Elections Bill

Lord Mackinlay of Richborough Excerpts

2nd reading
Tuesday 7th September 2021 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

Let me start with a comment relating to the question the hon. Member for Lancaster and Fleetwood (Cat Smith) raised about the duty on Governments to be more than fair when they are dealing with electoral legislation. Governments should not, even by accident, put in place electoral legislation that advantages themselves over their opponents. However, I do have to say to her that the most egregious example of that was under Gordon Brown, and the more sanctimonious the Minister, the worse the outcome sometimes. It is incumbent on us to make sure that we do not even accidentally disadvantage the other side in elections.

I want to focus on just one thing today, which is the issue of voter ID. The very fact that the phrase has “ID” in it will tell everybody I am against it—they understand that—but it is not for the conventional reasons. This is not an ID system with a database behind it; it is just an ID card that people have to present. Our country has over the centuries been different from other countries: we do not allow our policemen to come up to people and say, “Can I see your papers, please?” It is important to maintain that distinction between the citizen and the state, particularly when we are talking about the fundamental rights of the individual, such as the right to vote.

The Government quite rightly claim that voter fraud undermines our democracy—the battle on that has already occurred to some extent—but the primary voter fraud has been in postal votes, not in personation. We all know how it has occurred in communities up and down the country, and we should deal with it ruthlessly and prosecute. I say to my hon. Friend the Member for Wycombe (Mr Baker), who used to serve with me as a Minister in the Brexit Department, that the answer to his question is that the prosecution should happen in his constituency. That is what should happen, but let us be clear: since 2014 only three prosecutions have occurred. There have been 30-odd allegations but only three prosecutions, and that is out of many tens of millions of votes cast. So there have been 30-odd allegations, three prosecutions and zero election outcomes influenced; that is what we must bear in mind.

On the back of that, Ministers will want to introduce mandatory voter identification. It is an illiberal solution—unsurprisingly coming from the Cabinet Office, as that is what it always thinks up—in search of a non-existent problem. [Interruption.] I have at least some support on my side of the House.

The Government’s own research found that those with disabilities, the unemployed, people without qualifications, people who had never voted before and ethnic minorities were all less likely to hold any form of ID; those are the sorts of groups we are talking about. In two groups—the over-85s and the disabled—between 5% and 10% had no photo ID. The Joint Committee on Human Rights has warned that the introduction of voter ID may have a discriminatory effect on those groups and other protected groups, and the trial referred to by the Liberal spokesman, the right hon. Member for Orkney and Shetland (Mr Carmichael), when 700 people did not vote as a result of photo ID being required, took place in a set of areas where the numbers of people in these groups were very low; it was basically the southern English test area, not central Bradford or wherever.

This is very serious. We are talking about quite a significant fraction of our population. There are 2 million people in the groups I have described who will have to be met by some ID system, and that must be balanced against three voter convictions. That is the problem we are facing.

[Craig Mackinlay (South Thanet) (Con)]

Has my right hon. Friend looked at schedule 1, which contains a very broad list of valid means of identification? I would be very surprised if anybody in the country today did not have one of them, and my right hon. Friend also knows that there is the provision of free ID from the local council.

[Mr Davis]

The point I would make is that I am quoting from Government research. I did not do this research; it is Government research. By the way, since my hon. Friend draws me to Government research, Lord Pickles, a real old pal of mine, did a study on this. I have read it and, to summarise, the conclusion was, “I can find no evidence of personation but that doesn’t mean it isn’t happening, and of course even if it isn’t happening now it might well happen in the future.” It is the precautionary principle gone mad in the centre of our constitution.

The Government answer, as we have heard several times, is free photographic ID. Nevertheless, the Government’s own research again found that about 42% of people without the ID would not take it up. That is really very serious. These groups are going to be disenfranchised because they do not take it up, and they will turn up at the polling station and find that they are unable to vote. This is in pursuit of three convictions.

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[Craig Mackinlay (South Thanet) (Con)]

Thank you for calling me to speak, Madam Deputy Speaker. It is good to be higher up the batting order. I want to highlight to the House that I serve on the Speaker’s Committee on the Electoral Commission and that I was acquitted at Southwark Crown court of an electoral law offence under the Representation of the People Act 1983 on 9 January 2019, as Members will be aware. There are three minor issues that I would like to talk about this afternoon, as well as one major one and one potential omission from the Bill. I hope that some of these points can be addressed as the Bill makes further progress.

There has been much huffing and puffing on voter identification this afternoon, as there always is on this topic. It is perceived by some as a means to restrict voting, but I do not believe a word of that. We have ID with us at most times of the day, when we want to collect a parcel or indulge in age-related activities such as going to the pub. I do not think there are many in this House who campaign as actively as I do for civil liberties, and I see absolutely no conflict in this legislation.

[Mr Goodwill]

Has my hon. Friend encountered a situation in which a voter has lost their polling card and, when they are told that they can still go to the polling station, they are astounded that they do not need any form of ID? In fact, many people who lose their polling cards are nervous about going to vote at all, so having ID might encourage people in that situation to go and vote.

[Craig Mackinlay]

I thank my right hon. Friend for that interesting observation. We have all heard this on the doorstep. When people say, “Oh, I’ve lost my card”, we say to them, “Don’t worry, just go!” So yes, perversely the ID card could actually increase turnout, which is the converse of what some people say.

The mischief that clause 1 is intended to address is that of personation. People claim that it is non-existent, and I know that very few cases go to court, but I disagree with those who say it is not taking place. I will not highlight to the House how easy it is and how it has undoubtedly happened in many constituencies. Clause 2, on postal voting, amends paragraph 3 of schedule 4 to the Representation of the People Act 2000, on absent voting in Great Britain. This will restrict the right to a perpetual postal vote to three years, which is good common sense.

Clause 3 brings in a new offence of handling postal votes. Again, a great idea, but in practical terms it is difficult to know how it could really be effective. Let us hope that the threat of prosecution will be enough to bring people away from the appalling activity that, in parts of the country, we would have to call postal vote farming. There have been some convictions for this, which is all to the good. However, I think there is a wider debate to be had on whether postal votes serve the good of the democratic process.

In some local authorities, postal votes arrive two weeks before voting day. I have often wondered how many of those who vote early, who might be floating voters, find themselves thinking in the last few days when the election is getting exciting, “D’you know what? I’ve changed my mind! I wish I’d waited till the end.” That is a problem as we get an increasing number of postal voters. It is almost like that old saying, “For you the war is over”, because they are no longer in the election process.

The increase in postal votes was implemented by the Labour party amid fears that the number of people engaging in elections was going down. I remember, because I am of a certain age, when people had to have a good reason to get a postal vote, such as being on holiday or working away, or being infirm or ill. A debate needs to be had as to whether that was a better process. I value elections and the process of going to a booth, and I am not convinced that the widening of the postal vote mandate that we have seen over the years has not just widened the risk of fraud, harvesting and coercion, away from the reasonable security of the polling station—I have good, robust feelings about the security of the polling station.

On overseas electors, as long as a person is within the net of UK tax they should have the right to vote. Obviously, a person who goes abroad to work for a few years will lose the annual tax charge, but to get rid of their domicile takes a lot longer. A person can be within the net of inheritance tax for a very long time, and it is sometimes difficult to get rid of it completely. I am very comfortable with where this is going.

The change in the Bill that is relevant to me, of course, follows the result of my 11-week trial at Southwark Crown court behind glass, which concluded in acquittal on 9 January 2019. I did not enter the House as the MP for South Thanet to have a lengthy trial based on very abstract and ambiguous legislation. The issue at stake was the construction of section 90ZA of the Representation of the People Act 1983, relating to the meaning of “election expenses,” and section 90C of the same Act, relating to accounting for discounted or free goods and services and the requirement, or not, for a candidate or agent to give assent and proper authorisation for expenditure in order for it to be a valid election expense.

[Mr Steve Baker]

That sounds like a very complex matter, and I am sure my hon. Friend deserves an extra minute to explain it to us properly. I am grateful that he is here to do so.

[Craig Mackinlay]

I am grateful to my hon. Friend for that assistance.

The matter was tested at the Court of Appeal in front of no less than the Lord Chief Justice, who ruled in summary that authorisation by the candidate or agent is a key feature of an election expense. The Electoral Commission—I make no comment as to its motivation—was dissatisfied with the outcome at the Court of Appeal and took the case to the Supreme Court, which ruled in an entirely contrary way, that spending could be construed as an election expense without receiving formal authorisation or proper deemed authorisation if it is of assistance to that candidate.

Two of the highest courts in the land—one said this and one said that. How on earth is a candidate or agent meant to make any sense of such legislation? I am extremely grateful to my hon. Friend the Minister for listening to my contributions in the House on this matter and for listening to the private Member’s Bill that I introduced some years ago to amend the 1983 Act appropriately so that proper authorisation has to be given. I now see those words in the Bill almost in their entirety. In clause 16, proposed new section 90C(1A) of the 1983 Act requires clear direction, authorisation or encouragement by the candidate or their agent for an election expense to be so. Thank God we have some clarity.

I would not want to see anybody in this House, friend or foe, go through what I went through. It was not fair, because we had ambiguous legislation. Finally we have a power in this Bill that means we will protect each other for the right reasons. Whether or not we like someone’s politics, it will apply to everybody.

[Geraint Davies]

Is the hon. Gentleman saying it is reasonable for a political party to bus in hundreds of workers and put them in hotels, so long as the agent does not know or authorise it? Is he saying that is a legitimate—

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[Craig Mackinlay]

I thank the House for its forbearance during those troubled years, and I hope Members will support at least that part of the Bill.