Elections Bill

Baroness Hayman of Ullock Excerpts

2nd reading
Wednesday 23rd February 2022 Lords Chamber

[Baroness Hayman of Ullock (Lab)]

My Lords, we have heard from the Minister that the Bill intends to make substantial changes to our electoral law. Despite its stated ambitions, however, it does not tackle the fundamental and widely recognised need to consolidate the voluminous and fragmented body of existing law. In fact, it will do the opposite. Together with the secondary legislation needed for implementation, it substantially increases the complexity of our electoral law and brings in numerous measures about which we have serious concerns.

Having said that, I will start with some positives. It is important that the Bill looks to tackle intimidation, and we support the proposals to extend the imprint rules to digital communications and materials. The Electoral Commission has been calling for this for many years and it is a welcome step to bring our democracy into the 21st century.

On the subject of welcomes, I very much welcome the noble Lord, Lord Moore of Etchingham, to our House, and I am very much looking forward to hearing his maiden speech.

I will now raise our concerns about the lack of consultation and scrutiny received by many of the Bill’s proposals. The Public Administration and Constitutional Affairs Committee agrees and stated in its report that the Bill

“received insufficient public consultation prior to introduction.”

It further added that it

“should have gone through a pre-legislative scrutiny process, with a draft Bill being scrutinised by a Joint Committee. Given the lack of pre-legislative scrutiny and the significance of the measures contained in the Bill, the Government should place a statutory commitment to undertake post-legislative scrutiny on the face of the Bill.”

In short, the whole thing seems to have been constructed based on not much evidence at all.

A more cynical mind might suggest that it is an example of Ministers choosing not to consult because they knew it would be a bruising experience that would not support their proposals. So I ask the Minister why the Government have not consulted on these provisions and whether he can assure your Lordships’ House that

“a statutory commitment to undertake post-legislative scrutiny”

will be

“on the face of the Bill.”

Clause 1 introduces voter ID at polling stations to address the electoral offence of “personation”. However, personation is exceedingly rare in British elections, with just two convictions between 2010 and 2018. The Government have tried to justify their proposals through a precautionary principle: that it might be happening more. While there is nothing inherently wrong with taking a precautionary step, this seems a remarkable basis on which to introduce a policy that seems certain to deny many more legitimate votes than it will prevent illegitimate ones.

The issue of electoral fraud in Tower Hamlets is where this policy has come from, but the problem there related not to personation but to public funds, intimidation and the misuse of postal votes. The judge in the Tower Hamlets case, Richard Mawrey QC, told the Bill Committee in the other place:

“Voter ID at polling stations, frankly, is neither here nor there. Personation at polling stations is very rare indeed”.—[Official Report, Commons, Elections Bill Committee, 15/9/21; col. 15.]


The evidence to support the introduction of voter ID simply does not exist. So why is there such a focus on polling station personation while offences committed via postal voting, where there is far more evidence of electoral fraud, are ignored?

Government data looks at how groups of the electorate will be affected by the introduction of voter ID, but it does not explore whether income level indicates whether someone will already have photo ID. The Joseph Rowntree Foundation has considered the impact of voter ID on low-income potential voters. Its research shows that they are less likely to have photo ID than wealthier potential voters. It suggests that 1 million people will therefore be less likely to vote under the new legislation.

The Government’s own statistics show that 3.5 million people do not have access to valid photo ID. The reality is that these requirements discriminate against some groups more than others. As well as those on lower incomes, concerns have been raised that those who are disabled, older, younger or from ethnic minorities risk being disenfranchised. When voter ID was introduced in Northern Ireland, the turnout at the 2004 Assembly elections dropped by 2.3% as a direct consequence.

The proposals in the Bill expect people without the required ID to get a free voter ID card. Those without such ID are more likely to be excluded from society or disadvantaged, but the Bill contains no detail as to how these cards will be issued and administered, with significant details about the voter card application process left for secondary legislation. So how can the Government guarantee that no one will be disenfranchised?

Can the Minister justify the financial cost of introducing voter ID? The impact assessment suggests that it could be up to £180 million over the next decade. Between the lack of convictions for voter fraud, the lack of allegations and the lack of concern among the electorate, why are the Government proposing to spend up to £180 million to make it harder for some people to vote?

The Electoral Commission has said that the Government should do more to modernise electoral registration to ensure that as many people as possible are correctly registered. It has found considerable potential to evolve the current system to make it more joined up with other public services, and to explore automatic or more automated forms of registration. If we wish to strengthen our democracy, as we should, one of the best ways would be to drive up registration and turnout —so it is disappointing that Ministers have missed the opportunity to encourage participation in elections and do exactly that.

I want now to draw attention to the unique challenges that some disabled people experience when voting. While we welcome the Bill’s stated ambition to make voting more accessible, the RNIB has expressed serious concerns that the current wording inadvertently reduces the legal protections for blind and partially sighted people. Will the Minister proactively work with the RNIB and other interested parties to address their concerns and bring in amendments so that no one is disfranchised because of a disability?

On the proposals on overseas electors, we have concerns that the motivation behind the change to remove the 15-year limit is about creating a loophole in donation law, allowing wealthy donors unlimited access to our democracy through unprecedentedly large donations, so I strongly disagree with the Minister’s interpretation of this part of the Bill. Foreign donors should not be allowed to financially influence our democratic processes. Considering recent developments in Ukraine, the Government must be alert to how Russia and others could use illicit finance to influence our political system. Yesterday, my noble friend Lady Smith of Basildon asked the Leader of the House to commit to speaking to the Prime Minister and the Cabinet about removing these provisions from the Bill. I give notice to the Minister that, if this does not happen, we will bring in amendments to remove these loopholes.

At the same time as increasing the number of overseas electors that can register to vote, the Bill removes the right to vote from certain electors who are resident in the UK, such as some EU nationals. Again, on this issue there is nothing in the Bill that helps to solve an existing problem. A regular complaint from overseas electors is that they do not get their ballot papers in good time to return them to the UK for their votes to actually count. Nothing in the Bill explores using modern technology to speed up this process.

I turn to changes to the regulation of the Electoral Commission. We are very concerned about the intention to make provisions for a power to designate a strategy and policy statement for the commission which will be drafted by the Government. This would seem to be political interference in the regulation of our elections, as the Bill gives the Secretary of State powers to direct the Electoral Commission and require it to follow instructions from the UK Government as to its activities and priorities. This calls into question the commission’s independence from political control by the Government. We are in no doubt that this is a dangerous precedent. When we look to similar democracies, such as Canada, New Zealand and Australia, we see a complete separation between Governments and their electoral commissions.

The Government justify this change by saying that Ministers give guidance to other regulators, but these regulators are not responsible for ensuring that candidates, Ministers and political parties stick to the rules. It is essential that our regulatory framework strikes the right balance between upholding the independence of the Electoral Commission and ensuring that it is properly scrutinised and held to account. The Public Administration and Constitutional Affairs Committee is so concerned about the implications of the Bill on this front that it has recommended that the relevant clauses be removed pending a formal consultation on the proposals.

Part 4 of the Bill amends some of the existing rules that provide transparency and place limits on election campaign spending and funding, with proposals to change the rules on non-party campaigning. This will undermine the ability of civil society organisations, charities and trade unions to engage and campaign in our democracy. It must be seen in conjunction with the proposed extension of joint campaigning rules to include political parties. Plus, the effect of Clauses 24 and 25 together would be to allow the Secretary of State, by statutory instrument, to add, remove or define permitted participants in election campaigning, and therefore to effectively restrict categories of organisation from spending more than £700 on such campaigning in the 12 months leading up to a general election.

In a free and open democracy, elected Governments are scrutinised by opposition parties and civil society. That is part of what makes our democracy healthy. The freedom for civil society to do this and to hold those in power to account is a sign of a strong democracy. This Bill is an attack on some parties more than others. I would say that the attack on the trade unions, and the 6 million people who are members of trade unions, is an attack on all working people’s rights to campaign for fair pay at work and health and safety in the workplace. It is also an attack on the very people who have brought our country through the pandemic. Trade unions are already incredibly heavily regulated and charities will feel stifled and gagged by the legislation before us.

Finally, on the introduction of a majority system for certain elections, we question why that change is needed. The Public Administration and Constitutional Affairs Committee is also correct on this that, regardless of arguments over the benefits or disadvantages of the changes made by the Bill to the electoral system of those offices, the way the proposed legislative change was brought in is unsatisfactory. Making changes such as this after the Bill has been introduced and debated at Second Reading in the other place is disrespectful.

In conclusion, this Bill creates more problems than it solves and is not proportionate. It is a waste of taxpayers’ money that reverses decades of democratic process and needs to be completely overhauled.

--- Later in debate ---

[Lord True (Con)]

My Lords, it sounds as if I had better get in some supplies of black coffee for the next few weeks. What a pleasure it is to see the noble Lord, Lord Collins, in his place. I know he has not been well because I reached out to him and hoped to have met him before now to talk about the subjects he has spoken about with such passion today. I hope that we can have that discussion, and I am very pleased to see him here. I listened with great care to what he said.

I also listened with care to the noble Lord, Lord Moore of Etchingham—I have to call him my noble friend. I was fascinated by his Hastings connection. He might be interested to know that my grandmother’s family came from generations of poor Hastings fishermen. Indeed, one of them was drowned off the Hastings coast —it was probably a good thing he did not have the noble Lord’s forebear in the boat at the time. In 1846, my great-great-grandfather built a little fishing boat and called it “Free Trade”. That was a good name then —it was an important year for free trade—and it is a good cause now. My goodness, we enjoyed the noble Lord’s speech today.

This debate has felt at times a little like being in that stall on the beach and getting too close to Mr Punch, but none the less, I give considerable thanks to all those who have spoken. Important points have been raised. It is my duty to try to address the concerns raised, not only today but in Committee. I would, however, like to say again that a great deal of work has underpinned this Bill and the measures within it. I agree with the noble Baroness, Lady Fox, that we should be careful of language. We have heard of a likeness to Belarus, Russia and so on. I take and consider concerns, but I reject the characterisation of this Bill as seeking to suppress votes.

The Bill is inspired by fundamental principles that guide our democratic system, including that people should be encouraged to vote. I agree with the noble Lord, Lord Woolley, that those who are entitled to vote should always be able to exercise that right freely, securely and in an informed way, and that fraud, intimidation and interference have no place in our democracy.

We have to adjust and reform our system—this is more than consolidation; I will come to that in a minute, but consolidation is different from reform—but I cannot promise the noble Lord, Lord Desai, that we will reform it in the way he suggests. There might be difficulties with smartphone voting, for a start. Practically, we believe that the measures we have discussed here today constitute a series of practical improvements to the electoral system. We have worked closely with the electoral sector experts, the AEA, and the Electoral Commission to ensure that the provisions are designed properly. I remind noble Lords that the Electoral Commission is in support of voter identification.

The Minister responsible for the Bill, Kemi Badenoch, and her predecessor, Chloe Smith, took time to meet a wide range of organisations in the voluntary and community sector to inform policy decisions. These organisations have played a part in developing the details of secondary legislation and will continue to do so. I will come to the point made by the noble Baroness, Lady Barker, later in my remarks.

The noble Baroness, Lady Hayman, in what I thought was a very measured speech—I did not agree with it all but I am glad I had a bit of agreement from her on some parts of the Bill—asked about pre-legislative scrutiny, which has come up in the debate, and about post, a subject that I will come on to. The Government have always demonstrated a willingness to listen to and collaborate with stakeholders, but pre-legislative scrutiny is just one way in which the Government can take the views of Parliament as well as the electoral sector and other interested parties. The Elections Bill is a product of a wide range of views and engagement with the electoral sector, civil society, parliamentarians and the Parliamentary Parties Panel. Many elements have come directly from reports and reviews conducted by parliamentarians, such as the 2016 report on electoral fraud by my noble friend Lord Pickles. Four sets of measures in this legislation—namely, those on accessibility, overseas electors, intimidation and digital imprints—have also been directly the subject of government consultation. There are issues relating to accessibility that I will return to.

In addition to that, ahead of bringing forward the legislative proposals for voter identification, we undertook a range of voter pilots in 2018 and 2019 that were independently reviewed by the Electoral Commission. Furthermore, we proactively sought the input and expert eye of those with detailed knowledge of elections operation. I echo the tribute paid by my noble friend Lord Hayward to those who operate elections—people who will be impacted by the measures in the Bill. Since the announcement of the Bill, it has also received scrutiny from the Joint Committee on Human Rights and been debated in the other place, including four evidence sessions.

The noble Baroness, Lady Hayman, asked if I would give a statutory commitment to a post-legislative scrutiny requirement in the Bill. I am afraid I cannot go that far, but I will say that it is standard practice for the Government to conduct post-legislative scrutiny of Acts following Royal Assent. In this case it will be important to allow some time for elections actually to take place so that we can effectively review the impact of the legislation.

The Bill already makes provision to evaluate the impact of implementing voter identification following the first three sets of elections. The Electoral Commission already has a statutory duty, unchanged by the Bill, to undertake reports on the administration of each parliamentary election, so a specific statutory requirement risks not allowing for the necessary flexibility to report following elections as they happen. However, I undertake to the noble Baroness that we will enable the House to follow these developments carefully.

The noble Baroness asked, as did my noble friends Lord Hayward and Lord Hodgson and others, why we are not consolidating electoral law. This is a reform rather than a consolidation, but we remain committed to ensuring that electoral law is fit for purpose into the future. We acknowledge that the process of consolidation is a long-term project desired by many. It would take significant consideration and policy development, and the Government’s immediate priority is to deliver this Bill. However, it is a request of which the Government are aware.

Many noble Lords queued up in the debate to say that the provision regarding voter identification was unnecessary. I guess the argument is that not many burglaries take place and have not happened recently in our road. No doubt those who have that view will not be putting locks on their back door. In saying that it is unnecessary, I thought the noble Baroness opposite also appeared to say that she did not think we had done anything about postal fraud. The reality is that the Bill contains many measures to stop the theft of—

[Baroness Hayman of Ullock (Lab)]

In fact, it was meant to be the opposite.

[Lord True (Con)]

Ah, then I misheard. None the less, on cue I can tell the House that we are banning party campaigners from handling postal votes altogether; we are stopping postal vote harvesting; we are extending secrecy provisions; and we are requiring those registered for a postal vote to reaffirm their identities by reapplying for a postal vote every three years. I think I heard a general welcome and support in the debate for those provisions, and I am grateful for that. That was stated by the noble Lord opposite in his wind-up.

The claim that voter identification is unnecessary was addressed by my noble friends Lord Pickles, Lord Hayward and Lady Pidding and the noble Earl, Lord Leicester, among others. It would be remiss if we did not take action in this respect—action recommended by the independent Electoral Commission. It is also backed by international election observers, who highlighted vulnerabilities in our system and repeatedly called for introducing voter identification, saying that its absence is a security risk. I find it strange that the internationalist party par excellence does not pay any attention to those recommendations.

Showing photo identification is a reasonable and proportionate way to confirm that a person is who they say they are and something that people from all walks of life already do every day. Cabinet Office research shows that 98% of electors already own a photographic document. Everyone eligible to vote will continue to have the opportunity to do so and be encouraged to do so, and any eligible voter who does not have one of the many accepted forms of photographic identification, including lapsed identification, can apply for a free voter card from their local authority. Many members of the public have said in the pilots that they felt that the existence of voter identification increased their confidence in the security of voting.

I absolutely agree with my noble friend Lord Willetts, the noble Lord, Lord Janvrin, and others that we must encourage people and young people to vote. I have to say to the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Woolley, that we are not persuaded by automatic registration. No doubt, from hearing this debate, we will have the opportunity to discuss this in Committee. We think it contradicts the principle that individuals are properly responsible for registering themselves. That was one of the reasons we introduced individual electoral registration in 2014. The evidence shows that an individual system drives up registration and enhances the accuracy of the register. Online registration transforms the ease with which people can register to vote, and in March 2020, there were 47.6 million entries on the parliamentary registers in the UK—the highest number ever recorded. Instead of introducing a costly and potentially flawed system of automatic registration, the Government are committed to building on what we already have to make things better.

There was some criticism of the proposal to introduce first past the post to London mayoral and police commissioner elections. I will look carefully at Hansard but the noble Lord, Lord Kerslake, even seemed to challenge your Lordships to remove those provisions. I remind the House that these were manifesto commitments. The noble Lord, Lord Scriven, also said that there was no evidence of any problem. He said that we were accusing electors of not understanding what was going on. Let me give noble Lords some evidence. The Electoral Commission added that the rejection rate in May 2021 was 0.8% for local council elections; for police and crime commissioners, it was 2.7%; and it was 4.3% for the Mayor of London. In the 2021 London mayoral elections, conducted by supplementary vote, almost 5% of the total votes in the first round were rejected—114,000 ballots. In the second preference, 265,000 votes were invalidated. That is more votes than were validly transferred to the leading two candidates, Mr Khan and Mr Bailey. That is quite a significant problem, and I reject the view that there is no evidence for there being a problem.

The noble Baronesses, Lady Gale and Lady Humphreys, asked about Wales. As I said in my opening speech, I welcome the indication that the Welsh and Scottish Governments will consider legislating comparably across a number of areas. UK Government Ministers remain committed to working with our counterparts as they develop their own legislative proposals. On the strategy and policy statement, the Scottish and Welsh Governments have already recommended that the devolved Parliaments do not grant legislative consent to this measure. Therefore, we are preparing amendments, as I said at the outset, such that the statement must not contain provisions relating to the devolved functions of the commission.

The noble Lords, Lord Blunkett and Lord Thomas of Gresford—forgive me if there are others who I do not name; I have quite a lot to get through anyway—raised the important issue of assistance for blind and partially sighted voters. As noble Lords who are interested in the subject will know, the current difficulties arose partly because of the imperfections of the existing system that the noble Lord, Lord Thomas, spoke about, but there is also a court judgment that needs addressing.

The Government have had extensive engagement on this issue. I assure the House that we are ready to continue that. We are not removing the requirement to support blind and partially sighted voters; we are changing the way it is delivered to ensure that the needs of people with a wide range of disabilities are considered. Our approach will require returning officers to consider more varied and innovative support. That could be people using their own smartphones or devices in the polling station, or the use of a specific magnifier. There is not a one-size-fits-all approach. My colleagues in government and I look forward to further consultation and discussion on this very important subject.

Continuing on that, the noble Baroness, Lady Barker, raised engagement in relation to minority groups. My predecessor, Chloe Smith, conducted a series of round tables last summer with civil society groups, but I assure the noble Baroness that future engagement is also planned with groups that represent those with protected characteristics to work on supporting implementation planning and inform awareness-raising strategies. I will listen and ensure that my colleagues in government are aware of what the noble Baroness said.

There was a lot of discussion about overseas registration, not all of it favourable, although I was very moved by the speech of my noble friend Lord Lexden and his reference to Harry Shindler. The current position —that you are allowed to continue voting for 15 years —was established by the Labour Government in 2002, who determined that British citizens could continue to cast a vote. This did not seem such a shocking thing to the Labour Party then as it says it is now. I do not think that the principle it accepted then is invalidated by the removal of this limit. Why is it that 14 years and 364 days living abroad is fine, but at 15 years and one day Labour says, “We don’t want to know about you. You have no rights”? We believe that the connection that people have with their old country—their home country—does not end overnight in that way.

A suggestion was made by the noble Lord, Lord Rennard, that the franchise change is to increase political donations to the Conservative Party. I expect to hear some rumbles opposite. The issues at stake in the Bill are matters of principle.