Elections Bill (Fourth sitting)

Cat Smith Excerpts

Committee stage
Thursday 16th September 2021 Public Bill Committees

[The Chair]

Shall I bring in other members of the Committee? Patrick Grady, would you like to ask a question? [Interruption.] Oh, hang on.

[Cat Smith (Lancaster and Fleetwood) (Lab)]

Q I apologise to our witness. I am afraid I had some lift troubles, trying to get down to the first floor. I thank you for your time before the Committee. Will you outline anything that you feel could have been included in the legislation, or that could be amended, to strengthen the integrity of the ballot?

Gavin Millar: I am sorry—I am having trouble hearing.

[Cat Smith]

I will try repeating my question. Is there anything that you feel is missing from the legislation that would strengthen elections, or anything that is amendable that needs to be tightened up?

Gavin Millar: As the Committee probably knows, there is a widely held view that what we have at the moment is a complicated mass of disparate election law provisions in statutes that have been enacted over many years, often containing historical provisions that have just stayed in them down the decades. The mass of that legislative material is difficult and confusing for election administrators—lawyers, judges, candidates and agents.

Accordingly, there is a widely held view that the way to tackle election law now would be to sweep that current body of law aside and modernise it, applying appropriate consolidating provisions in the existing law, into a single, simpler set of statutory rules. The Law Commission said this a few years ago, I have said it and others have said it often. It is disappointing that, in approaching the legislation, the Government have chosen to introduce another rather ad hoc set of disparate provisions that are unrelated, rather than the whole amazing, simplifying rewrite that is required. I suppose that is the first point, in terms of where we are. There is a case—[Inaudible]—to tackle the urgent problems in the electoral system, but with the exception of part 6 of the Bill, which deals with information to be included with electronic material, nothing that it tackles could conceivably be regarded as an urgent problem of the sort that ought to take priority.

The Bill ignores the other most urgent problem in our system, which is the lack of an effective regulatory and enforcement regime to ensure that foreign money and dark money do not enter our political system through donations to political parties. I would say that that is now an election law issue, because in reality there is non-stop campaigning by political parties between the short and long election campaigns, which can be funded by large and inadequately regulated donations. There is the risk not only of money coming into the system that should not be there, but of the level playing field that we have always striven to achieve in our election law during the narrower periods of elections being lost in the intervening periods. It is disappointing that nothing in the legislation addresses those problems.

[Cat Smith]

Q Thank you. I have one follow-up question. The legislation impacts on third-party campaigners, and you have already said that the regulations for elections run across many different pieces of legislation. We do not have that single set of rules for participation. Do you think that the changes to third-party campaigners strike the right balance between engaging third-party campaigners in the democratic process and transparency in terms of the source of political money?

Gavin Millar: There is no doubt that once you have got into the process of regulating non-party expenditure in elections, some very difficult questions arise. Traditionally, those difficult questions have arisen in our system in relation to non-candidate expenditure in constituencies or local government wards—whatever it is—during the election campaign. Local campaigners, non-governmental organisations and so on and so forth can spend some money to campaign, but it is heavily capped. Of course, we are now into the territory where national campaigning is capped and regulated, and the current laws in relation to that are incredibly complicated, very difficult to follow and understand, and very difficult to apply, even for the courts.

I suppose the broad considerations are that we should, in a democracy, encourage and facilitate non-party campaigning of either form, but including national campaigns, to the extent that we can, if it does not unbalance the level playing field across the piece, because that contributes to the democratic process. There are a great many NGOs, charities and third-party campaigners that are not directly party political or campaigning on a range of issues, but may be campaigning on just one issue. It enhances our democracy to enable them to participate, which is going to cost money—they will have to spend money on that—provided that it does not cross the line of unbalancing a level playing field. It is a difficult balance to strike.

One of the features of the legislation that is very difficult is clause 25. It tackles third-party campaigning where it crosses a particular line, which is what is known in the legislation as a joint campaigning arrangement, where the third party or third parties can be shown, as a matter of fact, to have a plan or an arrangement to campaign together. That is an incredibly difficult concept. There have been a couple of cases where the courts have struggled with this, and I do not find the drafting in the Bill very easy, particularly clause 25.

It will be very difficult for campaigners, who might be caught by a suggestion that that is what they are doing, to know whether they are on the right or the wrong side of the line. If they are deemed to be on the wrong side of the line, and a court or a commission says that there is planned co-ordinated expenditure involving more than one non-party campaigner and a political party, that will dramatically reduce the amount that they will be able to spend. They will have to go through the whole process of declaring all the participants in that arrangement, and their available spend will be reduced accordingly. It may be that there are cases where it is justified in having that end result, but you should not have unclear law that leaves people in doubt as to what they can and cannot do and what is and is not a joint campaigning arrangement.

At the moment, that is very unclear in our law and has not been properly resolved by the courts. I would not suggest rushing into the provisions of clause 25. If that part of the Bill is going to go through Parliament, there should be very careful scrutiny of exactly what it is intended to catch and what it is not intended to catch, and of what the consequences are for third-party campaigners who engage in that sort joint campaigning with a political party. I am just not sure that that is there at the moment. That is the problem. Therefore it will tend to risk encouraging that active participation that I said was so important in a democracy.

[Cat Smith]

Q Under clause 25, the Minister would also have the power to add or remove categories of campaigners from being permitted to campaign in elections. Do you have some concern about that?

Gavin Millar: Yes, I am concerned that this part of a strand in our law that is developing, which gives powers to Government and to the Executive to fill in gaps in legislation and take legally binding decisions outwith the legislation. It is very undesirable. It means that nobody knows in advance what the law is going to achieve and how it will work. It reduces parliamentary scrutiny.

Everything that is going to be there that will affect non-party campaigning should be in the primary legislation. It should be simple, clear and easy to understand, and it should be justified in terms of what it is trying to achieve in preventing the skewing of the level playing field. It should be absolutely clear what the consequences are for third-party campaigners, many of whom I advise at election time and in between elections. They are very confused by this. They find it very difficult to know what they can and cannot do, what crosses a particular line and what does not cross it, and what their maxima are for spending. You do not need to be a lawyer to realise that that is undesirable in a democracy, with an activity of such importance.

[The Chair]

Minister?

--- Later in debate ---

[Chloe Smith]

It is very helpful that you close with the point that it must be specified through guidance, because that is indeed what the intention is. It is also what one of our witnesses yesterday agreed was where much of the work should be done.

[Cat Smith]

Q Fazilet, welcome to the Committee and thank you very much for the contributions you have made so far. I have a couple of questions.

You opened your remarks by describing how you felt that the legislation is turning back the clock, particularly for voters who are blind or partially sighted. If I understood correctly, that is because the 1983 Act wording would be rescinded and there would be much more flexibility for local authorities to have potentially quite different ways of supporting blind and partially sighted voters. That would create something of a postcode lottery. What would the challenges then be for voters with a disability or impairment who have perhaps moved house to a different local authority area and might then get a different level of service or a different system to facilitate their needs? Would that be an additional barrier to voting for disabled people?

Fazilet Hadi: I like the words in the Representation of the People Act 1983, “prescribed equipment”. Obviously, guidance can say at any point what that prescribed equipment is for. There might be prescribed equipment for people with other impairments. It is not just tactile devices; it could be adjustable tables or pens that people can grip.

The Government signed up to the UN convention on the rights of persons with disabilities, which says that there must be full participation in political and public life for disabled people. It specifies that there must be materials, facilities and procedures that are fully accessible and appropriate. It specifies that there must be a secret ballot. It specifies that there must be assistance from whoever the disabled person chooses. The Human Rights Act 1998 talks about the right to vote and how we all need to have the ability to express our opinion through voting. The Equality Act 2010 puts a public sector equality duty on the Government and local government––any government––to think about what they are doing to promote the interests of, and make reasonable adjustments for, disabled people and others. We have all these laws and a stated intention that this Bill should make things better for participation by disabled people, but it cannot be better for the equipment to be different in different polling stations. For me as an elector, it is about not knowing exactly what I am entitled to, so that I can try to enforce it if I do not get it. Leaving arrangements to the 152 local authorities in England, and I do not know how many in Scotland, Wales and Northern Ireland, is totally unacceptable.

[Cat Smith]

Q I have heard representations from various different disability charities and advocacy groups representing disabled people about the accessibility challenges of local authority buildings. Part of this legislation relates to voter ID. You have mentioned that you have some concerns about that. Putting those concerns slightly to one side, do you have any concerns about the barriers that would be faced by disabled voters in trying to access the free voter ID that would be administered by local authorities—not the polling stations, but the free ID cards?

Fazilet Hadi: Huge concerns. If we think about who does not have a driving licence or a passport, who does not have a blue badge or a bus pass or a railcard, we are asking those people who have obviously found it unsurmountable for various reasons—those reasons could be cognitive, sensory, digital exclusion; all sorts of reasons—to apply for a card. We are asking the most disadvantaged people in our community, who have not got one of those other cards, to go and apply for a card. It just does not make any sense. These are the people who are least likely to apply for a card. If they could apply for cards and that was easy for them, they would have one of these other cards. I just feel the proposal is completely impracticable.

If we really want the people who are really struggling to vote to come and vote—the people who do not have any of these cards—you can imagine how many challenges that section of the community has, and applying for a voting card would not come anywhere near the top of their to-do list.

[Cat Smith]

Thank you.

[Patrick Grady]

Q Thank you, Fazilet, that is really very helpful. I have quite a technical question about the wording in the legislation and what the Government propose. What they propose to do is to take out the wording that currently exists about prescribing devices for eligible voters who are blind or partially sighted, and to replace it with a more general paragraph about supplying, as you already mentioned,

“such equipment as it is reasonable…for the purposes of enabling or making it easier for, relevant persons”.

Relevant persons would include blind or partially sighted people, but also people with other disabilities or impairments or difficulties.

Is there any reason why you could not just have both? You could keep the specific provisions, perhaps updating them so we are not limiting this to one specific piece of advice, and making a bit of a tweak so that we talk more generally about equipment that might change over time with technology, but keep those provisions and add in the extra requirement for a wider group of voters who might have difficulty accessing the polling stations. Do you see any incompatibility with that approach?

Fazilet Hadi: No, there is no incompatibility. My main point would be that if there is prescribed equipment—that is not just for blind people; if there is prescribed equipment for wheelchair users or people with dexterity problems—let that be prescribed, so that we get consistency across the board, but let us have an additional provision about how all reasonable adjustments should be made, which is actually just repeating the duty in the Equality Act, because electoral officers are discharging a public function anyway. I do not mind that being repeated, but I do not think we should be confusing prescribing equipment for whichever impairment group needs it with the duty to make reasonable adjustments. They can live together quite harmoniously—I agree.

--- Later in debate ---

[The Chair]

We will now hear oral evidence.

[Cat Smith]

On a point of order, Ms Rees. A motion to approve an instruction has been laid by the Government and will be heard on the Floor of the House on Monday, regarding expanding the Elections Bill to include electoral voting systems, specifically in terms of mayoralties within England and police and crime commissioners. Would it be in order to ask questions of Dr Renwick about electoral systems, given that they are not currently in the scope of the Bill?

[The Chair]

My understanding is that matter is not currently in the scope of the Bill. I am aware that the motion is on the Order Paper for Monday.

[Cat Smith]

Further to that point of order, is it possible for the Committee to take evidence on electoral systems at any future scheduled evidence sessions that would take place after Monday, when such systems presumably would become part of the Bill?

[The Chair]

If it is possible to have a supplementary programme motion, then that could be added, but that is not a matter for me. That is usually done through the usual channels.

[Cat Smith]

Thank you, Ms Rees.

[The Chair]

Q I welcome Dr Alan Renwick, deputy director of the constitution unit at University College London. Thank you very much for joining us. We have until 4.15 pm for this session. Please could you introduce yourself?

Dr Renwick: I am Alan Renwick from the constitution unit at University College London and I lead our work on elections and referendums, and some of our recent work on the structure and functioning of the Union.

[Cat Smith]

Q Dr Renwick, thank you so much for your time this afternoon. May I begin by asking you about the Electoral Commission? The legislation proposes some changes to the way the Electoral Commission is managed, in terms of the Government setting out a strategic document to direct the work of the commission. It also proposes slight changes to the Speaker’s Committee on the Electoral Commission by adding a new Minister to a committee that already has a Government bias. Do you have any examples of how electoral commissions work in other democracies and the level of Government interference over regulators?

Dr Renwick: The principle for a good electoral commission is that it should be independent from the Government. The details of how that works in countries around the world depend a great deal on political culture; it is not just a matter of institutions. I would not attempt to draw a tight parallel between how things work in other countries and how things should work in this country. For example, some countries might have a procedure for appointing members of an electoral commission that might look quite political on the surface, but in practice, given the conventions in that country, it may be properly neutral and protect the commission’s independence. The key thing is how to ensure the independence of the Electoral Commission, alongside the appropriate accountability, in the context of the UK. I am afraid that the Bill’s proposals seem wholly contrary to the principle of independence of the commission.

Independence and accountability matter. It is absolutely right that there should be parliamentary accountability, and there is already a great deal of it. The Electoral Commission is, of course, accountable to the Speaker’s Committee; the Public Administration and Constitutional Affairs Committee scrutinises the commission’s work a great deal; and it is also accountable to the Scottish Parliament and the Senedd. I do not think that there is a deficit of accountability of the commission at present.

As for independence, I think that it requires, quite simply, that Parliament lay out the remit of the Electoral Commission, and that must happen through primary legislation, so that Parliament can properly scrutinise and amend that remit. It is not a matter that is written in Government and subject to much more limited parliamentary scrutiny or opportunity for amendment. Parliament should lay down the remit for the commission, which should then get on with delivering that—subject to appropriate scrutiny, as already exists. The idea of having an additional strategy and policy statement written by Ministers, without the appropriate degree of scrutiny, flies in the face of the principle of independence, and therefore seems to be wholly inappropriate.

[Cat Smith]

Q You said that the Electoral Commission is also accountable to the Welsh Senedd and the Scottish Parliament; it is also funded by both those Parliaments. Could you say what consideration the Committee should give to any change due to a strategy and policy statement driven by a UK Parliament, and what tensions that could potentially create within the Union?

Dr Renwick: It could potentially create very great tensions. The proposal would clearly require a legislative consent motion in order to be compatible with the Sewel convention. The Counsel General—the Minister in the Welsh Government—has already indicated that he does not recommend that a legislative consent motion be passed on this matter, and I presume the Scottish Parliament will do the same.

This part of the Bill envisages that Ministers in the UK Government, subject to affirmative procedure, would be able to specify guidelines for devolved matters and that Scottish and Welsh Ministers would only be consulted—and, indeed, would only potentially be notified—in the case of amendments to the statement. That seems wholly contrary to the principles of devolution that have been established, and I cannot see any justification for it. The Sewel convention indicates that Westminster will normally not legislate in matters that have been devolved. There is nothing abnormal here, there is nothing unusual and nothing has changed since these matters were devolved to Scotland and Wales—those devolution changes did not take place very long ago—so it seems very problematic.

That also heightens an issue that already exists with the governance of the Electoral Commission: the commissioners themselves are all appointed on the recommendation of the House of Commons, and that on the recommendation of the Speaker’s Committee. The Speaker’s Committee has, in recent appointments of commissioners with responsibility for Scotland and Wales, either consulted the Presiding Officer or the Llywydd, or included a representative of those people in the committee responsible for shortlisting, but that has been entirely at its discretion.

There is a need to review the arrangements for governance of the Electoral Commission in light of the recent devolutions of electoral matters in those areas. The last serious review of this question, conducted by the Committee on Standards in Public Life in 2007, said at that time that the current governance arrangements were appropriate because those matters were not devolved. These matters have been devolved now, and therefore there is a need for a review.

My impression is that this point has not been thought about terribly much. I do not detect that either the Scottish Government or the Welsh Government have done much detailed thinking on this, but some consideration is needed of how to ensure that the Scottish Parliament and the Senedd are properly represented in these processes.

One final point I should make in this area is one that has been made by others: the fact that the Speaker’s Committee has a majority from a single party is simply indefensible against the principle of independence of electoral processes. That has never happened before—it did not happen when there were large majorities for Governments in the early 2000s; at that time there was no majority for that party in the Speaker’s Committee—but it has been allowed to happen now, which suggests that conventional constraints on the improper exercise of power are not working, to be honest. Legislative action is needed to ensure that there is never a single party majority on the Speaker’s Committee.

[Chloe Smith]

Q Thank you very much for joining us, Dr Renwick; it is very good to have your expertise. May I make use of that expertise with a relatively simple starting question? Clause 14 deals with membership of the Speaker’s Committee, and every so often we hear a misrepresentation—I think I just heard the hon. Lady from the Opposition doing this—suggesting that there will be an extra Minister of the Crown added to the Speaker’s Committee. Could you help us to confirm that concurrent powers, which is what clause 14 contains and which, as you will recall, comes in the history of having made a transfer of functions order before, mean that this will be a question of a substitute Minister—essentially a junior when the senior is too busy?

Dr Renwick: I am not a lawyer, so I wondered when I looked at those words exactly what they meant, but if they mean what you have described them as meaning, they do not trouble me. It was always the intent of the PPERA legislation passed in 2000 that the Minister with responsibility for elections and the Minister with responsibility for local government should be members of the Speaker’s Committee, and if the change is simply intended to ensure that the Minister who has responsibility for elections can participate, but there are only two Ministers participating, then that change does not seem to me problematic.