Elections Bill

Lord Stunell Excerpts

Report stage
Monday 25th April 2022 Lords Chamber

We should beware of going down slippery slopes. The noble and learned Lord, Lord Judge, has performed a signal service in putting down these two amendments. I believe it is our duty, it is incumbent upon us, to curb that arrogance of power and to make sure that these clauses are deleted from the Bill, or that the Bill—for all that it contains some things that are entirely acceptable —falls. That is the ultimatum we must place before the Government, and I hope they will see sense.

[Lord Stunell (LD)]

My Lords—

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, it is difficult when—

[Lord Stunell (LD)]

I thank the noble Lord for giving me a turn.

The case for removing these two clauses has been very powerfully made already and my point is a very simple one which will not take very long. These two clauses, if they remain in the Bill, will put in the hands of a successor Government the essential tools to immediately deliver the very first task set out in the autocrat’s playbook, which is, when you take power, make sure you keep it. In the UK, that means making sure that you have the Electoral Commission under your thumb.

I have only one question for the Minister. Taking him fully at his word that this Government would never in a million years use these powers to distort the actions of the Electoral Commission or to raise the bar for opposition candidates or opposition parties in any future election, what happens when the million years is up? What happens when another Government, less imbued with the deep ethical principles so clearly exhibited by the present Administration, less scrupulous about fair play and with less commitment to truth and accuracy, take office? Can the Minister say to your Lordships, in all honesty, that it will be safe to put these clauses on the statute book, just waiting for that ruthless successor Government to exploit? It could be an ultra-left Government with little regard for constitutional conventions, balancing the books or protecting industry from red tape, and perhaps ready to repudiate international treaties, undermining all those Conservative values that the Minister espouses so much.

Does the Minister think it is safe to leave these clauses in the Bill? I have seen the noble Lord in action. I do not believe that he is either so naive or so short-sighted as to believe it would be safe to do so, and it would not be in the long-term interests of the Conservative Party for these clauses to be in the Bill. I, my noble friends and other noble Lords all around the House have powerfully expressed the view that we are ready to help him get off the hook and to take these two clauses out of the Bill.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I apologise to the noble Lord, Lord Stunell, and to the House, for having pushed him so rudely.

When one sees the way the tide of opinion is flowing strongly, it is very easy to think that it is best to keep one’s head down and not provide a cautionary word about being careful what we wish for in taking these amendments through—should the House so decide. I note and appreciate the concerns expressed in powerful speeches this afternoon. These are replicated in the briefing from the Electoral Commission referred to by the noble Lord, Lord Grocott. Several letters in the correspondence columns of the broadsheets have carried an equivalent message.

I also recognise that the drafting of parts of these clauses can best be described as uncompromising. The noble and learned Lord, Lord Judge, referred to this, though I think he was slightly dismissive about the consultation processes provided for in Clause 15, in new Sections 4C and 4D. He pointed out that the procedures for scrutinising secondary legislation are proving increasingly inadequate and ineffective for modern conditions. He knows that I agree with him. I am pleased to be able to tell him and the House that the Secondary Legislation Scrutiny Committee, which I chair, will publish a further end of term report at the end of this week. This will give grist to his mill—and indeed to mine.

Among the concerns raised is the use of what can be described as tertiary legislation. I spoke to the noble and learned Lord in advance of this debate, so he knows broadly what I shall say about creating bodies over which there is absolutely no parliamentary control but which, none the less, have powers that concern some of the most fundamental aspects of our society. One recent example is the College of Policing, an independent body able to introduce regulations and codes that affect every one of us.

The noble and learned Lord, Lord Judge, and my noble friend Lord Blencathra have made common cause in attacking this. I entirely support them. To come to the point, I am not yet convinced that, if these two amendments were agreed, we would not be creating another body equivalent to the College of Policing, but this time for electoral purposes—an equally important part of our national life.

Am I enthusiastic about Clauses 15 and 16? Not at all, but I recognise that there is some parliamentary involvement and approval in this process. If these amendments were accepted, the Electoral Commission—with all the criticisms that have been made of it, fairly or unfairly—would float free from any even minor scrutiny or accountability. In my view, this would be even less desirable.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I was delighted to sign this and could see from the Minister’s face that he was thoroughly in agreement that it is a very good move. It is a constructive suggestion of something that desperately needs doing. We are rushing to pass legislation in this final week or fortnight of the parliamentary Session, but this is an early request to the Government to include an election law consolidation Bill in the coming Queen’s Speech. It would be very practical and, as the noble Baroness, Lady Hayman of Ullock, said, it would have cross-party support, so it would be a rather nice note to start the new parliamentary term on.

A lot of the groundwork has been laid already. The Commons Public Administration and Constitutional Affairs Committee produced a report on this in 2019 and the Law Commission has done extensive work as well, which culminated in a 207-page report with 106 recommendations. That sounds a very practical document. The recommendations include consolidating and modernising our election law, which is currently spread across 55 Acts of Parliament and over 200 other pieces of legislation, most of which are derived from centuries-old rules and regulations.

Modern electoral rules would make the administration of elections more straightforward and more accessible to the public. Better democracy is better for everyone, as we have been saying all afternoon, but this will be particularly important for independent candidates and smaller parties, because at the moment they are navigating a minefield. There is always a risk of innocent mistakes.

I hope that the Minister will respond very positively to this and that we can look forward to supporting him wholeheartedly on a Bill in the next Session.

[Lord Stunell (LD)]

My Lords, I support this amendment. It is about as modest as it could be without doing anything. It is saying that there should be a review over the next 12 months, at which point the Minister should publish a timetable for undertaking a wholesale review and consolidation of electoral law. A senior civil servant commissioned with producing an amendment which kicked something into the long grass could hardly have come up with something better, so I very much hope that the Minister can accept.

Picking up one point that the noble Baroness, Lady Hayman of Ullock, made, the core of this is the complexity of existing legislation. It is not even that it fits together like a neat jigsaw. It is several different jigsaws which must be made to fit together to produce certainty by those who are conducting elections or participating in elections.

I draw the Minister’s attention to the fact that he has explained that what to some of us look like extremely threatening changes to the law proposed in the Bill have been described by him as simply clarification where things were uncertain or unclear or where people had come to different conflicting conclusions. That is the situation we are facing as far as all the legislation governing elections is concerned.

The noble Baroness, Lady Jones of Moulsecoomb, has already referred to the Law Commission’s report. The work is there; it is ready. The Electoral Commission, in its briefing to noble Lords this week, talked about the complexity and difficulties for campaigners, candidates and their agents in finding their way through the current forest of legislation and the difficulties that electoral registration officers have in interpreting how each bit might apply in particular circumstances. The fact is that, as amended or not, the Bill is adding another layer—a different jigsaw—with overlapping patterns and places which will make it more confusing to get through.

I notice that the Minister several times said, “Don’t forget that a lot of the people conducting elections are volunteers.” He did not add that, in many cases and particularly for agents, they are not volunteers at all; they have to be press-ganged into doing a very difficult and challenging job. They surely deserve to have a simple playbook in front of them which incorporates all the legislation that they are expected to have regard to and to take account of.

Having said “have regard to”, that was a key phrase in our earlier discussion. The difference between “consulting” and what the outcome of that might be and “having regard to” and what the outcome of that might be is central here. PACAC has produced a report which I would like the Minister to have regard to. CSPL has produced recommendations about consolidating electoral law, which I would like the Minister to have regard to. The Law Commission has produced a draft set of proposals, which I would like the Minister to have regard to. I do not want him to consult on all this; I want him to have regard to it and to get on with it.

In default of that, I strongly support Amendment 64, which gives him an escape hatch from confronting the issue I have put in front of him. All we are asking for is that, over the next 12 months, he draws up a timetable for undertaking a wholesale review and consolidation of electoral law. It could hardly be a lighter-touch amendment seeking to see this legislation consolidated as it should have been a long time ago. I hope that in the interests of clarification, which the Minister is so keen on, and in the interests of having regard to advice, he will proceed by accepting this amendment and taking a small step forward to improving the lot of agents and candidates across the country.

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Moved by

[Lord Stunell]

71: Clause 65, page 68, line 17, at end insert—
“(3A) Regulations must not be laid to bring Section 13 into force until—(a) a period of two years has passed since this Act is passed;(b) the Secretary of State has published guidance to Electoral Registration Officers on how to determine whether an applicant has been resident in the UK for electoral registration purposes; and(c) the Secretary of State has laid before Parliament a report on—(i) the documentary evidence that may be required to support an application to be an overseas elector;(ii) the length of time that a person must have previously been in the UK in order to register as an overseas elector;(iii) the security and timeliness of the delivery and return of ballots to overseas electors; and(iv) such other matters pertaining to the registration of individuals as overseas electors as the Secretary of State considers relevant.”Member’s explanatory statement
This amendment delays section 13 (overseas electors) coming into force for a period of at least two years, and until the Secretary of State has laid a report before Parliament on how the system of registration of overseas electors is to operate. It also requires the Secretary of State to publish guidance to Electoral Registration Officers.

[Lord Stunell (LD)]

My Lords, Amendment 71, in my name and that of my noble friend Lord Wallace of Saltaire, relates to the implementation of Clause 13, which deals with the qualification for voting arrangements for overseas voters. It is my contention that this part of the Bill is technically flawed and, as drafted, will produce some strange and surely unintended consequences. We believe it essential that these are overcome before it is brought into force, and doing that needs some serious thought, proper consultation and the preparation of guidelines and advice.

I raised some of my concerns in Committee, where the noble Baroness, Lady Scott, undertook to write to me. On 6 April, the morning of Report, I received a letter from the noble Baroness which basically said on the two issues I raised: “Well, it’s okay; let’s just see how it goes”. I will deal with those two points first, but I shall come to others despite the lateness of the hour and where we are in the proceedings.

The first issue I raised in Committee, which was addressed to some extent by her letter, was the extremely loose definition of who can qualify to go on the overseas register of voters. Clearly and unambiguously, an individual must be a British citizen, but what else do they have to be to get on the register? The clause says they must have been previously resident in the United Kingdom. Nothing is specified about for how long or at what age. I will again mention the case I raised in Committee: a British couple make a touch-and-go visit back from Ghana, during which their baby daughter is born and following which they emigrate to Switzerland. In due course, at the age of 18, that baby can claim an overseas voting right, never having been on a UK register and never having been eligible to be on one, because they were not 18 before they left the United Kingdom.

The Minister’s answer was that electoral registration officers were the best people to judge whether a person claiming the right to join the overseas register had in fact acquired a UK residential qualification by virtue of spending, for instance, a fortnight in a maternity unit in Hounslow, or not. I gently suggest to the Minister that it might be better to establish a more formal and regularised decision-making process, one less prone to happenstance and the personal inclinations of electoral registration officers. There is reference in the Bill to guidance being produced, although it does not say that it will tackle that issue. Indeed, the letter from the noble Baroness does not suggest for a moment that such advice will be made available. Noble Lords will see in the amendment we have tabled that that is one of the matters we say needs to be considered and resolved before this section comes into force.

In the same debate, the noble Baroness, Lady Scott, said that the aim of this proposal was that those on the overseas register would be in exactly the same position as those on the UK register of voters. I take that to mean that, apart from anything else, they will be free to nominate someone to be a candidate for a public election in the constituency in which they are registered. No one seems to know whether that includes nominating for a local government election, or if there is a mechanism for deciding in which ward they could validly nominate.

Clearly, if you were on the overseas list by virtue of appearing on a previous electoral register, that matter is settled because you would have appeared for a particular locality, which will place you in a ward and make you eligible to nominate somebody for it if you wish. However, for someone with a residential qualification, it is perhaps less clear-cut whether ward B in the maternity hospital at Hounslow—where you happen to have been born when your parents came off the aeroplane—is or is not in a particular ward. That is a small detail compared to some of the other matters I will raise, but it certainly indicates that there are matters which are not yet clearly resolved.

So, it is clear that if a person can nominate somebody, whatever they can nominate them for—whether it is restricted to parliamentary elections because it is on a constituency basis, or whether they are located sufficiently well to nominate somebody for a local government ward—they must also be free to stand for election as a candidate themselves in that election if they should choose. So far, so equal. The aim of making sure that overseas voters have exactly the same rights and duties as electors in this country is achieved.

But surely it ought also to mean that if convicted of an offence—let us say death by dangerous driving—that results in a sentence of more than six months, they should be disqualified from standing and if elected at the time, they should lose office, just as someone on the UK register would. I remind the Minister that the Government strongly resisted efforts by my noble friend Lord Thomas of Gresford to permit some categories of prisoners to vote. The Government are completely hostile to the view that people should have a vote in prison, never mind that they might stand or even be elected or retain their office if in prison. However, the answer that the noble Baroness gave me in that letter was that being in a foreign prison was not in fact a bar to standing for public office in the UK; she made the perfectly fair point that the UK Government—and by extension, electoral returning officers—would have no knowledge of foreign court decisions and that in any case, in many jurisdictions, imprisonment could result from acts that were legal in the United Kingdom.

That is a pretty good reply—well drafted and crafted—but it does not really bear examination, because there are a number of things which candidates cannot be: they cannot be bankrupts, and they cannot be suffering from a mental illness that requires their detention. But those matters are simply covered by a candidate’s declaration: you tick a box to say that you are not bankrupt and that you are not detained. The Government and the electoral registration officer do not have the means of checking that either. So, these matters could perfectly well be dealt with by having an additional question on the declaration at nomination stage. It would have exactly the same strength and capacity as a tick in a box to say, “I am not bankrupt, and I am not currently detained under the Mental Health Act.”

The argument that it is impossible to monitor whether an overseas elector is in prison and therefore should or should not be able to nominate somebody—or indeed continue to hold office having been previously elected—is therefore mistaken. At the moment, the Government seem to accept that there is nothing they can do about it. It seems to me obvious that a simple modification to the declaration form would solve the problem and, of course, falsification of the declaration form is an election offence. So, such an additional, suitably worded declaration by an overseas voter would be open to exactly the same challenges as the standard declaration form. In most cases, the mere existence of such a declaration would be a sufficient deterrent and any that got through would likely soon be weeded out by opponents and certainly would not need extensive investigation by the Government.

Surely the Government, with their fetish of preventing prisoners from voting, are not going to allow overseas voters not only to vote but to be eligible to stand while they are serving a sentence in a foreign prison for what would be an imprisonable offence in this country—I mentioned dangerous driving.

It might be asked what category of voter would benefit from this; well, there might be a few “McMafia” figures languishing in a Spanish prison, I suppose. All that could be dealt with by an amended declaration form, which could be produced in about 10 minutes with a word processor. But there is no provision for such a thing in Clause 13, and the Government seem to have given up in the attempt. So far, so wrong.

Let us consider the case of a councillor elected to a UK local authority—say, the London borough of Richmond or the Wiltshire county authority—who then moves to Dover. When the new register is published, they lose their vote in their old area and, lacking another qualification, have to vacate their office. I ask noble Lords to consider what would have happened if that councillor had moved a further 30 miles east, to Calais. They could of course then ask to be put on the register of overseas voters for their former area. Long before the new register comes into force, they would be qualified by virtue of that to continue in office and indeed to re-stand in due course. Do the Minister and her advisers know that Clause 13 produces the absurd result that such a councillor moving to Dover is disqualified but one moving to Calais is not?

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[Baroness Scott of Bybrook (Con)]

Then we come to somebody who was born in the UK and has been here only a short time. The current system allows citizens who have left the UK while still too young to vote the ability to register based on their parents’ or guardians’ previous registration, but this is subject to an arbitrary 15-year limit from when they left the UK. The Government want to remove this arbitrary time limit placed on British citizens who have resided here, and we have no intention to replace one time limit with another arbitrary time limit requiring a British citizen to have been resident here for a certain amount of time before they can register.

The Bill will permit children who are UK citizens and who have resided in the UK to be eligible to vote based on their previous residency here. They would apply in respect of their last place of residency. This approach is consistent with the principle of individual responsibility, which underpins individual electoral registration and ensures that voting rights are not conditional on choices made by others in the past.

Additionally, British citizens born outside the UK must have previously resided in the UK to become eligible to register to vote. In practical terms, someone who left the UK at a very young age or who was present in the UK only for a short period will find it difficult to demonstrate their residency at a particular UK address to the satisfaction of a registration officer. I would also question whether anyone who lived in the UK only for a very short period would have any interest in voting in our elections. I hope that gives a little more substance to my letter.

I now turn to the amendment as tabled. The purpose of this amendment would be to delay the commencement of Clause 13 of the Bill for two years, and the extension of franchise for parliamentary election for British citizens overseas. The amendment would require three conditions to be met before regulations could be laid to bring into force the provisions. The Government have set out much detail on the intended registration and voting process in their policy statement Overseas Electors: Delivering ‘Votes for Life’ for British Expatriates. Referring to the condition whereby the Secretary of State must publish guidance for EROs on determining residentiary requirements of overseas electors, further detail on residency requirements will be set out in secondary legislation.

Electoral registration officers will require British citizens who have been resident, but not previously registered, to demonstrate to their satisfaction that they were resident at a specific address. Section 5 of the Representation of the People Act 1983 already lays down the general principles regarding residence for electoral purposes which a registration officer must consider and apply in deciding whether a person is resident at a particular address for those purposes. The same approach to residency must be applied within these boundaries and, as now, registration officers will be supported in this by guidance from the Electoral Commission, with whom the Government will work closely.

As for reporting on documentary evidence, the Government intend to align closely with the existing exceptions process for those domestic electors for whom an ERO considers that additional evidence is required to verify their identity. This is a system that administrators are already familiar with, and we will continue to work closely with stakeholders to develop this process. It will be set out in secondary legislation and be subject to parliamentary scrutiny and to parliamentary approval.

The noble Lord, Lord Wallace, brought up the issue of how we will help expatriates—the people who want to vote from abroad—to actually be able to vote. I think we had a discussion on overseas constituencies, and it was made very clear that the Government are not supporting that idea. However, the Government have already improved the delivery and return of ballots to overseas electors by working with Royal Mail and the British Forces Post Office, expediting dispatch abroad, and funding the use of the international business response licence that expedites the return of the ballot packs from overseas in a large number of countries, as well as covering any postage costs that might otherwise be incurred.

This Bill will also introduce an online absent vote application service that will allow overseas electors more easily apply for a postal vote.

[Lord Stunell (LD)]

Will the Minister develop her point about the repayment of postal charges? Perhaps she could explain to noble Lords a little more fully what that implies. To my knowledge, a number of local authorities are quite clear at the moment, that they will not post postal votes overseas because of the additional expense. I do not know if there is an element of guidance needed in those cases, but there might be an element of finance. If one had a constituency with the projected 4,000 or 5,000 overseas electors, it would be a significant additional sum. I wonder if she could say something about the Government’s financing of that additional outlay.

[Baroness Scott of Bybrook (Con)]

I cannot at the moment. It may be part of the burdens that will be financed for local authorities, but I will get the noble Lord a complete answer on that and make sure it is absolutely correct.

The introduction of votes for life is a manifesto commitment. The framework for the previous Overseas Electors Bill 2017-19 was subject to a full public consultation and has formed the basis for this refreshed policy. Since then, we have worked very closely with the electoral service managers and administrators on the design of the processes, and the practical implementation of these measures. On this basis, it is unnecessary to further delay the extension of the franchise, and I hope the noble Lord will feel able to reconsider and withdraw his amendment.

[Lord Stunell (LD)]

My Lords, I thank the noble Baroness, Lady Scott, for her reply and for the much greater level of detail that she has provided on this occasion, which I very much welcome. She has indeed answered some of the points that I raised, although I think she skirted over the possibility of amending legislation so that some account could be taken of imprisonment overseas. As I say, that is a matter that could easily be covered by an extension of the existing declaration that candidates make.

I am not satisfied with the answer that I have had but at this time of night I certainly do not intend to force my view upon the House. I just say to the Government that I think some of these matters will come back to haunt them, and at that moment I hope to be present to witness the haunting taking place. With that said, I beg leave to withdraw the amendment.

Amendment 71 withdrawn.

Elections Bill

Lord Stunell Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 6th April 2022 Lords Chamber

[Lord Stunell (LD)]

My Lords, it has been a very wide-ranging debate, considering it is Report. I wonder if the House would accept me just focusing as far as possible on the business in hand and the amendments that we have in front of us.

First of all, I fully understand and accept the argument that the noble Lord, Lord Woolley, has put forward: that if everything else fails, we must pull this out. That would be my starting and finishing point. My noble friend Lord Rennard and I have tabled Amendment 7, which has found some favour among those who have spoken. We have made it clear that that would be something which fits very well alongside the amendment in the name of the noble Lord, Lord Willetts. It is just an addition to his list, but a very important addition, because people are familiar with the poll card. Those of us who, on election days, very often spend time trying to persuade people to put their coats on, always hear things like, “Oh, I have lost my poll card.” People already assume that the poll card is a significant thing that they need to take with them, so when it comes to acceptance, we understand it to be very much there.

To the noble Baronesses, Lady Verma and Lady Fox, and the noble Lord, Lord Desai—who feel that, somehow, to point to the fact that having voter ID might deter some people from voting is to pick out, talk down to or single out people in a patronising way—I say that we are responding to the evidence of the trials which were conducted by the Government and which are fully certified facts. The facts are that in those places, fewer people finished voting because of the ID system: it is not a huge number fewer but, as the noble Lord, Lord Willetts, pointed out, if we were to read across the data from those experiments, it would be 2 million voters who failed to vote as a result of having such a system in place.

The Government understand that there could be a problem, which is why they are prepared to spend somewhere between £120 million and £180 million getting those 2 million voters to come and vote—if only they would spend that amount on the 8 million not registered, it would be a very good thing. If we acknowledge that there is a problem whereby introducing voter ID reduces participation, let us look at the most straightforward ways of rectifying and lowering that barrier.

I believe that all these amendments are, in their different ways, making the same point. Obviously I want to make the case for Amendment 7 in particular, but I certainly do not exclude the others. It is important to get participation; it is important to consider the issues that have already been raised in the excellent speech by the noble Lord, Lord Willetts, where he prayed in aid the Pickles report. As I have said to the House before, I served with the noble Lord, Lord Pickles, in the department for a couple of years and I never heard him in favour of red tape. I cannot imagine that he seriously thinks that spending £120 million or £180 million on this scheme makes any sense when he has said himself that a utility bill would do.

I say to this House that, from every side, the argument is made that there will be a reduction in participation with an ID scheme. It will be lower if we can manage to make it without photo ID. The pilots showed exactly that: the schemes where no voter ID was needed had fewer voters refused and losing their vote. It is a very straightforward issue; there are bigger issues floating around, which we have heard already, but surely this House must understand and accept the case that, if we want to keep participation up, we need barriers to people going to vote to be at the lowest practical level consistent with a secure system.

[Baroness Hayman of Ullock (Lab)]

My Lords, I will not go over the ground that we have already covered—and there has been a lot—and will just speak to my amendments. Like a number of others in this group, they extend the acceptable forms of voter identification to broaden them out to include non-photographic identity documents. As has been said, the manifesto commitment for voter ID was not for photographic ID, but we respect the fact that the Government had a manifesto commitment to voter ID. My Amendment 6, in particular, would allow a polling card to be an accepted form of identification and would allow for the vouching system currently used in Canada, for example.

The noble Lord, Lord Rennard, mentioned that polling cards were used as the primary method of identification in some of the pilot schemes that were held and that some used a QR code on the card, which was then scanned at the polling station. It was felt that this was more secure but more expensive. However, the evaluation of the pilots also noted that:

“It is also not clear … that additional IT in polling stations … is absolutely necessary to support the use of the poll card as a form of identification.”


We believe on these Benches that the Government need to look at this again.

The Government could learn a lot from Canada on this subject. Its vouching system allows a citizen who has ID and appears on the electoral roll to sign an affidavit to confirm the identity of another voter who does not have identification. That provides a clear paper trail linked to registered voters so that any suspicions of irregularities can be investigated. It also ensures that many citizens without identification, or those who feel uncomfortable providing it, can still cast their vote.

In Canada, it is possible to present identification in up to 50 different formats. We have heard that even the Pickles report, on which the Government are leaning heavily in this part of the Bill, suggests that utility bills could be included as a possibility. The noble Lord, Lord True, has stated that photographic ID is the most “secure and appropriate” model of voter ID. However, the Government have consistently failed, as we have heard today from other noble Lords, to provide any evidence of personation fraud that would require this tightening of security around voters’ identity. As the noble Lord, Lord Woolley, said, the case for fraud has not been made.

In Committee the noble Baroness, Lady Scott of Bybrook, said that the issue is

“about making sure that as many people as possible take up their democratic right to vote”.—[Official Report, 17/3/22; col. 550.]

I could not agree more. However, if that is the Government’s intention, I genuinely do not understand why amendments to expand the acceptable documentation are not being accepted. We debated this long in Committee. We have heard again today that the availability of identification is lower among a certain number of groups and would likely drive down participation. There is clear evidence to support this. As my noble friend Lord Grocott said, this is a new hurdle. Enabling non-photographic identification and the adoption of a vouching system, as in my amendment, would help to mitigate against the serious concerns about the impact of photographic voter identification on turnout.

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It is for that reason that I have tabled this amendment. I wanted to put on record that, unfortunately, the reply from the Electoral Commission is not clear, because it conflicts with what the Electoral Commission says when asked by other people about family voting. Family voting is a malaise that affects not just Tower Hamlets; that is where the debate is concentrated, but we know that it affects many parts of the country. It should be stopped immediately; it should not need this legislation to pass. It is for that reason that I have raised this debate yet again—because the Electoral Commission will not provide consistent advice as to its approach to family voting. I beg to move.

[Lord Stunell (LD)]

My Lords, I have a great deal of sympathy with what the noble Lord, Lord Hayward, has put in front of your Lordships just now. I would have hoped to hear a much more vigorous response from both the Electoral Commission and the Metropolitan Police if the facts are exactly as he brought them to this House. I hope very much that the Minister in replying will be able to give assurances on the one hand about past history but, more importantly, that the department will write in appropriate terms to the Electoral Commission and the Metropolitan Police setting out clearly the best legal advice of the department’s lawyers on the interpretation to be put on current legislation. If the Minister is not able to offer us that course of action, I suggest that the noble Lord, Lord Hayward, may want to push his amendment a little further.

[Lord Collins of Highbury (Lab)]

My Lords, I, too, have sympathy with the noble Lord, Lord Hayward. Certainly, this is a matter of concern. I will stress a point he has made: the law is clear, and there is no ambiguity about that. So, if there is an issue, I think it is a matter that the Minister should raise with the Electoral Commission.

Over the many years that I have been campaigning, I have been in no doubt about the authority of the police who patrol around polling stations. It is absolutely clear. One of the things that worries me about the amendment is that it is not necessarily going to clarify something which I think is clear in law. I think it is the responsibility of the Minister to make this clear to the Electoral Commission. The police should have that responsibility; they do not need the advice of the Electoral Commission to apply the law, which, as the noble Lord said, has been there for hundreds of years.

So I hope that the Minister, when he responds, will be very clear that the law needs to be applied and that there is no doubt about it. If there is ambiguity from the Electoral Commission, I hope that the Minister will point it out to it.

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[Lord Hayward (Con)]

My Lords, before I make any comments in relation to this group of amendments, I want to pay credit to my noble friend Lord Holmes. I chose not to speak in the previous debate but, throughout my adult life, I have suffered from losing my eyesight—not on a total basis but on a substantially partial basis—on impromptu occasions. Although it has never happened to me, I can imagine going to a polling station and suddenly being confronted by the fact that I cannot see the ballot paper properly. Many Members of this House know that I used to referee rugby matches. Now, I vouch that I never lost my eyesight in the middle of a game, despite what many of the players and spectators may have thought.

More seriously, I will move on to Amendments 31 to 33 and 38 in my name—they involve many words for what I thought would be a simple amendment. Having spoken in Committee on this matter, I intend to speak now only briefly.

In Committee, I made the point that there is an anomaly in our legislation. Had it operated at the time, it would have debarred both Jim Callaghan and Harold Wilson standing as James Callaghan and Harold Wilson because, in both cases, those were their second names and what they were commonly known as. The Welsh Senedd has already made this amendment to its legislation; my Amendment 31 is intended to bring us in line with the Senedd. It makes sense that, where people regularly use their second name as their main forename, they should be able to do so on a ballot paper so that, when people go to vote for them in a polling station, they recognise their name when confronted by it.

I thank the department officials and the Minister for their help in drafting what look like enormously substantial amendments but achieve a relatively small but sensible change to our electoral law. On that basis, I beg to move.

[Lord Stunell (LD)]

My Lords, I simply want to declare an interest in that, if this amendment is passed, I should be a beneficiary of it. When I first stood, as the noble Lord referred to, it was possible to use your commonly used name. On that occasion, I appeared as Andrew Stunell but, subsequently, I have had many a tussle with electoral returning officers. Fortunately, it is not an issue in this place but, I have to say, it is a common-sense amendment. I very much hope that the noble Lord has had some quiet discussions with the Minister and we are about to get a positive surprise.

[Lord Khan of Burnley (Lab)]

My Lords, I will briefly address the points made by the noble Lord, Lord Hayward. There is an anomaly. The Welsh Senedd has made this clear and made important changes so I am sure that we can get this simple amendment accepted, in the spirit of the previous group. The Minister—I am glad to see him back in his place; I wish him the very best of health—accepted the previous amendments, so I am sure that it will be straightforward for him to accept these ones. I look forward to his response.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

My Lords, I have attached my name to the amendment that Clause 12 not stand part of the Bill. I will speak briefly to it. It is a great pleasure to follow the previous three speakers, who have already covered most of the ground.

The noble Lord, Lord Kerslake, made a short assertion about this not being part of the Conservative manifesto in 2019. It is worth reading his wonderful tour de force through the Conservative manifesto from our Committee debate because it sets it out in chapter and verse. To match that, I will read out one sentence from the PACAC report:

“Regardless of the benefits or disadvantages of the changes made by the Bill to the electoral system for those offices, the manner in which the proposed legislative change was brought about is unsatisfactory. Making changes such as this after the Bill has been introduced and debated at Second Reading is disrespectful to the House.”


That was the independent conclusion about the process in the other place. It was not a manifesto commitment. Independent oversight suggests that the way in which it was done was not appropriate.

My noble friend Lady Jones of Moulsecoomb spoke for us in Committee on this point. It is also worth saying that the Government set great store by the 2011 referendum in suggesting that people somehow or other voted for first past the post. That was 11 years ago. I speak to a lot of voters who are used to voting for whom they see as the second worst candidate to stop the worst candidate getting in under first past the post. There were only two choices on the ballot paper in the 2011 referendum—neither was proportional representation. “#AVisnotPR” sums it up nicely. We really do not have any idea of the people’s view as to what our voting system should be. We should have a people’s constitutional convention. If the public were polled and asked, “Do you think our politics are broken?”, I think you would find a massive consensus. My answer to how we find a way forward is to go to the people and work out what they want. It is clear that what the Government have put before us in Clause 12 has no democratic legitimacy. Your Lordships’ House should remove it.

[Lord Stunell (LD)]

My Lords, the case is there. We rehearsed it extensively in Committee. At the time, we heard some very interesting arguments put forward by the Minister. I hope that he has had chance to revise his views and that we shall hear shortly that he will accept the amendment. I do not want to prolong this, so I shall leave it there.

[Baroness Hayman of Ullock (Lab)]

He has had a Covid revelation.

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Lord Stunell Excerpts

Lords Hansard - Part 2 & Report stage
Wednesday 6th April 2022 Lords Chamber

[Lord Eatwell (Lab)]

My Lords, I was struck by the argument from the noble Lord, Lord Rennard, that one does not have to opt in for taxation. I think he is arguing for “no taxation without representation”, a slogan which if recognised in the past might have eased some pain which a British Government suffered.

At the end of the debate in Committee, I put it to the Minister that someone should turn up at a voting booth with a British passport and a driving licence and would then be denied the right to vote. She replied, “Of course, that person’s not on the register.” That seemed to illustrate the total folly of the current restrictive register, and the wisdom of the amendment tabled by the noble Lord, Lord Woolley, which I urge everyone in the House to support and so maximise the number of people who are engaged in the civic process of voting in this country.

[Lord Stunell (LD)]

I want to support what the noble Lord, Lord Woolley, has said, and perhaps try to pre-empt the Minister in her reply. In Committee, two reasons were given. One was a mitigation that HMRC in fact informs those who receive new national insurance numbers of their right to vote, which started in September last year. That is excellent and if HMRC can inform them, I am sure they could send the form to go with it. The noble Baroness also said:

“Automatic registration would threaten the accuracy of the register and … enable voting and political donations by those who are ineligible”.—[Official Report, 23/3/22; col. 1058.]


There is a measure of disconnect between the Government’s approach to this issue and their approach to overseas voters. Will the Minister consider whether it would not be sensible to go one more step with HMRC and to link their policies for overseas voters with the domestic voting system?

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the noble Lord, Lord Woolley, for tabling this amendment, to which I have added my name, and for his introduction. I also thank noble Lords for their brief comments.

I want to refer back to Committee. The Minister, the noble Baroness, Lady Scott of Bybrook, said that the amendments proposed on automatic voter registration

“contradict the principle that underpins individual electoral registration: that individuals should have ownership of, and responsibility for, their own registration … Automatic registration would threaten the accuracy of the register and, in doing so, enable voting and political donations by those who are ineligible.”—[Official Report, 23/3/22; col. 1058.]

However, does she agree with me that there are underlying problems with the status quo, such as millions of eligible citizens being incorrectly registered or missing from the registers entirely, major strains on the system during a last-minute registration rush ahead of election days, and resource problems for electoral officials? A founding principle of democracy is political equality. We therefore need to ensure a level playing field on election day. AVR could boost voter registration rates among under-registered groups to create this more level playing field.

It is already current law that every citizen is registered. People often get letters saying that they will be fined £60 if they do not register. Voter registration is not an opt-in process. AVR is a solution that would help administratively to best realise what appears to be the current goal of full, compulsory registration. AVR is also the norm, not the exception, in countries around the world. Many countries that have historically not had AVR because of the absence of a population register are now increasingly introducing either direct enrolment for specific groups or assisted voter enrolment through other public agencies. Where they have been designed well, these innovations have proven to be able to deliver cost savings and boost voter registration for specific groups.

As the noble Lord, Lord Woolley, said, we can give millions of people not on the electoral register a voice. If he chooses to divide the House on this amendment, we will support him.

--- Later in debate ---

[Lord Stunell (LD)]

My Lords, Amendment 44 is in my name and that of the noble Baroness, Lady Bennett of Manor Castle. The question of the franchise and of entitlement has surfaced in the course of these debates. It is clearly an important matter which could do with elaboration. However, rather than launching out on that at this time, I just make one point to the noble Lord, Lord Hodgson. The right to vote is certainly entirely different from the right to have a driving licence; for one thing, you do not have a right to a driving licence, as you must sit and pass a test. If you, as a foreign national, want to be a British citizen you must sit and pass another test. However, most of the 47 million on the current electoral roll have not had to sit and pass any test. It is their entitlement to be on the register, as it is the entitlement of other UK citizens not on the register.

Amendment 44 is looking at those who in fact have a right of permanent residence in this country, but do not have the right to vote because they are not British citizens. Therefore, this is about enfranchisement of those who are not British citizens. They are people with

“the right of abode … settled status under the EU Settlement Scheme … indefinite leave to enter … or … indefinite leave to remain in the United Kingdom”.

These people will be in receipt of local government services during the whole of their time in the United Kingdom. If they are property owners, these are people who will contribute to council tax their whole time in the United Kingdom and to taxation of all sorts, some of which—not enough—filters its way back to local government as well.

It is entirely appropriate for them to have the opportunity to play an active part in the distribution and provision of services and in the application of local government taxation. On this simple basis, those with a lifelong residence in this country, who are both receiving and contributing to the payment of local government services, should have the opportunity to participate. They should be able to contribute significantly to the way in which these resources are used and applied.

This is a straightforward, self-contained amendment which I hope is, to a large extent, self-explanatory. Unfortunately, in the light of the debate so far, I cannot believe that the Minister will be terribly sympathetic to it. It is part of a much wider discussion that we in this country need to have about the nature of citizenship and participation. We need to discuss the way in which we see the evolution of our democracy as we become, over future years, an ever more diverse nation with an ever more diverse population.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, Amendment 44A, in my name and the name of my noble friend Lord Murphy, deals specifically with the Northern Ireland situation. The noble Baroness, Lady Suttie, raised this in Committee, eight or nine days ago.

The basic purpose of this amendment is to seek to delete paragraphs 7 to 9 of Schedule 8. This would ensure that all EU citizens lawfully resident in Northern Ireland can continue to stand as candidates and vote in district council elections there. Obviously, this does not apply to British and Irish citizens; however, it does apply to other EU citizens who have arrived to reside in Northern Ireland since January 2021 and whose country does not have a reciprocal agreement with the UK.

This is reminiscent of the “I” voter situation in Northern Ireland which was removed by the Elected Authorities (Northern Ireland) Act 1989 when universal franchise was granted in Northern Ireland. This particular set of amendments deals with this important democratic issue of the extension of the franchise to all and ensures that this important principle is adhered to.

I would gently say to the Minister that elections and the right to exercise one’s franchise in Northern Ireland are emotive issues. The Government should not go down the road of creating problems with other EU nationals. In many ways, this would recreate a border again on the island of Ireland. It is highly emotive and politically charged, as it deals with EU citizens and excludes them from the right that they had to vote and to stand in council elections.

As a Minister in the Northern Ireland Office in 1998, my noble friend Lord Murphy was one of the principal negotiators in ensuring that both the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission were set up under the Good Friday agreement. Under the Northern Ireland protocol as negotiated by the UK Government with the EU, both commissions were given responsibility for—shall we say—managing Article 2 of the protocol, which deals with the rights of individuals. Article 2 states that there must be no diminution of rights, safeguards and equality of opportunity provisions, as set out in the Good Friday agreement, resulting from the UK’s withdrawal from the EU.

If passed into law, this provision in the Bill will create two new types of EU citizenship for the purposes of UK election law—a qualifying EU citizen and an EU citizen with retained rights—in addition to a category of EU citizens who do not fall into either of these categories.

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Wednesday 23rd March 2022 Lords Chamber

[Lord Stunell (LD)]

My Lords, I want to make a brief contribution on Amendment 144C in the name of my noble friend Lord Shipley, relating to proportional representation in local government. My noble friend Lord Scriven, the noble Lord, Lord Murphy, and others have spoken on it as well. I want to pick up one remark made by the noble Baroness, Lady Noakes, that the problem with, for instance, the European elections and the nature of the voting system for them was that those elected were too distant from the electors. I will make a couple of points relating to local government, which I think might be relevant.

Last May, in the local elections, 3.2 million people voted Conservative but still found themselves in a local authority that had no Conservative councillors at all; 40,000 of those were in Manchester, the neighbouring authority to my authority of Stockport. Those 40,000 people voted Conservative, but they did not get one Conservative councillor elected in Manchester. In fact, there has not been a Conservative elected to Manchester City Council since 1992. There are actually a large number of local authorities where one or the other of the two big parties does not have any representatives at all in that area.

The Conservatives have no councillors elected in Newcastle, Norwich, Newham, Oxford or Cambridge. There is a list, but I will not go on any further than that. Conversely, of course, there are plenty of Labour voters who are not represented at all by a councillor in the authority in which they reside: 5.8 million Labour votes were cast for candidates in local authorities where no Labour councillor at all was elected. When it comes to being distant from the electors, we need to bear in mind the very polarising effect of first past the post in quite a number of our local authorities.

One place where Labour has no councillors is the Royal Borough of Kingston upon Thames in London. Labour had 36% of the national share of the vote at the last round of elections but no Labour councillor was elected. That was a Liberal Democrat stronghold, but in Harrogate, 23.4% of people voted for Labour candidates, but none was elected. That is a Conservative stronghold.

It is not just whether people have representation at all in a local authority; it is whether they have appropriate representation, depending on the strength of the electorate who supported them. I picked out just one local authority—not completely at random—the London Borough of Richmond upon Thames, where in 2018, 78,491 votes were cast for Conservative candidates, and that resulted in the election of 11 councillors. In fact, they lost 28 seats as a result of that. They should, in fact, have had 20 seats, had there been a more proportional system.

I will not detain the Committee any further on that but point out simply that this amendment would introduce a change to local government in England which would be very much to the benefit of local democracy and the fair representation of people. It would give people a voice or a channel of communication, at least, for their point of view in practically every town hall in the country.

On the much wider debate that has opened up, I say simply to the noble Lord, Lord Grocott, that in 2010, when he stood for election on the Labour manifesto, he stood on a commitment to introduce the alternative vote. Indeed, I remember, as one of those who took part in the negotiations with the other parties in the start-up of the coalition Government, having a discussion with senior members of his party about that proposition.

[Lord Grocott (Lab)]

If I heard aright, the noble Lord said that I stood in the election of 2010, but I am afraid that I was in the House of Lords by that stage.

[Lord Stunell (LD)]

How very wise the noble Lord was to miss that particular commitment, is all I can say. A number of his colleagues were blessed by that promise.

To return to the substance of Clause 11 and the amendments moved by the noble Lord, Lord True, I remind the Committee that the Law Commission said that there should be a comprehensive overhaul of election legislation brought forward in a proper Bill. The Committee on Standards in Public Life produced 47 recommendations for change. Both those ideas have been rejected by the Government on the grounds that there has not been enough time, it needs more consideration and there would have to be wide consultation before they could be brought in. Finding that this proposition has been dumped into the Bill is inconsistent with that view against having a comprehensive reform of electoral law, along the basis that independent sources strongly recommend.

I was impressed by what the noble Baroness, Lady Hayman, said about the views of the Mayor of Greater Manchester and his reasoning. That struck me, as someone who lives in the area over which the mayor casts his eye, more powerfully than it probably did other noble Lords. There is no element of self-interest in what the Mayor of Greater Manchester said. It grieves me to say that in the May mayoral election, Andy Burnham, the mayor, won a plurality of votes in every ward in every borough in Greater Manchester, including all those which at the same time returned Tory, Liberal Democrat and, in one or two cases, independent councillors. There was a clear view from the electorate that they wanted this personality as the Mayor of Greater Manchester. Whether we like to believe it or not, it clearly transcended people’s normal political convictions to say, “In this case, I am voting for this person.” That characteristic of the mayoral election frankly surprised me, because I am not a supporter of mayoral systems, but I must admit there was a powerful advert for it in that election.

There is also a powerful advert there for the retention of a first and second choice. It was not called into play in Greater Manchester so we do not know what the figures would have been, but we know the result in those places where it has been called into play, and people have quite easily adopted the idea that they have a preferred candidate but, if it cannot be that one, there is another who would do as their second best. That development of an overall mandate is a powerful benefit of the present system, whatever its authorship might be. It might well be the first time that the noble Lord, Lord Campbell-Savours, and I have been on the same side of any discussion.

I strongly support the view that we should delete Clause 11 and retain the current system of electing our mayors in the big cities.

[Lord True (Con)]

My Lords, it has been a lengthy debate. I say to the noble Lord, Lord Stunell, that I have not presented any amendment. I am presenting to your Lordships’ House a Bill which has been passed by the elected House, and your Lordships are expressing opinions on it. It is certainly not the Government who have sought to Christmas-tree the Bill with a generalised debate on proportional representation. The actors in that are elsewhere than at the Dispatch Box.

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Lords Hansard - Part 2 & Committee stage
Wednesday 23rd March 2022 Lords Chamber

[Lord Stunell (LD)]

My Lords, I support both these amendments. Does the noble Baroness, Lady Hayman, wish to speak to her amendment first?

[Baroness Hayman of Ullock (Lab)]

Carry on—I will not be saying anything very different.

[Lord Stunell (LD)]

First, it is important to establish that there is a problem. I quote from the briefing supplied by the Electoral Commission to your Lordships on these amendments:

“There is more that could and should be done to modernise electoral registration processes in Great Britain, to ensure that as many people as possible are correctly registered.”


I believe I heard the Minister make the same point—that he believes it good public policy to get people registered. The Electoral Commission’s most recent estimate is that

“between 8.3 and 9.4 million people in Great Britain who were eligible to be on the local government registers were not correctly registered”.

As the noble Baroness, Lady Bennett, said, those figures were collected in December 2018. It says there are another 360,000 or more people in Northern Ireland not correctly registered. It also made the same point as the noble Baroness, Lady Bennett:

“Our research found that young people, students and those who have recently moved are the groups that are least likely to be correctly registered.”


Courtesy of the noble Baroness, Lady Whitaker, I would say that Travellers are very much in that group of under-registered people.

The Electoral Commission has published feasibility studies which identified that there is potential to evolve the current system. Those studies are reflected in the amendments before your Lordships today. Amendment 141 is one route to it—the two are not exclusive but it is one route—and Amendment 144B is another, to which we have added our names as well. It provides simply that, when a person is issued with a national insurance number, they receive their application for the electoral register.

The Electoral Commission makes two more points in its briefing:

“the education sector … could help EROs identify attainers and other young people. Also, data from the Department for Work and Pensions could potentially be used by EROs to register young people to vote automatically when they are allocated their national insurance number ahead of their 16^th birthday.”

I do not want to frighten the Minister; the Electoral Commission is not suggesting that they would vote from their 16th birthday but simply that, as attainers, that would be an appropriate time for them to apply to be put on as an attaining voter.

At least in theory, I think we are all in favour of all qualified UK citizens being on the electoral roll and we would all say that we would like them to exercise their vote. This legislation increases the number of people eligible to go on that register by virtue of what the Bill proposes to do in relation to overseas electors. We will debate that shortly.

Clearly, the Government do not have a problem with having a larger voting roll. They share the Committee’s view that it is desirable, in principle, that all eligible people should be on the roll, and yet, so far, they have been extremely resistant to doing that, as far as attainers in particular are concerned. In the light of the evidence that the Electoral Commission has produced, that it is a significant number and that there are solutions, and in a situation where the Minister has in front of him two amendments proposing practical ways to solve that problem, I hope that in winding up he will be able to say that he will take this back, give it further consideration and perhaps produce an appropriate government amendment on Report.

[Lord Eatwell (Lab)]

My Lords, the noble Lord, Lord True, has made two sets of powerful arguments about the right to vote. First, he made a series of powerful arguments in favour of photo identification as a right to vote and, just now, he talked about the rights and responsibilities of citizens with respect to prisoners’ right to vote. Would an acceptance of this amendment not represent some consistency, and a rejection of this amendment represent some very clear inconsistency in the following sense? What would the Minister do about a situation where someone turns up at a polling station with a British passport and a British driving licence on which their address is registered, and they are then refused the right to vote? They will have complied with everything the Minister argued for in the discussion of identification, but they will be denied the right to vote because of a variety of complexities that still bedevil our registration system.

Surely it is appropriate that there are democracies—Norway, Australia—in which a presence on the register and the right to vote are automatic and ensured by modern data systems that can easily do the job. Surely, if he has a degree of consistency in his arguments about this Bill, the Minister will support these amendments.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise again to speak to amendments in my name, starting with Amendment 144F, which moves us back to a larger scale. It would amend the part of the Representation of the People Act 1983 that deals with deposit forfeiture to return election deposits to all general election candidates whose registered party achieves at least one MP. Those Members of your Lordships’ House who are still paying acute attention at this hour of the evening might have noticed that I have to declare an interest at this point.

The “one MP” point is not chosen randomly or for self-interest. It surprises many voters when they find out that to stand in a general election you have to pay a £500 deposit. Maybe many say, “A one-off payment of £500 is not that large a sum of money”; it is for many people in many communities, but maybe it does not seem that much. However, put that at a national scale: to take the example of the Green Party in the 2019 election, 465 lost deposits cost us £232,500, the best part of a quarter of a million pounds. I am aware that for some political parties that might look more or less like change down the back of the sofa, but to us it is a massive sum of money, a sum that in our case is largely raised by crowdfunding at a local level, people putting their £10 or £20 in to support local democracy.

What we have is a very odd situation—here I come to why the “one MP” criterion is in the amendment—because, in our system, we have what is known as Short money. It was introduced in the Commons in 1975 and is available to all Opposition parties that either secured two seats or one seat and more than 150,000 votes at the previous general election. It is payable to qualifying parties as £18,400 for every seat won at the last election, plus £36 for every 200 votes gained by the party. When people say to me, “I think my vote is being wasted because it didn’t elect someone”, it is always worth pointing out that it does have an impact in terms of Short money.

In the context of this amendment, we have a situation where with one hand the state deliberately gives money to parties that have won at least one seat and got a certain number of votes but, with the other, takes it away in terms of the election deposits. This is, in effect, a tax on democracy. If we look at the comparison with many other democracies around the world—on earlier groups we were talking about comparisons in many ways and how we appear to fall short compared with other democracies—it is interesting that many other democracies in Europe and other parts of the world fund the operations of their political parties on a regular basis, not just in parliament but in terms of funding research and election campaigns. They acknowledge that, if we do not all collectively fund politics, the people who do fund it are the ones who then get the politics that they have paid for. We are now in a situation where we are getting politics paid for by a relatively small number of people, and election deposits make that far worse.

I will be interested to hear from the Government what their current justification for election deposits are, but I expect that they might say the £500 deposit discourages frivolous running for office and joke candidates—at which point I would invite them to look at any list of candidates standing in any general election or high-profile by-election, as it does not really seem to do the job.

If the Government do not like Amendment 144F and the immediate step to end this tax on democracy, I have the alternative Amendment 212F, which is a simpler and less immediate action. It calls for a review of election deposits and the exploration of alternatives. If the Government were to acknowledge that there is an issue here that deserves to be explored and should be considered, Amendment 212F is a way of getting to that by taking a longer and more considered view of how we might approach this situation and end this barrier to democracy. As we were discussing on an earlier group, the Government said in their impact assessment of this Bill that their aim is to improve access to democracy. Taking away the deposits could be one important step for that. I beg to move.

[Lord Stunell (LD)]

My Lords, the noble Baroness has come up with a very cunning plan and I have to say that, as a Liberal Democrat, I can see its merits immediately. I just say one thing to her, which is that it is usually a mistake to put all your dice on one number. There is about £250,000 at stake if that seat were, by any mischance, to be lost. That may be a good reason for me to be more enthusiastic about her second amendment than her first, which might be a case of being careful what you wish for.

Nevertheless, she has raised some important issues which are clearly relevant to all political parties other than the big two—it has to be said that the big two also waste money on lost deposits, although I am sure they do not think of it as being wasted so much as an investment for the future. That said, it is an interesting argument to link this to the payment of Short money from parliamentary funds to support those political parties which are represented in the other place. It will be interesting to see whether the Minister is in any way tempted to assist small parties with a £250,000 bounty, as compared to the very much bigger sums of money which he and his colleagues can summon up on demand when a general election arises.

--- Later in debate ---

[Lord Wallace of Saltaire (LD)]

My Lords, overseas voting extension is an important part of this Bill, one of the many bits that is substantially changing the pattern of voting. It could add a couple of million extra voters and deserves better than the treatment it is getting at present. Some of us may wish to discuss whether we will oppose Clause 12 standing part on Report just to make sure we have a proper discussion. I have been struck, in everything I have read and discussed with Ministers and officials, by the fact that this has not been thought through and has been poorly prepared. If I were unduly suspicious, I would say that Ministers are more interested in getting donations from people who will then come on to the register than they are in really getting proper overseas representation.

We know where this comes from: the campaign that Sir Geoffrey Clifton-Brown, when he was head of the Conservative Party’s international office, took to encourage overseas voters, particularly retired British expatriates in Spain and France, to register. Academic research that I found, which the Minister, when I spoke to him, appeared to be unaware of, showed that the distribution of votes—I do not know whether the Minister is listening to me; he may not be interested—in constituencies had been lopsided from the start. It was always concentrated in London and the south-east. Now, it continues to be very lopsided. The Minister said that he was unaware of the distribution of votes by constituency. I found it out quite easily, through the Office for National Statistics. I am sorry it was not available to him. It ranges from over 2,000 in several north London constituencies, to 25 or so in various Welsh constituencies. If we double that, the maldistribution of overseas voters in different constituencies will entirely undo the redrawing of the boundaries to make them more accurate, which is just going through.

The academic research in the mid-1990s suggested that two-thirds of overseas voters in 1992 had voted Conservative, but only in small numbers. After the introduction of individual electoral registration allowed Conservatives abroad to mount a registration drive on individual registration from abroad, numbers rose from 33,000 in 2010 to 106,000 in 2015. The Conservative Party International Office encouraged targeted donations from abroad to marginal seats in the 2015 general election, showing that donations were a very important part of this. After the referendum, the numbers registered surged to over 300,000, which perhaps suggests that the Conservative assumption that they are all going to vote Conservative may have been a little shakier than they had intended.

There are many weaknesses with the proposals as they currently stand. First, in a Bill that tightens identity checks for domestic voters, the identity checks for overseas voters are extremely weak. Furthermore, the Government do not know who the overseas citizens are, how many of them there are or where they live. I put down a series of Written Questions six months ago, and the answers I got to most of these was “We do not have the figures”. I asked the Foreign Office what information it had, and it said that it plays no role in the registration of overseas voters and it does not expect to play any role in assisting them to vote. If the Minister had looked at comparisons of the way in which other Governments handle overseas voting, he would have noted that embassies and high commissions play a very active role in this. The noble Lord, Lord Hayward, reminded me that the largest polling station in Australia is at the other end of the Strand in London. The British Government apparently do not want to get involved in that, and it would be very complicated.

The problem we were discussing about digitisation and how to get the balance out and then get them back in a short campaign, remains and is already a grievance with overseas voters.

The absence of preparation, therefore, is absolutely clear. The problem of how you identify fraud is very considerable if the Government have such little information on where citizens are and who they might be. The identification checks are very weak, and the powers given to the Secretary of State to take whatever measures he thinks appropriate to provide information campaigns suggest that a particular Secretary of State might decide that Portugal, Spain, Italy or France are where he wants to concentrate their efforts, rather than on those who retired to Jamaica or southern Nigeria or Pakistan.

[Lord Stunell (LD)]

Or Belgium.

[Lord Wallace of Saltaire (LD)]

Or Belgium: exactly. There are many weaknesses in this. We put down another amendment, which comes in the next group, suggesting that the appropriate answer is overseas constituencies. The idea that people should vote in constituencies in which they have not lived for 50 years is absolutely absurd. My conversation with my local ERO suggested that trying to check on whether they actually have lived there or not might prove an impossible task.

This is a very shaky part of the Bill. My conversation with the Minister and officials suggests that they have not thought this through; it seems the Minister is not interested in thinking it through any further. I suspect, therefore, that it is the donations that they are really interested in, and this leaves me very discontented with this part of the Bill.

[Lord Stunell (LD)]

My Lords, I want to ask some technical questions, without necessarily knowing what the correct answer is myself. I hope that the Minister, if he is not able to answer today, would be prepared to write to provide a further explanation.

I start by referring to some of the text of Clause 12. On page 14, line 13, under the new section “Extension of parliamentary franchise”, there are various conditions that a person has to satisfy. They have to be,

“not subject to any legal incapacity to vote (age apart)”

et cetera. I take it—perhaps the Minister can consult the Box to get an answer to this—that that is to make sure that nobody overseas registers who is under age. I assume that is the meaning of that. If I am wrong about that, then there might be a whole set of questions arising, but that seems to be the common-sense explanation for those two words in brackets.

I want to move on to the next page of the same clause. New Section 1B is headed,

“British citizens overseas: entitlement to be registered”.

The proposed new section sets out that, essentially, there are two ways in which one can qualify to be registered. The first is as a former elector in a United Kingdom constituency. There will be discussions about that, I am sure, but the second is what I want to focus on at the moment. The second condition is that you were a former resident in a UK constituency. We already know that there is quite a large number of people who are not registered, because we discussed earlier on that the Electoral Commission’s estimate is that in Great Britain and Northern Ireland, there are somewhere between 8.6 million and 9.8 million people who are currently resident but not on the electoral roll. There is, therefore, quite a large pool of people who, presumably in approximately equal proportion, will be overseas now. There is no special preference for people who have registered being the people who have migrated.

So my question is: does this legislation grant voting rights to someone who left the UK with their parents as a baby and moved to Switzerland, say, to claim their vote alongside their parents, once they reach the age of 18 overseas? If it does, I note that there does not seem to be any requirement for that baby to have been born in the United Kingdom; they need to establish only that they were resident here. As far as I can tell, there is no specified minimum period for that residence.

I will take a case that is not entirely hypothetical. Parents who came to the United Kingdom, having been working in Ghana, with a baby who was born in England, move to Switzerland six months later. It seems that nothing is set out in the legislation to prevent that baby from claiming their vote on reaching 18 while still living overseas. I want to check that I have not misunderstood what the legislation is saying there and that, by virtue of that brief period of residence, they would be eligible to vote and—I suppose I could add—to make a donation. If that is true, I know of two British nationals now in their 50s who will be very happy to take up the offer.

But I want to know whether that really is the extension to the franchise that the Government want or whether I have actually missed something and, in some other part of the RPA—or Schedule 9 or goodness knows where else—there is something that would prevent that absurd outcome.

[Baroness Scott of Bybrook (Con)]

My Lords, I will first answer the noble Lord, Lord Stunell: it is late and I do not have all the answers, but we will get a letter to him as soon as we can to answer his questions.

Amendment 146 seeks to place a time limit on overseas electors’ connections with the UK. Imposing a new time limit, albeit a longer one, does not deliver on our manifesto commitment to introduce votes for life. The Government’s view is that any time limit is arbitrary in an increasingly global and connected world. Length of time outside the UK is not a certain indicator of how a person feels about their British identity or a measure of the interest that they take in this country’s future. The Bill sets a sensible boundary for the overseas franchise. Previous registration or residence denotes a strong degree of connection to the UK.

Amendments 145, 147 and 148 seek to prevent people who have committed offences or been sanctioned under the described Acts, or those who are subject to an Interpol red notice, from registering as overseas electors. Domestic electors are not required to declare whether they have ever committed offences under the Acts described, and the Government will not impose these requirements on overseas electors. Overseas electors would be subject to the same restrictions as domestic electors in respect of offences relating to personation and postal vote fraud that result in a temporary bar from voting upon a person being convicted or named as personally guilty of that offence.

In a situation where a domestic elector would not be permanently barred from voting, we would wish to treat an overseas elector equally—

[Lord Stunell (LD)]

The Minister has just said that exactly the same restrictions would apply to overseas voters as to voters in the UK. If an overseas voter had been sent to prison in Switzerland, say, for 18 months, would they be able to vote from prison there, or would we have a mechanism for making sure that they were not competent to vote in that situation?

[Baroness Scott of Bybrook (Con)]

I think that is a hypothetical question, but I shall certainly get a legal opinion on it.

On Amendment 148, as the noble Baroness said, all those issues on sanctions should be dealt with on Monday, within the group on donations, if she does not mind. I think that is the sensible place to have that debate. Therefore, I urge her not to press the amendments.

Elections Bill

Lord Stunell Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 21st March 2022 Lords Chamber

[Lord Stunell (LD)]

My Lords, I shall dial down the rhetoric a little here. First, I want to pick up what the noble Baroness, Lady Noakes, said with great conviction —that it was beyond the wildest imagination that this could be a deliberate attempt at voter suppression. The Minister made the same point in responding to an earlier group. The Committee owes it to both of them to take that in good faith. So I shall move on and say that I also take in good faith what the Minister has said at least twice during our proceedings, which is that he rejects the concept of the precautionary principle. I shall make an assumption, based on a fair amount of evidence—although that is not collected from these debates in particular—that he is also against the gold-plating of legislation.

I shall speak particularly to Amendment 80, tabled by the noble Lord, Lord Willetts. All the other amendments in the group have great merit and require careful consideration by the Minister, but Amendment 80 is what has attracted my attention for further comment. Incidentally, I was originally going to say that I did not believe it encompassed parliamentary passes—but I notice that item (q) in the list is “a workplace ID card”, so possibly we may qualify under that. It would be ironic, would it not, if a busy Member of Parliament seeking re-election, dashing to the polling station at 9.55 pm on realising that they had failed to vote, was turned away because their parliamentary pass was not sufficient identity to get into the building? I see that I am going to be intervened on by another noble Lord, who, like me, has a pass that does not qualify him to vote—but that is a separate issue.

[Lord Adonis (Lab)]

The point is that the MP would be turned away, because that pass does not mean that someone can turn up and vote. The pass is an accepted document with which someone could apply for a photo electoral ID card. If the noble Lord tries to turn up at the polling station at 9.55 pm with his parliamentary pass he will get very short shrift, because the Government will not regard it as a secure document.

[Lord Stunell (LD)]

The noble Lord makes an interesting point. At the 2017 election, when I was present at the normal polling station that I attend, I had some difficulty in preventing the polling clerk issuing me with a ballot paper. He was not deterred by the fact that I was disqualified by virtue of my membership of this House. I assure your Lordships that I rejected his tendered ballot paper—“tendered” with a small “t”, obviously.

The noble Lord, Lord Willetts, made a powerful point on behalf of the noble Lord, Lord Pickles, and his report. He referenced the Pickles report recommendation 8, and further parts of the report have also been read into the record in this debate. Recommendation 8 said that there was no need to be over-elaborate, and utility bills would do. My two years of junior ministerial office were in the then Department for Communities and Local Government, whose Secretary of State was the noble Lord, Lord Pickles, and I am pretty sure that, unless the noble Lord has changed his tack very considerably, he will remain fundamentally opposed to gold-plating. He was an enthusiastic pursuer of the red tape challenge, which was designed to reduce the amount of legislation and regulation, and I do not even have to consider whether he would regard the spending of £180 million on fulfilling his report as a sensible use of public money, or proportionate. I do not even have to imagine whether he regards the present arrangements as over-elaborate. I am sure that in due course the noble Lord will speak for himself. No doubt he is wisely keeping out of the way at the moment, but at some point, when his memoirs are published, we shall get to the truth.

The noble Lord, Lord Adonis, talked about which demographic would be hit the most. We can debate that, but there is clearly a proxy, which has been mentioned already. Some parts of the population do not have bank accounts. I would just say to the noble Baroness, Lady Chakrabarti, that for them, adding a credit or debit card to the list would not help. People who do not have bank accounts, and therefore do not have bank cards, are people who are very likely to be unable to produce evidence of other things either. But they nearly all have utility bills, and that seems to be a route that the noble Lord, Lord Pickles, recommended to the Government when he drew up his report.

The Minister should remember his own first principle, which is “No precautionary principle: don’t do anything unless there’s evidence to show it is needed”. There is no evidence to show that this is needed. His next principle is “Don’t gold-plate”—and he should remember the red tape challenge. The noble Lord, Lord Willetts, has provided the Government with the solution they are looking for, which would allow them to say to whoever they have to give an account to, “We’ve fulfilled our manifesto pledge, and we have a scheme that doesn’t strip out electors and reduce their propensity to come along and vote”. I support all the amendments in the group, but Amendment 80 ought to be the foundation stone for the Government to do a diplomatic and nuanced U-turn.

Elections Bill

Lord Stunell Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 21st March 2022 Lords Chamber

[Lord True (Con)]

My Lords, these amendments investigate some of the safeguards for postal ballots introduced in the Bill. I welcome the underlying sense of the comments made: the Committee recognises that, as we move through the suite of arrangements which the Government suggest to protect electoral integrity, there is more support here than there was for the first measure.

Clauses 3 to 7 require voters to apply more frequently for a postal ballot, ban political campaigners from handling postal ballots, introduce, as the noble Lord, Lord Scriven, just explained, new limits on the number of postal ballots that can be handed in, limit the number of electors for whom someone can act as proxy and increase secrecy protections for absent voters. As has been said, all these changes implement recommendations in the report by my noble friend Lord Pickles into electoral fraud, which suggested addressing weaknesses in the current system. We submit that they are sensible safeguards against known vulnerabilities and, taken together, they will reduce the opportunity for unscrupulous individuals to exploit the process and steal votes, as we have seen in Tower Hamlets—often referred to in your Lordships’ House—but also in other locations mentioned during debates in the other place, such as Peterborough, Birmingham and Slough.

I noted the points made by the noble Baroness, Lady Hayman of Ullock, on her amendments and her amendment probing the expiration period of postal votes, in which the noble Lord, Lord Scriven, also expressed an interest. Currently, an elector may have a postal vote on an indefinite basis as long as they provide a signature sample every five years. The noble Lord, Lord Collins of Highbury, has benefited from this.

The Pickles report recommended that voters should reapply for a postal vote at least every three years as a safeguard to prevent postal voter fraud. More frequent applications would not only enable EROs to regularly assess a person’s application and confirm whether they are still an eligible elector but give an opportunity for someone who was initially pressurised—that is obviously not the case for the noble Lord—into having a postal vote to break out of that situation and thus not have their vote influenced on an ongoing basis. Additionally, ensuring that electors’ details are kept up to date and that each postal voter’s signature is refreshed more frequently will reduce the likelihood that their postal vote is rejected should their handwriting change over time. You have only to ask my wife to hear how illegible mine has become in recent years.

The Government consider that the timeframe of three years still enables a person to have a postal vote for a reasonable length of time, while ensuring the person normally replies during every Parliament.

[Lord Stunell (LD)]

I thank the Minister for giving way. I understand the logic he is setting out. Do the Government intend that that this three-year renewal process will also apply to overseas voters added to the list to assess their eligibility and so on?

[Lord True (Con)]

My Lords, had the noble Lord not made a very legitimate intervention, I would have read the next sentence. While an indefinite postal vote presents a significant security concern, we must also recognise that annual applications for overseas electors goes too far in the other direction and creates an excessive burden for administrators. That was perhaps the implication of his intervention.

Therefore, in order to ensure that arrangements remain harmonious across domestic and overseas electors, we will extend the registration period for overseas electors from one up to three years and tie the three-year postal vote cycle in with the new three-year cycle for renewal of overseas electors’ declarations. Overseas electors will be able to reapply or refresh their absent vote arrangements as appropriate at the same time as renewing their declaration. This alignment between absent vote and renewal arrangements will encourage overseas electors to remain on the register.

We recognise that this means more time spent on processing by electoral administrators. To balance that, we are working to introduce an online application process. This will benefit electors and is very much welcomed by administrators in reducing handling of paper and enabling automation.

Of course, the Government recognise the importance of having transitional provisions in place for existing long-term postal voters, so under the Bill those voters will continue to be able to vote by post until either the 31 January following the commencement of the provision or, if this is sooner, the 31 January following the commencement date by which the postal voter would normally be expected to provide a fresh signature. These arrangements will ensure that the change is phased in over a reasonable period of time. Electoral registration officers will be required to send a reminder to existing postal voters in advance of the date they cease to have a postal vote and provide information on how to reapply for a postal vote.

The amendments tabled by the noble Lord, Lord Scriven, to Clause 5 seek to prevent the powers of the clause to limit the number of postal votes that can be handed in from being used to impose any limitations on handing in via a council posting box and set a minimum of five for any limitation imposed in secondary legislation. There is significant concern that permitting a high number of postal votes to be handed in could facilitate electoral fraud and undermine the integrity of elections. This has been a long-standing issue in elections and has undermined confidence in the system. It does a disservice to many legitimate electors who make use of postal votes for valid reasons. Setting a limit on the number of postal votes that can be handed in is therefore necessary in our judgment. This clause will allow regulations to require persons handing in postal votes to complete a form giving details of the numbers they have handed in, which will help promote compliance with the new requirements and aid investigations into allegations of fraud.

However, I heard the point the noble Lord, Lord Scriven, made about the number, and his suggestion of five. We will keep his suggestion in mind as we continue to work with the Electoral Commission and electoral stakeholders on the issue as we develop the legislation. However, we will maintain the position that the permitted number should be confirmed in secondary legislation, giving time for further consultation. This is the right place for such details and allows flexibility for change should it be needed later if the figure initially established does not prove to be right in practice. I hope that with those assurances noble Lords will feel able to withdraw or not move their amendments.

--- Later in debate ---

[Baroness Scott of Bybrook (Con)]

My Lords, these probing amendments seek to test the defence for political campaigners set out in Clause 4, which bans said campaigners from handling postal votes issued to other persons. Clause 4 is designed to address activities and behaviours that have been a cause for concern at previous elections, such as the practice of postal vote harvesting whereby voters are coerced or tricked into completing their postal voting statement before handing over their papers with the ballot paper unmarked to campaigners to be taken away and filled in elsewhere.

Amendment 93 seeks to provide that a person commits an offence only if they knowingly handled a postal vote issued to another person. The clause currently provides that it is a defence for a political campaigner charged with the offence to show that they did not dishonestly handle the postal voting document for the purpose of promoting a particular outcome at an election. This Government entirely share the concern that no offence should criminalise innocent behaviour. For this reason—

[Lord Stunell (LD)]

I thank the Minister for her explanation. In preparing for this particular debate, I looked at the defence that is set out on page 2 of the Bill—I thank the Minister for reading that into the record. It further says, in new Section 112A(5), inserted by Clause 4, that

“the court must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.”

The burden of proof there is upon the prosecution. I mention this because, as a political campaigner who quite often gets asked to take a postal vote and hand it in on behalf of an elector, it is clearly of considerable importance to know that we are—if you like—excluded from the purview of this particular offence.

[Baroness Scott of Bybrook (Con)]

I think that all of us campaigners have been asked the same question many times on the doorstep.

This Government entirely share the concern that no offence should criminalise innocent behaviour. We have been especially careful to target the wording of the new offence to ensure that it is reasonable and proportionate where somebody acts with honest intentions. For these reasons, the Government consider that the offence provisions are appropriately worded and are therefore unable to accept that amendment or the others in this group.

In fact, against the concerns of Amendment 94, new Section 112A(2) of the Representation of the People Act 1983, inserted by Clause 4, already provides that a person who handles a postal voting document for use in a relevant election does not commit an offence if they are responsible for or assist with the conduct of that election and the handling is consistent with the person’s duties in that capacity.

Amendment 95 seeks to exempt legal guardians from the offence. There is an exemption in the clause for a political campaigner, if they are close family—

“spouse, civil partner, parent, grandparent, brother, sister, child or grandchild”—

of the other person whose postal vote they are handling. Legal guardians are not included, as they do not have the relevant powers when acting for adults, and their powers are primarily to do with decisions about a person’s medical care and their finances.

Amendment 96 also seeks to change the definition of political campaigner for the purposes of postal vote handling offences to include those who have donated to a campaign. The definition in the Bill is comprehensive and includes candidates, electoral agents and members of a registered political party who carry on an activity designed to promote a particular outcome at an election. Donating to a campaign is not the same as actively canvassing. Therefore, I am not persuaded that it should be amended to such a disproportionate extent. For this reason, I beg that the amendment is withdrawn.

--- Later in debate ---

[Lord Adonis (Lab)]

I will elaborate on the noble Lord’s point. There is a difference here, in the ordinary reading of the words, between pressure and intimidation. I took the noble Lord, Lord Hayward, to be referring to intimidation, which is clearly something that we want to guard against. But what constitutes spiritual pressure? As noble Lords have just said, would a sermon in a church constitute pressure? A reasonable person might think that it would; after all, it is not serving much of a purpose if there is no pressure. This is a lay man speaking, but I think there is a difference between pressure and intimidation. We want to guard against intimidation, but we absolutely do not want to curb freedom of religious speech.

[Lord Stunell (LD)]

This is unexpectedly lively, but the focus really is on new sub-paragraph (3)(e). I think most of us would say that there is, if you like, a simple lay person’s interpretation of new sub-paragraph (3)(a), (b), (c), (d) and, for that matter, the catch-all of new sub-paragraph (3)(f), which is

“any other act designed to intimidate a person”.

In the light of new sub-paragraph (3)(f), it may be that the difficulties of new sub-paragraph (3)(e) are best avoided by their omission, because if such spiritual injury was demonstrated, it would come under new sub-paragraph (3)(f).

I just point out that the preceding activities have “using or threatening”, “damaging or threatening”, “causing or threatening”, but new sub-paragraph (3)(e) has “causing spiritual injury”; not “threatening” to cause spiritual injury. Obviously, it depends on one’s personal understanding of what spiritual injury might consist of, but the threat is surely going to be offered far more often than the reality will be delivered, if I may put it in those terms, although it does not mean that it is not effective. There are some problems in the straightforward interpretation of what new sub-paragraph (3)(e) really says, why it does not say “threatening” to cause, as does new sub-paragraph (3)(c) and (d), for instance, and why it is necessary, separate from the catch-all of new sub-paragraph (3)(f):

“doing any other act designed to intimidate a person”.

I want to bring a little bit of local colour to new sub-paragraph (4)(e). In 1992, I stood for the Liberal Democrats in Hazel Grove. On the Sunday before polling day, every Catholic church in the constituency had a letter read out from the Society for the Protection of Unborn Children, which clearly expressed the view that a vote for me would be a major spiritual error. I failed to win that seat by 923 votes. I do not attribute the result to that letter, but noble Lords will understand that I had a sense of grievance for some time afterwards that this letter had been read out.

This brings me to my second critique of new sub-paragraph (4)(e)—it is a little bit in the eye of the beholder. If that provision had been there in 1992, I would have gone straight to the returning officer to say that this was a clear case. It would be an invitation for people to complain about things which were in fact simply within the bounds of free speech, fair comment, and so on—even if it was unfair in the opinion of the recipient.

There is a double problem. First, what is “spiritual injury”? Secondly, do we mean causing it, or threatening to cause it? Do we think that the injury is to the voter who is deterred from voting for a candidate, or to the candidate by virtue of the voter not supporting them? I suggest that we are not very clear what we are trying to pin down. The Minister might like to carefully consider what the disbenefit would be of removing new sub-paragraph (4)(e) and simply relying on new sub-paragraph (4)(f) to deal with cases where “spiritual injury”—or threats of it—was part of the reason there had been intimidation.

[Lord True (Con)]

My Lords, in Christian teaching, the alpha comes before omega, so I was a bit puzzled, like others, that Z comes before A. I was set up to answer the noble Lord, Lord Wallace, first, and I hope that the noble Baroness will not be offended if I do that.

In any case, both are seeking to probe the reference to “spiritual injury” and “undue spiritual pressure” in the clarified offence of “undue influence” of “an elector or proxy”. The “undue influence” offence is intended to ensure that all electors and proxies are able to cast their vote free from intimation and malicious interference. It is true that the 2015 Tower Hamlets petition, about which my noble friend Lord Hayward spoke eloquently, demonstrated that protection from undue influence remains highly relevant and important in 21st-century Britain. However, the existing offence of undue influence dates back to the 19th century. Indeed, the freedoms of religious authorities and priests to hold and express political views were first set out in a judgment in 1870, and those freedoms remain. However, the complexity and outdated terminology of the current offence makes it difficult for the police or prosecutors to apply it, leaving electors and proxies without necessary protection.

I was asked about convictions. According to our data, between 81% and 86% of allegations of undue influence lead to no further action at all, with only one court case initiated in the last eight years. While the defendant was found guilty of undue spiritual influence in the Tower Hamlets petition, Commissioner Mawrey highlighted insufficient clarity in the law, as well as the high bar which was required to convict someone of intimidation. The commissioner recommended that the offence of

“undue spiritual influence … be more clearly articulated”

and brought in line with 21st-century language and society, to ensure that it remains enforceable. The Law Commission, in its 2016 report into electoral law, similarly called for the offence to be restated more clearly. All respondents in the Government’s public consultation in 2018, entitled Protecting the Debate: Intimidation, Influence, and Information, agreed that the offence required greater clarity.

Elections Bill

Lord Stunell Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 17th March 2022 Lords Chamber

[Lord Kerslake (CB)]

My Lords, I will keep my remarks on this group to a minimum, because I have a similar amendment coming up on which I will say more. But I did not want to let this debate pass without saying how problematic this clause is. It is a serious issue that must be addressed. I think the noble Lord, Lord Collins, has set it out very comprehensively and clearly.

Put simply, the clause is unnecessary. Nobody has defined a problem that needs solving by this clause. Secondly, it is unquestionably partisan in its impact; it is absolutely clear that it will affect one party more than the others. That should be a guiding test for this House; we do not do that. We do not introduce legislation that is purportedly even-handed but is anything but. That should not be what we are about in this House. We need to recognise that. I worry a bit that the debate becomes one between the political parties when I think that this side of the House should be as concerned about the constitutional impacts of this legislation as anyone else.

The third issue has just been brilliantly set out by the noble Lord, Lord Mann: there will be a whole series of unintended consequences from the proposal in this clause. But, for me, the worst and most unintended consequence is the chilling effect. It is what will not happen because this is in legislation. People will err on the side of caution; they will not want to get caught up in major legal battles, so they will not campaign on issues that they feel strongly they should campaign on. Effectively, that is a silencing of their voice. All of us, whatever side of the House we are on, should be very concerned about that.

[Lord Stunell (LD)]

My Lords—

[Lord Hendy (Lab)]

My Lords, for the reasons explained by my noble friends Lord Collins and Lord Woodley, Clause 27 poses an unjustified, unnecessary but serious threat to trade unions. I say so for three legal reasons: the threat is to three particular rights. The first is the trade union right to autonomy—that is, the right of a union to determine its own constitution and how it will spend its own money. That is a right protected by Article 11 of the European convention, as vouchsafed in the case ASLEF v United Kingdom in 2002. Secondly, it interferes with the right of a trade union to campaign. That, too, is an aspect of freedom of association and the right to be a trade union member protected by Article 11 of the convention. Thirdly, it interferes with the right of trade unions to express themselves—freedom of expression—protected by Article 10. As I said earlier today, to justify such incursions on to those convention rights requires a demonstration that the restrictions are necessary in a democratic society.

As my noble friend Lord Woodley pointed out, this and other provisions in the Bill form part of a long line of legislative restrictions on the capacity of trade unions to improve and maintain the condition of the lives of working people, to coin the web’s phrase. I will not go back to the restrictions on political expenditure first imposed on unions in the Trade Union Act 1913 and preserved today, but I will refer to the legislation of the 1980s, which Tony Blair, as he then was, described in an article in the Times—which I am afraid is for ever embedded in my memory—on 31 March 1997. He described the legislative situation then to be inherited by the incoming Labour Government as

“the most restrictive on trade unions in the Western world”.

Of course, Tony Blair’s Governments chose not to repeal that legislation, and unsurprisingly, the Governments formed from the Benches opposite have not repealed it either. Indeed, they have extended it. In place of the promised employment Bill, which it was said would extend the rights of workers, we have had further restrictions on trade unions. I refer to the Trade Union Act 2016 and, as my noble friend Lord Woodley has mentioned, the Police, Crime, Sentencing and Courts Bill, which further restricts the right to picket in many specified industrial sectors. Last week we had the statutory instrument on the trade union levy in respect of the certification officer, which imposes a tax on trade unions and gives further powers to the CO—and now we have the Elections Bill.

When all these things are seen together, it is clear that Clause 27 is part of a pattern. I accept that, as my noble friend Lord Collins said—and as the Minister said this morning—these clauses have implications for other democratic bodies too. But Clause 27 is unjustified. To cite the test of the convention, it is not necessary in a democratic society.

[Lord Stunell (LD)]

My Lords—

[Lord Harris of Haringey (Lab)]

My Lords, when I first came into this place, I found it surprising that noble Lords from the other side of the House would often stand up and argue that it was inappropriate to introduce clauses in Bills unless the purpose was clear, and they clearly met a required need. So I now find it strange that, as my noble friend Lord Collins of Highbury said, this seems to be an example of precisely that. I appreciate that the Minister was not in the House at that time, but I am sure he was a close observer, and that he will recall those speeches and those comments.

I also find it strange that, when we have a highly respected Committee on Standards in Public Life and it has put forward a series of recommendations in precisely this field, the Government have chosen to ignore them. I hope that when the Minister responds he will explain precisely why those recommendations have been ignored. What is the rationale? Why have the Government said, “We substitute our judgment”, which might, just might, be partisan, “for the judgment of the Committee on Standards in Public Life”—which is clearly non-partisan?

I rather wonder whether the Government misunderstand the nature of the relationship between the trade union movement and the Labour Party. I hope that they will no longer do so after the speeches by my noble friends Lord Collins, Lord Woodley and Lord Hendy. But I have sat in too many meetings with the leadership of my party, who, in the privacy of those four walls, were almost tearing their hair out at some of the campaigning and other activities of trade unions affiliated to the Labour Party. As I am sure my noble friend Lord Woodley would agree, it is a fallacy to say that trade unions and the Labour Party are always marching in lockstep on every issue. Frankly, that is not the case.

The general principles and general philosophy may be the same, but the details are clearly not always to each other’s tastes. The idea that all this activity can be conflated without producing some very unfortunate consequences seems to me extraordinary. I hope that when the Minister responds he will, first, give us a clear explanation of the purpose of the measure and why it has been brought forward at this time. Secondly, I hope that he will tell us why the Government have chosen to ignore the recommendations of the Committee on Standards in Public Life. Finally, he might just give us his understanding of the relationship between the trade unions and the Labour Party.

[Lord Stunell (LD)]

My Lords, I think that it might be my turn now. First, I apologise for not being in the House for the session before lunch. I was attending the Committee on Standards in Public Life, of which I am a member. That committee, as I have reminded the House before, has on it a representative of the Labour Party, Margaret Beckett, a representative of the Conservative Party, Jeremy Wright, and a representative of the Liberal Democrats. It is under the chairmanship of the noble Lord, Lord Evans of Weardale, who is of course a Cross-Bench Member of this House, and it has a majority of independent members.

As the noble Lord, Lord Harris, just reminded the House, the committee produced a report, Regulating Election Finance, which is quite thick and I would like to say quite substantial. It makes the case eloquently and clearly, based on evidence, about the things that need to be improved in our electoral regime, the things that need to be protected and the things that need to be prevented. It does not contain a recommendation that coincides with Clause 27.

I have asked the Minister before whether he would be prepared to give us some kind of ministerial or departmental list in which the 47 recommendations that appear in the report cross-reference with the Elections Bill. His answer last time was that the Government gave their reply to this report last October. I took advantage of the committee meeting this morning just to make sure that I was not mistaken and took another careful look at what the Minister said about the report, specifically what his response said about recommendation 21. The answer that he gave in his letter was that, broadly speaking, the Government were thinking about it.

A slightly more detailed annexe brings together five or six of the recommendations in the report, including recommendation 21. I will not reproduce exactly the reasons given for not proceeding with any of them because I assume that that will be part of the Minister’s wind-up speech in a few minutes’ time. Broadly speaking, it says, “It is all complex, it could easily make it much more difficult for people, it is not proportionate and really we were taking into account a lot of other views and consideration and it needs detail”, et cetera. Noble Lords will obviously be able to hear it in a more refined form when the Minister winds up.

What the response does not do at all is to answer why recommendation 21 should not form part of this Bill. Paragraph 8.29 of the report says:

“The Electoral Commission explained in their 2015 General Election spending report that it is difficult to identify in the spending returns how much targeted spending has been incurred and if it has been correctly attributed to the relevant limits.”


So the Electoral Commission identified a specific problem of third-party spending targeted but not properly attributed to the relevant limits. The same paragraph goes on to say:

“The Hodgson report later made a similar recommendation. We agree that this change should be made to increase the transparency around campaigning that is carried out on behalf of political parties.”


Recommendation 21 is very similar to the explanatory note attached to the amendment from the noble Lord, Lord Collins:

“Parties should be required to identify what is spent by third parties as targeted spending on their behalf. The government should introduce a specific reporting category for targeted expenditure that non-party campaigners have spent in relation to an authorisation given by a political party.”

Elections Bill

Lord Stunell Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 15th March 2022 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I am taking the unusual step of trying to get a debate going about a particular word. It may not last long but, knowing my ability, I suspect it will go on for a bit longer than people perhaps anticipate.

I raised this previously, on the first day in Committee: what is the problem that we are examining here, and what is the solution that this clause seeks to offer to that problem? It is not clear to me that we are providing a solution. No doubt the noble Lord, Lord Wallace, will seek to raise some of these broader issues in his clause stand part debate. One of the things suggested is that it is about changing a legal test in the notional spending provisions, which I know are an essential part of election spending controls.

When I first started working in Transport House in 1972, the Labour Party was fully occupied in Transport House. General election campaigns were run from that building and, even after the Labour Party left Transport House and moved to the Walworth Road, it still used the facilities we had in Transport House to conduct the national campaign. Of course, that was prior to some of the regulations about how we account for funding and spending.

This is really quite an important issue. In its briefing, the Electoral Commission points out that in the 2019 general election, notional spending accounted for 40% of the total campaign spend across all candidates, so it is a huge issue that we need to make sure we get right. The Electoral Commission says it is really important that candidates need to be clear when something is notional spending, because it counts towards their total campaign spend and they must not exceed it.

The Explanatory Notes for the Bill say:

“Clause 18 subsection (1) (notional expenditure: use of property etc. on behalf of candidates and others) amends section 90C of the RPA 1983 in order to clarify that ‘on behalf of’ means where the candidate has directed, authorised or encouraged that use by someone else. This will clarify that candidates only need to report benefits in kind which they have actually used, or directed or encouraged someone else to use and do not need to fear being responsible for benefits in kind of which they had no knowledge.”


I have heard the Minister stress that the Bill’s purpose is to better define things, make sure that they are better understood and make sure that, if there are any loopholes, they are closed. I tabled this probing amendment to ask exactly what “encouraged” means. How are we to define that? How will that be translated into codes and guidance that the Electoral Commission puts forward?

I have a concern, and I hope the Minister will spend some time explaining this. What is the problem? Are we properly accounting for all notional spend? To me, that is the problem that this clause should address. If the Electoral Commission is telling us that it is 40% of the spend, we need to make absolutely sure that it is properly accounted for.

My fear is that this Bill is not doing that and could lead to claims of, “I didn’t know—I had no knowledge, even though my campaign people were using an office or a car. I didn’t know that shop down the road was open for me to use.” There are issues of serious concern here. What is wrong with the existing provisions on notional spend? I would ask the Minister to describe the problems, give us the evidence of where problems have occurred and then tell us how this clause solves those problems.

I have tabled this specific probing amendment and I have no doubt that I will repeat some of these concerns when we get to the clause stand part debate. It is incumbent on the Minister to be absolutely clear on this issue. The Electoral Commission says in its briefing that this needs to be tightened up and people’s responsibilities made clear, but then I read in the Explanatory Notes that we want to ensure that candidates need not fear being responsible for benefits in kind of which they have no knowledge. I do not like the idea that ignorance is a defence, yet that is where this clause may be leading. I ask the Minister to tell us what “encourage” means, but also to give us a better explanation of the problem and the solution that this clause attempts to provide.

[Lord Stunell (LD)]

My Lords, I rise to ask some questions very much in parallel with those the noble Lord, Lord Collins, posed to the Minister. The word “encourage” is difficult to define in the legal sense. Is he prepared to share the advice that he has received from counsel about how a court might interpret “encourage” if an offence came before it? The noble Lord, Lord Collins, has illustrated that “encourage” is one thing and “ignorance of” another, but there is a tremendous zone in between, which will be an interesting legal minefield.

I would have thought that, in introducing this proposition in the Bill and to the Committee, the Minister would have in mind creating certainty, not a minefield through which agents, candidates and, for that matter, national parties have to step lightly to make sure that they do not offend and offend again. Speaking as a former candidate and a former agent, I never had any doubt about the distinction between things given to me by my party or anybody else for use in the election, and things that happened as a result of circumstances. Of course, we will come to third-party spending as a separate item later.

Although it has not been clearly expressed as such in the debate on this group of amendments, the specific reason for this clause being here at all is a legal case, which, from the perspective of the Conservative Party, went wrong. The party is seeking to change things so this does not go wrong next time; we will address the sense, or not, of that when we get to the next item for debate. However, even granted that it is a sensible inclusion in the Bill, would it not be rather more sensible to have an inclusion that does not lead to further ambiguity, doubt and difficulty, which will simply tie up agents, candidates and national party agents in trying to work out what “encourage” means or where the boundary of “encourage” lies?

I find it quite hard to understand the situation whereby a coach of activists can turn up and help you for a week and you could not be said to have encouraged it to happen. You may not have ordered them to come—but was any evidence presented that the local party officials at the time rejected it, but the national party insisted that these people came over their dead bodies? Where does “encourage” take us with that? Does “encourage” have a legal definition? We are familiar with other terms, which are used in perhaps somewhat similar circumstances, such as “facilitating”. Clearly, that is one way of looking at it. If they say, “Mrs Buggins will put somebody up for the night”, is that facilitating or encouraging?

There are many difficulties in the wording of this provision, quite apart from the outstanding difficulties with the clause as a whole, which we shall come to in a few minutes’ time. I hope the Minister will share with us the advice that he has had from legal counsel about how courts would interpret “encourage”. I am sure that the courts will come to a common-sense view, based on their understanding of UK language and legislation and any kind of previous case that they can draw into it, but a common-sense understanding of what “encourage” means may not be sufficient. At this point, I want to hear how the Minister imagines it will be interpreted by the courts when the inevitable cases come, via the Electoral Commission, the police or whatever mechanism is going to be permitted under this Bill for any offences to be prosecuted—we have dealt with that subject already. Assuming that cases will be taken forward, how does the Minister expect the courts to interpret “encourage”? What kind of evidence would show that encouragement took place or, alternatively, what kind of evidence could a candidate or an agent produce to show that they did not encourage? Would they have to produce some emails, perhaps, to show that they pleaded with headquarters not to send the money, help, leaflets or a coachload of young people?

The Minister can get the drift of the question that the noble Lord, Lord Collins, is asking, and which is important to understand, so that we get some measure of what this provision might achieve and what it might very well not achieve, despite the Minister’s intentions.

[Lord Grocott (Lab)]

My Lords, I agree very much with what has been said by both my noble friend Lord Collins and the noble Lord, Lord Stunell, who bring a tremendous amount of experience to this matter. I cannot quite match the noble Lord’s experience. I have fought sundry elections at parish, district, county and parliamentary level over the years, but by a bit of fancy footwork I have always avoided becoming an election agent. It has always struck me as the most frightening job in connection with elections.

That brings me to my observation on these amendments —that above all else one needs clarity and simplicity in this area to make the job of being an election agent less onerous and forbidding than it is at present. When we have these kinds of discussions, I often think that there is an assumption somewhere, although I cannot locate where it comes from, that there is a queue of people with tremendous experience who are dead keen to become election agents. My experience is the opposite: as a candidate you pretty well have to beg some friend of long standing to take on the responsibility, because it is a huge responsibility.

It is incumbent on us, as legislators, to make any law in this area as simple, straightforward and unambiguous as possible. That seems to be the objective behind what my noble friend is proposing. I share his concern and anxiety, particularly about the word “encouraged”, which has been developed by the noble Lord, Lord Stunell. There is nothing I would add to that, other than to say: for goodness’ sake, keep the poor election agent in mind throughout this kind of discussion, because—my word—they have a heavy burden to carry.

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[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise very briefly to speak in favour of this clause not standing part of the Bill. I should declare an interest that, as a Green, I am well used to always being on the wrong side of the unfair financial advantage the noble Lord, Lord Rennard, referred to. We obviously have an arms race in spending and politics paid for by the people who pump the money in. I have what might be considered a radical amendment later in this Bill to suggest that we put a very tight limit on donations. It starts from the other end of these things, saying that the quality of our politics is not benefiting from money being pumped in. This clause stand part notice suggests that we do not allow an escalation of the concentration of money even further.

Moving away from the interests of parties that do not have that sort of money—I am sure that many people who have done practical politics will know the reality of this—very often you have a street, down which is the boundary of a constituency or a council ward, and the people on one side are in a hotly contested marginal constituency and those on the other are in a safe seat. Neighbours talk to each other; one says, “I’ve got so many election leaflets coming through my door, my recycling bin is totally overflowing”, and one from the other side of the street says, “Oh, is there an election on? I didn’t know.” Think about what kind of disrepute that brings our politics into, when massive amounts of resources are concentrated in a small number of seats. People can see that this is not right or balanced, or a national political contest.

The idea of allowing notional expenditure just to roll on takes us to a very bad place, so I back the noble Lord, Lord Rennard, on this.

[Lord Stunell (LD)]

My Lords, we have already explored what the exact meaning of “encouraged” is. I thought the answer was going be a lemon, but it is guidance, apparently, which is not very encouraging. I am hopeful that the courts in the event will be just as robust in their interpretation of “encouraged” as they were in respect of coach trips to Thanet, so that this clause in practice will not make the change in the law the Minister hopes for. It may become a dead letter, even. More exactly, it will become not a dead letter but a further cause of confusion, with no reduction in jeopardy for agents and candidates who rely on it. But for the purposes of this debate, let us take it at face value.

In our debate last week on Clause 17, I referred to that clause as an exercise in “wing-clipping” the Electoral Commission. By the Minister’s own account, as he told your Lordships, in practice, those proposed changes made no real difference to anything. He obviously intended to give us some reassurance that those changes meant nothing at all, but I surmise that when he reports back to CCHQ he will make it sound a far more impressive change. Now we have Clause 18, which I also think is going to be found facing both ways. In reality, it is an attempt to satisfy the bloodlust of some right-wing Tory MPs who had rather a close shave in 2015. The Minister’s intention is that if this clause goes on the statute book next time, they will get away scot free. For that matter, we will all get away scot free, able to do exactly as the noble Baroness, Lady Bennett, has just spelled out. I actually think that in responding to this debate he will attempt to sell it to us as something far less important or serious: “It is simply a margin note to clarify the commonly accepted understanding of current law. Nothing to see here; let us move on to the next clause.”

It is worth exploring what the law says now and how it will be different if this clause stands. My noble friend Lord Rennard spelled this out very clearly. In a general election, there are two financial constraints, one at constituency level and one at national level. The constituency spending level is, comparatively speaking, tight, and the national level is, comparatively speaking, generous—and about to become even more generous, apparently. That second constraint—the maximum figure a party can spend outside constituencies—goes into a national campaign. Even the Conservative Party, with all its large donors from various nationalities and provenances, has actually found it hard to spend up to the national limits; and no other party has come anywhere close. So there is an obvious temptation to use some of that spending power in supporting constituency campaigns, which may be pressing hard up against their expense ceiling.

Of course, big cheques cannot simply be handed over by a national party campaign to the local one. It would be too visible. But goods and services in kind are much harder to keep in focus from outside. Even so, existing election law requires the constituency agent to give a fair account of any goods and services received below cost, and that that difference should be taken into account as a donation in lieu. In practice, help has to be a little more nuanced and a little more distanced from the agent. That was the nub of the fracas in Thanet. The election court saw through the Conservatives’ sleight of hand, so now we have Clause 18.

I call Clause 18 the “get out of jail free” clause. No notional spending by a party in a constituency will count unless the local agent or responsible person has “directed, authorised or encouraged” that spending. It probably does not work, although the dialogue between the party and the agent would be an interesting one to hear, would it not? “Hi Mr Agent, just a quick call from national HQ to let you know we are sending in a couple of teams to work alongside your people for the next couple of weeks. No big deal, it won’t cost you a penny. Now, don’t say a word, I don’t need any encouragement from you. It is just that your seat polling figures are slipping, so we think you need some help.” Was there any authorisation or encouragement? No, he did not encourage anybody. He did not open his lips.

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[Lord Hodgson of Astley Abbotts (Con)]

I think the Electoral Commission is a special case because we are talking about an elections Bill, but it goes wider than that. My noble friend Lord Blencathra is hot on this. He has a list of bodies that are, as he would say, running too free, but the Electoral Commission is a special case because of the nature of the Bill we are discussing. A subsidiary question is, do we need more codes elsewhere? I have some amendments down later on, which we shall get to on Thursday, which will provide a way of clarifying and giving third-party campaigners some security and safety about what they are doing— I think that is much more important. However, that is a discussion for Thursday.

My last point is to the noble Lord, Lord Collins, about his Amendment 30B. We have said again and again that we need to have our election law in one place. The fact we are having to discuss RPA 1983 in connection with this Bill in 2022 shows how urgent this is and how the points made across the Committee need to be taken on board by the Government, who at some point need to find time to pull this all together.

[Lord Stunell (LD)]

My Lords, I may be able to join up some of the dots in what has just been said, particularly to draw out the position of the Committee on Standards in Public Life. The noble Baroness, Lady Hayman of Ullock, said it would be really useful to know which of the CSPL recommendations the Government believed—or thought or imagined—they had ticked off: which boxes they have ticked and which they have not. Maybe the Minister in reply could undertake to write us a letter which sets out the recommendations and whether the Government have, have not or have partly fitted them into the Bill; I think that would be to the benefit of the debate. Of course, the very first recommendation of the CSPL in that report is that there should be a comprehensive Bill on all election law, as set out by the Law Commission. I know the Minister, in replying at Second Reading, explained that it was all too busy and too complex, so recommendation 1 is not going to happen at this time, but not doing recommendation 1 is causing problems with a whole lot of other things that are happening.

In defence of Amendment 25A, proposed by my noble friend Lord Rennard, the current position is as it was when the Electoral Commission drew up guidance in 2020. It submitted it to the Cabinet Office so that it could be published as a statutory instrument and, whatever the defects of statutory instruments, its guidance would in fact have come before the House. So, there is a downstream process—it may not be very effective, but it does to some extent, I hope, tick that particular box.

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I hope that these comments will provoke the Minister to give some commitments, even if he is not prepared to accept the amendment—I have no doubt that he is not prepared to do that. We are trying to generate a discussion in which we may be able to get some more positive commitments from the Minister than we have so far had.

[Lord Stunell (LD)]

My Lords, on Amendment 28B, which is about transparency, perhaps the Minister could comment on some of the recommendations in the CSPL report which related precisely to the point of transparency of election expenditure and its availability in electronic form so that it could be studied more widely and easily. Obviously, that clearly requires legislation and might well properly have been in the Bill.

[Baroness Scott of Bybrook (Con)]

My Lords, these amendments from the noble Lord, Lord Collins of Highbury, relate to existing provisions in electoral law in respect of codes of practice on election expenses for candidates that the Electoral Commission may prepare.

We have included measures in Clause 19 to ensure that any code of practice on candidate spending from the Electoral Commission is sufficiently broad to fully serve the purpose of explaining the rules on candidate spending, which are set out in the Representation of the People Act 1983. We are making this change to put the scope of the guidance beyond doubt. It is important that the guidance is comprehensive, so that we can address concerns raised from across the political spectrum on notional expenditure.

Amendment 25B would require the commission to issue new guidance at least every 10 years. As the noble Lord said, the commission is already able to amend any such code as required from time to time and must reflect the rules as set out in law. Clearly, the Electoral Commission is expected to keep up to date all guidance, including such a code of practice, and revise it as far as necessary to reflect changes in the law. Therefore, there is no need to legislate in such a rigid fashion.

Amendment 25C would require the Secretary of State responsible for approving the code to consult on that code before its approval. It is for the Electoral Commission to consult whomever it considers reasonable to consult before it submits a draft to the Secretary of State. The Secretary of State can then accept it, with or without modification, and must lay it before Parliament. It is then down to Parliament to consider the code laid before it and decide whether or not to approve it.

Amendment 28A would require the Secretary of State to publish within 12 months of Royal Assent draft legislation to amend the 2000 Act

“for the purposes of increasing the transparency of expenses”.

I say with the utmost respect to the noble Lord that that is quite an imprecise instruction to the Secretary of State. Transparency of electoral expenses is a cornerstone of the UK’s electoral system. Electoral law already has a robust set of controls and reporting requirements which ensure that spending during election campaigns is transparent, and the Bill supports that. Political parties, recognised third parties and candidates are already required to report their election spending, and this includes money they spend on digital campaigning, an issue raised by the noble Lord.

[Lord Stunell (LD)]

I apologise if I was misunderstood. I was referring not to digital campaigning but to the digital submission of election expenses. At the moment, they are often kept in a cupboard in the returning officer’s office and are not accessible in any way. There are also issues of data redaction, and so on, which make it more complex.

[Baroness Scott of Bybrook]

I will take that back and get an answer for the noble Lord. It is an important issue, as the way we will do elections in future will be very different because of new IT.

As I was saying, the new digital imprints regime will also improve the transparency of digital campaigning, requiring those promoting campaign content online, paid and unpaid, to clearly show who they are. With that said, I ask the noble Lord to withdraw his amendment.

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[Baroness Noakes (Con)]

My Lords, I have one further question to add to the questions that have been put to the Minister. New subsection (3C), which will be introduced by Clause 21, refers to calculation of assets and liabilities. Noble Lords will be aware that, as an accountant, I get interested in how assets and liabilities are measured. I understand the concept of net assets, which is assets minus liabilities, and the concepts of gross assets and gross liabilities. What I do not understand is the concept in new subsection (3C)(c) of assets plus liabilities. Under this, if a party had assets of £255 and liabilities of £250—that is, they had net assets of £5—adding the assets and liabilities together would give a figure of over £500, which would bring it within the scope of the new subsection, which, frankly, I do not understand.

[Lord Stunell (LD)]

My Lords, I will comment on Amendment 31, which is about record-keeping. I return to the point I made a few minutes ago: it is about not just keeping the records but access to the records that have been kept. There are plenty of “publicly available” records that are not actually publicly available in real life. Election expenses are a case in point: GDPR has added an extra layer of complexity because they often contain personal details, bank details, addresses et cetera that ought not to be transmitted to other persons. Clearly, these records might well come within the same purview. I do not seek a detailed reply from the noble Baroness as that would be quite unfair, but I hope that, as we proceed, the Government will be able to illustrate that they have considered carefully issues of record-keeping, and, indeed, how the transparency that goes with record-keeping will be maintained in the current and projected circumstances.

[Baroness Scott of Bybrook (Con)]

My Lords, as part of the registration process, political parties are not currently required to submit a declaration of their assets or liabilities. This information becomes available only in their first annual statement of accounts published on the Electoral Commission’s website. Clause 21 brings forward this important transparency to the point of registration.

The noble Lord, Lord Collins, tabled a probing amendment seeking to understand why the threshold for this declaration is set at £500. I am pleased that the noble Lord has highlighted this, and I point to the fact that this measure, including the £500 threshold, was first recommended by the Electoral Commission in its 2013 report.

Elections Bill

Lord Stunell Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 15th March 2022 Lords Chamber

[Baroness Barker (LD)]

My Lords, at this late stage, I want to thank the noble Baroness for her introduction. I do not intend to repeat many of the points that she put forward, which were entirely valid.

The history of legislation in this area over the past 20 years is of fundamentally confused aims which are compounded over time and, particularly these days, are exaggerated by new forms of digital campaigning. It becomes increasingly difficult to achieve the stated aims of the legislation, which is to understand who exactly is undertaking campaigning, how they are doing it and where their funding is coming from. Until such time as we sort out some of the points that the noble Lord, Lord Hodgson of Astley Abbotts, directed us towards, about what legitimate advocacy is and what party-political campaigning is, we will never sort this out entirely.

At every stage of this legislation, we have to ask what problem it is supposed to be answering. Do you know what? It is never very clear. That is a fundamental problem. My understanding of Clauses 24 and 25 is that they try to limit third-party campaigning to specific UK-based bodies and therefore to stop foreign interference. I am not entirely sure about that. As somebody who spent an awful lot of time in the charity world, I look very carefully at the description of entities. The Explanatory Note for Clause 24 states that it

“inserts new section 89A(1) of PPERA, which will prevent any third party from incurring controlled expenditure (including notional expenditure) during a regulated period, unless it is either eligible to register under section 88(2) of PPERA or an unincorporated association with the requisite UK connection”.

Does “unincorporated association” mean a charitable entity? What does “requisite UK connection” mean? Does it mean registered as a charity in the United Kingdom or not? As the noble Baroness said, under Clause 25, the Electoral Commission has something that we might welcome; that is, an ability to stop whole classes of organisations or entities registering, but, at the moment, we do not know what they are or what they might be. If we did, we might agree, but there is something about the way in which this is all written that is unclear.

That leads us on to the key problem that that creates, which is how the Electoral Commission or the police will enforce this, particularly if it is entities of an uncertain nature outside the United Kingdom. It sets up yet another problem. I would therefore welcome it if the Minister could unpick all that and explain to us precisely what is going on here and what it is that we are trying to sort out.

[Lord Stunell (LD)]

My Lords, the noble Baroness, Lady Hayman of Ullock, very generously attributed to us two items of business on this string that were actually submitted primarily by her colleague, the noble Lord, Lord, Collins—that is Amendment 45A—and herself in respect of opposing the Question on Clause 24. I refer to page 8 and 9 of the second Marshalled List of amendments to support the validity of the counterclaim I am making.

The intention to oppose the question of Clause 24 was tabled in the name of the noble Baronesses, Lady Hayman of Ullock and Lady Meacher, who is in her place and may well want to speak to that proposition. All I wanted to say at this stage is that the noble Baroness, Lady Hayman, has opened up the big questions that lurk in relation to Clause 25. We will very certainly and definitely want to return to that, and we have stated our intention to oppose the Question that Clause 25 stand part of the Bill. But that is clearly not part of this string, and I think we will be resuming discussion on that at another time.

My noble friend Lady Barker has quite rightly pointed at the fog that surrounds the intended purpose of Clauses 24 and 25, and the lack of what I would describe as a credible justification for the alterations proposed in these two clauses, particularly in relation to Clause 24, seeing as that is the one that is in front of us at the moment. My noble friend Lady Barker pointed out some of the questions that arise from that. My understanding—maybe the Minister in replying could confirm it—is that an unincorporated association would, for instance, include an organisation which I believe is called the West Midlands Industrialists, which channels funds directly to the Conservative Party—entirely legitimately; I am not suggesting anything different. An unincorporated association could be a trade association, formal or informal; it could be some kind of NGO; it could just be an informal grouping that has got its constitution together. It is an entirely separate issue whether they are legitimate bodies to be funding elections—but the law as it stands says that that is legitimate. Except insofar as deleting Clause 24 might form part of the agenda for the rest of this evening, there is no proposal before us to change that. But I think we should perhaps ask the Minister if he or she can rehearse the unincorporated associations question, so we can understand, perhaps a bit more fully, what we will in essence eventually finish up this evening by nodding through. With that, I defer to the noble Baroness, Lady Meacher, who I am sure will want to speak on Clause 24.

[Baroness Meacher (CB)]

My Lords, I rise to support the proposal on Clause 24 in the name of the noble Baroness, Lady Hayman of Ullock, to which I added my name. I think most of the points that need to be made have been made very well. I have some sympathy with the proposal from the noble Lord, Lord Hodgson; I think four months is a great improvement on a year as a bar on campaigning that might possibly be understood to be electioneering by small voluntary organisations—a very great improvement, actually. The real thing is whether we need this at all. I am very conscious that Clause 24 actually creates an offence. A small, rather vulnerable voluntary organisation could be setting out why its cause is so important and subsequently find it has done this within an election year; and it may be fined, I suppose, for this breach and for committing an offence.

So many bits of this Bill seem contrary to the whole essence of our democracy. Civil society contributes so very much to our political life through its work drawing attention to vulnerable groups and so on. I worked with the Child Poverty Action Group, as did the noble Baroness, Lady Lister. I was there for some years. When you are trying to draw to the attention of political parties just what really poor people are going through, how on earth could you be committing an offence if someone later calls an election?

I have a lot of worries about Clause 24, particularly because it creates that offence. It is a bit strange to me that Clause 24 stand part and Clause 25 stand part have been split because a lot of my concerns about Clause 24 are in fact deep in Clause 25—so much is left to regulations and Ministers can determine all sorts of things in relation to this provision. We will get on to that next time. I think that Clause 25 compounds the worries about Clause 24; I hope very much that the Minister will take this seriously and that the clause ultimately will not stand part.