Elections Bill

Baroness Scott of Bybrook Excerpts

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

Doing this is really dangerous. I know we will get into other debates on the codes and Electoral Commission guidance, and we will go on to some of the other issues, but we are in danger of undermining our good constitutional position of single-Member constituencies in favour of a more presidential-style election campaign. That is a big risk, and we should resist it. If it is not broken, do not fix it. Let us stick with what we have.

[Baroness Scott of Bybrook (Con)]

My Lords, I will start by answering the noble Lord, Lord Collins. He asked twice, once of my noble friend and once of me: what is the problem here? Currently, as the 2018 Supreme Court case revealed, the law is at odds with what the candidates understand in their communities. That ruling has meant that agents are now unsure—we have talked a lot about how difficult it is to get agents —about how to account for notional expenditure. That is exactly what we are addressing in the Bill.

Before I move on from the noble Lord, I will just say how much I agree with him on the importance—to me, the most important thing in our electoral system—of that connection between an individual candidate, whether local or national, and the communities that they are trying to serve, and do serve if they win an election. To me, that is the most important thing in our democracy.

The level playing field was brought up by a number of noble Lords, including the noble Baroness, Lady Bennett, and the noble Lords, Lord Rennard and Lord Wallace. It is important, but the rules that we are putting forward on notional expenditure are designed to maintain free and fair elections. Political parties will not be able to spend more on candidates as a result of these amendments. All spending which is currently recorded will continue to be recorded. These amendments will therefore uphold the level playing field for elections, which, as I have said, form the cornerstone of our democracy. Expenditure that promotes an individual candidature will continue to count towards a candidate’s own spending limit. Expenditure which is joint between a party and a candidate will continue to be apportioned in an appropriate way and reported to the returning officer. The level playing field is continued.

A number of noble Lords brought up national spending limits. Spending limits are different from the protections for candidates which ensure that their agent must approve certain expenditure, but the Government are intending to review party and candidate spending limits for all other polls apart from local elections, which were increased in line with inflation in 2021. It is important that these are uprated in line with inflation, which will create a solid baseline for future reviews.

The noble Lord, Lord Stunell, again mentioned national versus local spending and asked whether this would cause spending to stop being reported and allow parties to spend more on candidates without reporting it. No, it will not. No notional expenditure will stop being reported as a result of this clarification. Benefits in kind which are offered and used by them or their agent, or anyone authorised, directed or encouraged to make use of them on the candidate’s behalf, will still need to be reported. Also, where a third party, including a political party, is spending money to promote a candidate directly to the electorate, this generally falls under spending in Section 75 of the Representation of the People Act 1983. Those reporting rules will still apply.

The noble Lord, Lord Wallace, asked about transparency. Transparency is indeed there and will continue to be there in all spending on local and national elections.

We have heard already, and it has been said a number of times, that Clause 18 clarifies the law on notional expenditure, making it clear that candidates need to report only benefits in kind—that is, property, goods, services and facilities that are provided for the use or the benefit of the candidate at a discount or for free—which they have actually used or which they or their election agent have directed, authorised or encouraged someone else to use on their behalf. I think it was the noble Lord, Lord Wallace, asked about somebody ringing up from central office and saying that they are bringing down a bus. I suggest that you will have either authorised or encouraged it; I do not believe you would say nothing on the end of that phone if that is going to happen. This is what was already widely understood to be true. Nothing much is changing; we thought that was true prior to the Supreme Court judgment in the matter of R v Mackinlay and others.

In its 2019 report on electoral law, the Public Administration and Constitutional Affairs Committee called for consultation to take place on how the law on notional spending could be clarified. In evidence to PACAC, the Labour Party said that it would be supportive of legislation

“that would serve to clarify Parliament’s intention as to the extent the election agent is responsible for expenditure by third party campaigns to support their candidates.”

So the Labour Party, in PACAC, was in support of this. That is precisely—

[Lord Collins of Highbury (Lab)]

I am sorry to interrupt, but one has to see the context of that response. Our argument tonight is that this clause does not do that—it does not provide clarity. I wish it did, and then we could all support it. But it could lead to the complete opposite of what the noble Baroness is suggesting.

[Baroness Scott of Bybrook (Con)]

I suggest that the Government believe that it does clarify; that is exactly what it does, so we will have to disagree on that. We feel that Clauses 18 and 20 of the Bill do precisely what the Labour Party asked for and supported in PACAC.

[Lord Wallace of Saltaire (LD)]

My Lords, if I have understood the argument that the noble Baroness has been making, this clause would not in any sense change the outcome of the Thanet case. If it is clarifying things in that direction, the clause is not necessary.

[Baroness Scott of Bybrook (Con)]

No, what I am saying is that it will clarify for candidates and agents what is required and what was not very clear at the time of that case.

We have sought input on these measures from the Parliamentary Parties Panel and we are confident that they will bring important clarity to the rules and support compliance. Indeed, Craig Mackinlay, the Member of Parliament for South Thanet, whom we have talked about a number of times, knows better than anyone the deficient nature of the current rules, and he welcomed and praised the clarity which this Bill brings to notional expenditure.

In this clause, we are also making an equivalent amendment to the notional expenditure rules for other types of campaigners, such as political parties and third-party campaigners, to ensure that all the rules are consistent. Together, these changes will bring much-needed reassurance and clarity to candidates and their agents on the rules that apply to notional expenditure for reserved elections. Alongside guidance from the Electoral Commission, with which we are working closely, this measure will support compliance with the rules and ensure that those wishing to participate in public life can feel safe doing so, clear in their legal obligations. It is for this reason that I urge that this clause should stand part of the Bill.

[Lord Rennard (LD)]

My Lords, I am grateful to the Minister for that reply. She mentioned the PACAC report into some of these issues, but without quoting the crucial recommendation, in paragraph 16, which says that

“reform should only be taken forwards on the basis of clear consensus.”

This debate, at the very least, has shown that there is not that consensus. It seems to me that the debate is not about how to account for notional spending but whether to account for some of it at all. We have not really been satisfied that, if there were busloads of people from one party, the costs of the coaches, their hotels, their meals and the leaflets they deliver—all spent in a constituency with the clear intention of promoting a candidate—will appear in the constituency limit for that candidate, which is their proper place. The Bill does not seem to make that plain.

I am very grateful to the noble Lord, Lord Collins, and the noble Baroness, Lady Bennett, for confirming on behalf of the Labour Party and the Green Party that they do not see this clause as necessary. It seems to add significant confusion, and in my view it is particularly important not to add to confusion about what should be included at the same time as you may increase spending totals nationally. As the noble Baroness said, they may have to rise, but the Government said yesterday, in answer to a Written Question I tabled on 28 February, HL6502, that they may increase in line with inflation. That is inflation since 2000, which is 79% and would take a £19.5 million limit to nearly £36 million. There are more issues to debate on this in the next group of amendments.

--- Later in debate ---

[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.

[Lord Collins of Highbury (Lab)]

I thank the Minister for her comments. Of course, I am trying to get on record some political points here, so I am going to repeat them. I understand the statutory requirements for consultation by the Electoral Commission, but there is often a failure to consult beyond the political parties, and we need to ensure that that is properly addressed. The noble Lord, Lord Stunell, made a very good point about transparency: if I wanted to look into a particular record, it is extremely difficult to do so, and there are ways to make it easier.

In later debates we will return to the issue of transparency, particularly when we get to Clauses 26 and beyond, but in the light of the Minister’s comments, I beg leave to withdraw my amendment.

--- Later in debate ---

[Baroness Scott of Bybrook (Con)]

My Lords, the Bill delivers on the Government’s manifesto commitment to secure the integrity of elections, ensuring that they remain secure, fair, transparent and up to date. The UK Government undertook extensive engagement with the devolved Administrations in preparing the policy and drafting the legislation. For a number of measures that are within devolved competence, the UK Government considered that a co-ordinated UK-wide approach would have been beneficial by ensuring consistency and operability for electoral administrators and those regulated by electoral law, and strengthening protection for electors and relevant political actors. It is therefore regrettable that, while the Government sought legislative consent for these measures, the Scottish Parliament has not granted such consent and the Welsh Government have recommended that the Senedd does not grant legislative consent to these measures.

This amendment would require the Secretary of State to make a statement on the application of Clause 20 in devolved Administrations. This measure will apply only to candidates at reserved elections, and the Scottish and Welsh Governments could choose to replicate these measures in respect of elections within their legislative competence. For clarity and reference, I remind noble Lords that subsections (2) to (7) of Clause 18 make equivalent amendments in respect of other campaigners, including political parties.

We are respecting the request of the devolved Governments by limiting this power in application only to elections within the UK Government’s legislative competence. Clause 25 is necessary because it is important that new categories of campaigner can be added to the list if necessary. This is because the introduction of the restriction on third-party expenditure in Clause 24 means that any category of campaigner not on the list will be significantly restricted in their ability to campaign by not being able to spend more than £700.

The relevant provisions will apply only to matters of reserved or excepted elections, and the Bill makes an important clarification, so that candidates and their agents can have full confidence about their legal responsibilities and do not need to fear being responsible for benefits in kind of which they had no knowledge. The Scottish and Welsh Governments could choose to replicate these measures within their legislative competence.

Finally, I will reiterate that the Electoral Commission will be responsible for preparing guidance on notional expenditure which will support those seeking to contest elections and enter public life throughout the whole of the UK. With that said, I ask the noble Lord to withdraw his amendment.

[Lord Khan of Burnley (Lab)]

I thank the Minister for that comprehensive response. Just to reiterate, we will continue to have discussions around devolution, as it is affected by many parts of this Bill. In the meantime, I beg leave to withdraw.

--- Later in debate ---

[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.

[Baroness Hayman of Ullock (Lab)]

If it was a 2013 report, and thinking of inflation, I wonder whether that should have been reconsidered, to come back to an earlier discussion.

[Baroness Scott of Bybrook (Con)]

The noble Baroness has now undermined the argument about going up rather than down. I have checked that, because I know the noble Baroness mentioned 2018. I have 2013, but I will clarify that. It was also more recently recommended in the CSPL’s July 2021 Regulating Election Finance report, which is more up to date. It would not be proportionate to require parties with assets below £500 to submit this declaration.

On a similar topic, the noble Baroness, Lady Hayman, tabled a probing amendment to understand why the clause specifies that the Electoral Commission should make this statement available for as long as it sees fit. This is simply a matter of consistency with the existing approach to assets and liabilities declarations contained in a party’s annual statement of accounts. Under Sections 45 and 46 of PPERA, the commission is able to keep documents, including the annual statement of accounts, for

“such period as they think fit.”

Therefore, this is simply a technical provision, enabling this first assets and liabilities declaration to be compared with various subsequent records provided by political parties in their annual statements of accounts.

I will write to my noble friend Lady Noakes on her very interesting question, to which I would like to know the answer as well. I will place a copy in the Library so that we are all aware of it. That said, I urge noble Lords not to press these amendments.

[Baroness Hayman of Ullock (Lab)]

I thank the Minister for her response. Like her, I thought that the noble Baroness, Lady Noakes, asked an extremely interesting question that did not occur to me when I read through the Bill. It was a very thoughtful question to take forward. I am interested to see where that goes.

The noble Lord, Lord Stunell, made an important point about access to records and transparency of record-keeping. It is important that we all take that on board. The Minister gave a clear response on the reasoning behind this.

On my Amendment 31, which would delete the phrase

“such period as the Commission think fit”,

it is interesting to note that this is consistent with what PPERA says. I was not aware of that, so I thank the Minister for that. I wonder whether there is any guidance as to what it means—I have no idea whether it is five or 50 years. It would be interesting to know a little more about that and what happens in practice, so that there will be more information in that area as we take this forward.

[Baroness Scott of Bybrook (Con)]

I will endeavour to find out exactly what was behind that and let the noble Baroness know, and I will also address the point about transparency and access to all these figures, because that is important. It is no good keeping them unless they are easily available to any person who wants to see them. We will take that back and respond.

[Baroness Hayman of Ullock (Lab)]

I thank the Minister for that clarification. I look forward to her response. I beg leave to withdraw my amendment.