Election Law Reform

Andrew Bridgen Excerpts

Monday 11th February 2019 Commons Chamber

[Craig Mackinlay]

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

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

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

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

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

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

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

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

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

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

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

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

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

[Craig Mackinlay]

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

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

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

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

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

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

It goes on:

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

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

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

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

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

--- Later in debate ---

[Chloe Smith]

I am not in a position to set that out on the Electoral Commission’s behalf, because it ought to speak for itself. I do not intend that to be a weaselly get-out, but these codes are the work of the Electoral Commission, and it is for the Electoral Commission to hear these concerns, respond to them accordingly and, in due course, lay the codes before the Commons, and I will come back to that.

[Andrew Bridgen]

We are not accusing the Minister of any weaselly get-out, but she and the Electoral Commission have to understand that there will be no weaselly get-out for any of us if we find ourselves in this situation without clarity on election law. This is a very worrying situation.

[Chloe Smith]

I quite agree, and I hope that that has been clear from the words I have used and repeated tonight. It is in all our interests—I say that in the widest possible sense of the democracy of which we all have the privilege and honour of being part—that these rules are clear. I simply meant that I am not in a position to answer in detail the question asked by my right hon. Friend the Member for Forest of Dean (Mr Harper) about paragraph x, y or z of the code, because that information is available to the House from a different source, and the House should scrutinise that for itself.

Oral Answers to Questions

Andrew Bridgen Excerpts

Wednesday 6th February 2019 Commons Chamber

The Prime Minister was asked—

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

Q1. If she will list her official engagements for Wednesday 6 February.

[The Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office (Mr David Lidington)]

rose—

--- Later in debate ---

[Mr Lidington]

I have been asked to reply, as my right hon. Friend the Prime Minister is in Northern Ireland outlining the Government’s commitment to the people there and our plan to secure a Brexit deal that delivers on the result of the referendum.

I am sure that the whole House will want to join me in welcoming today’s announcement that the next meeting of NATO Heads of State and Government will take place in London in December 2019. This is fitting, as 70 years ago this year, the United Kingdom, led by those Atlanticist champions Clement Attlee and Ernie Bevin, was one of the alliance’s 12 founding members and London was home to the first NATO headquarters. We will continue to play a key role in NATO as it continues its mission of keeping nearly 1 billion people safe.

[Andrew Bridgen]

I have always considered the Leader of the Opposition to be just an unreconstructed Marxist. However, in the light of video footage that has emerged this week, I may well have to change that view. He clearly campaigned vigorously against repeated EU referendums in Ireland, and he declared forcefully that he did not wish to live under a

“European empire of the 21st century”.

In the spirit of cross-party consensus, will my right hon. Friend join the Leader of the Opposition and dismiss once and for all any prospect of a second EU referendum and reaffirm that we are leaving on 29 March?

[Mr Lidington]

The Government’s position is clear. We said to the British people in 2016 that we would accept their vote as decisive. The duty of politicians is to implement the result of the referendum and not to suggest that the public got it wrong and, I think, undermine trust in democracy.

Oral Answers to Questions

Andrew Bridgen Excerpts

Wednesday 9th January 2019 Commons Chamber

[Layla Moran (Oxford West and Abingdon) (LD)]

Q7. I would like to add mention of my own sadness at the passing of Paddy. In his final weeks, he was very concerned about the way that Brexit would play into Britain’s place in the world.

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

From the grave.

[Hon. Members]

Shame!

Oral Answers to Questions

Andrew Bridgen Excerpts

Wednesday 19th December 2018 Commons Chamber

[The Prime Minister]

We have been clear that Parliament will have a meaningful vote on the deal, and we have set out when that will be. The right hon. Gentleman talks about the Scottish economy. If he is concerned about the Scottish economy, why have the Scottish Government taken measures that mean people in Scotland earning £27,000 or more will be paying more tax than they would in the rest of the UK? That is not good for the Scottish economy, and it is not good for the people concerned.

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

Q11. The Prime Minister was completely correct to castigate the Labour party for its deeply flawed plan to snatch shares in private companies. Will she join me in also condemning the South African Parliament, which is currently taking powers to seize land from its own citizens, without compensation and solely based on the colour of their skin? Not only is that wrong, but it risks turning another African country from a breadbasket into a basket case.

[The Prime Minister]

I recognise the concern that my hon. Friend has expressed about this issue. The question of land reform was one I raised with President Ramaphosa when I visited South Africa in August. We recognise the concern there is and the need there is for land reform, but President Ramaphosa has consistently stated that violent and illegal land seizures will not be tolerated and that the process should be orderly within South African laws and take into consideration both the social and economic impact. We want to see a process that is fair and, while it recognises the need to deliver on land reform, does that in a way that is fair to all South African citizens.

European Council

Andrew Bridgen Excerpts

Monday 17th December 2018 Commons Chamber

[The Prime Minister]

I think the hon. Gentleman is referring to the Bill that the Scottish Parliament brought forward that challenged the changes made in relation to the withdrawal Act. On the relationship between the withdrawal Act and the decisions of the Scottish Parliament in relation to Scotland, SNP Members and, indeed, the Scottish Government were aware of the position when they brought that Bill before the Scottish Parliament.

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

Despite assurances from the Prime Minister that the backstop would be temporary, I remain very concerned that if this House approves the deeply flawed withdrawal agreement, we risk being trapped in the backstop indefinitely. Will my right hon. Friend confirm that income tax was introduced in 1799 as a temporary measure to pay for the Napoleonic wars?

[The Prime Minister]

I am interested in the historical link my hon. Friend draws on this matter. I recognise that he and others have concerns about the backstop, and I continue to work to provide the assurances that I hope would enable him to accept a deal and make sure that we leave the European Union with a deal.

Exiting the European Union

Andrew Bridgen Excerpts

Monday 10th December 2018 Commons Chamber

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

Successful renegotiations require trust and credibility. Given the Prime Minister’s breathtaking U-turn today, I put it to her that she has lost the trust and credibility of the House, lost the trust and credibility of the country and, most importantly, lost the trust and credibility of the European Union.

[The Prime Minister]

No. What was very clear in my discussions with European leaders is that we will be able to have discussions with them—myself and the UK Government—on this issue.

Leaving the EU

Andrew Bridgen Excerpts

Monday 26th November 2018 Commons Chamber

[The Prime Minister]

We will not be revoking article 50 or asking for the extension of article 50, and we will be leaving the EU on 29 March next year.

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

Will my right hon. Friend confirm that, although the withdrawal agreement was voted on by the European Union under qualified majority rules, if it is passed by our Parliament, any future relationship and release from the backstop will be subject to 27 individual EU vetoes? That means France will demand our fish, Spain will demand Gibraltar and the Republic of Ireland may even demand Northern Ireland, and the only alternative to these humiliating betrayals and capitulations will be continued vassalage forever under the backstop.

[The Prime Minister]

Obviously, the arrangements in relation to the backstop and for the backstop ceasing to apply are those that are set out in the withdrawal agreement, and of course that does potentially end in the arbitration arrangement. Of course, in terms of the future relationship, the role that is had by the EU and by individual member states will depend on the precise legal form that that agreement or agreements take. But of course if there are areas that are of mixed competence then there would be a role for national Parliaments. If it is only one of EU competence, then of course it is under the sole competence of the EU.

EU Exit Negotiations

Andrew Bridgen Excerpts

Thursday 15th November 2018 Commons Chamber

[The Prime Minister]

We will ensure, in advance of the time at which people take their decision in relation to the meaningful vote, that proper analysis is available to enable people to make a judgment between the deal that is being proposed and alternative arrangements.

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

The Prime Minister is well known for her dancing; sadly, having seen the withdrawal agreement, it is now clear whose tune she has been dancing to. My right hon. Friend campaigned for remain and she voted for remain. Surely it is now in the national interest for her to leave, perhaps following a short transition period.

[The Prime Minister]

I note the way my hon. Friend carefully tried to weave into his question various references to matters that are perhaps not entirely relevant to the withdrawal agreement and the political declaration. Every Member of this House will have a decision to take when the deal is brought back. I believe it is important that we have a deal that delivers on the vote of the British people, which I believe the deal does, but in a way that protects jobs, people’s security and, of course, the integrity of our United Kingdom.

Oral Answers to Questions

Andrew Bridgen Excerpts

Wednesday 5th September 2018 Commons Chamber

[Mr Vara]

First, I pay tribute to the hon. Lady, who I know has taken a passionate interest in this subject; we have talked about it before. She will of course be aware that Northern Ireland has won serious medals at the Commonwealth games for boxing. The issue itself is a devolved matter, and is also an issue for individual athletes and their governing sporting bodies to take up. As far as the boxing association of Northern Ireland is concerned, I suggest that it continues its dialogue with the Ministry of Housing, Communities and Local Government.

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

Does the Minister agree that all sportsmen and women should have the right to represent the country they choose to, as long as they meet the eligibility criteria for that country?

Leaving the EU

Andrew Bridgen Excerpts

Monday 9th July 2018 Commons Chamber

[The Prime Minister]

We have put forward a facilitated customs arrangement. If the hon. Gentleman looks at the details of the various models that were proposed, he will see that his question is not entirely factually correct. However, we will be negotiating such matters with the European Union.

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

Will my right hon. Friend confirm that her Chequers proposals would prevent the mutual recognition of standards, even with highly developed countries such as the United States, Australia and New Zealand, effectively ruling out free trade agreements?

[The Prime Minister]

The proposals would not prevent free trade agreements with those countries, but there is a challenge for us in relation to the United States and standards. We have always supported a single standards model, but the United States has a multiple standards approach, so that would be an issue. However, this deal enables us to sign trade deals around the world.