Elections Bill

Debate between Lord Stunell and Lord Collins of Highbury

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

[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.

Elections Bill

Debate between Lord Stunell and Lord Collins of Highbury

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.

Elections Bill

Debate between Lord Stunell and Lord Collins of Highbury

Lords Hansard - Part 2 & Committee stage
Thursday 10th March 2022 Lords Chamber

[Lord Collins of Highbury (Lab)]

May I interrupt again? The Minister jumps from the specific to the general and keeps saying that this statement is going to be innocuous. The noble Baroness, Lady Noakes, says it is going to be about five-year plans and longer-term strategies, and then the Minister talks about specific illegal acts and the failure to address some of them. We are jumping around. If there are problems—and this is why I jumped up before—particularly on postal votes, let us put in laws to address them. But we are not talking about new laws and new regulations; we are talking about how the Electoral Commission operates within its statutory functions, and the Government now want to interfere in that. This is the issue that concerns everyone. The Minister jumps from broad, innocuous strategy to specific regulation—very dangerous.

[Lord Stunell (LD)]

I appreciate the Minister giving way. I hope that his response will include a little more about what the Committee on Standards in Public Life recommended as the solution to the problem that the Minister quite rightly drew to our attention, because the solution recommended by the committee to the Government is not included in the Bill, and the solution brought forward by the Government is condemned by the committee.