Elections Bill

Debate between Jerome Mayhew and Patrick Grady

Report stage
Monday 17th January 2022 Commons Chamber

[Jerome Mayhew]

The right hon. Member for Orkney and Shetland (Mr Carmichael) said that there was too little time for this debate, but those of us who sat on the Bill Committee will not recognise that feeling, because we had days of seemingly interminable debate, much of which has been repeated this evening.

[Patrick Grady]

I am afraid that I completely disagree. I sat on the Bill Committee, which the Government rushed through with two days left. As none of the Back Benchers participated, the entire Committee collapsed. I entirely agree with the right hon. Member for Orkney and Shetland (Mr Carmichael): the way the Bill has been rammed through this House is a complete and utter disgrace.

[Jerome Mayhew]

We will have to agree to disagree on that because there was very lively debate in Committee.

I have made a number of interventions, so I will keep my comments short and on only two points. First, on new clause 1 and voter ID, others have spoken movingly—both in evidence to the Bill Committee and this evening—about the impact of voter fraud and the need to take reasonable steps to minimise it. The first step is voter ID, and I fully support what the Government suggest on photographic ID, but for that to be effective, the second step is to have prosecution where evidence is established that a crime has been committed. Much of the evidence that the Committee heard was frustration that the police or the Electoral Commission did not take allegations of fraud sufficiently seriously and bring them before a tribunal.

That brings me to clause 13, which deals with the Electoral Commission’s assumed power to become a prosecution body in its own right. I am very glad that the Government have taken this opportunity to re-establish the status quo, which should be that the police and the CPS are the relevant prosecuting authorities, in part because of the obvious conflict of interest. The Electoral Commission is the body that provides advice and guidance on electoral law. If it then takes off its regulatory hat and puts on its prosecuting hat, it is marking its own homework, which is a clear conflict of interest.

A wider point about the prosecution of crimes in this country, and one that was picked up by the Law Commission recently, is about a move away from what are described as “private prosecutions”, including by the Post Office—we need only mention the Horizon scandal to see why it is clearly wrong for the Post Office to be its own prosecuting authority—and, in my submission, the Care Quality Commission, which I know the Law Commission is looking at. We should move the power of prosecution and responsibility of prosecution away from those private prosecuting bodies and to the CPS and the police.

There is one message that I would like the Minister to take away and think seriously about. It is all fine and well for us to make the laws in this place, but if they are not taken seriously and investigated seriously by the police, leading to prosecutions where the evidence passes the evidential test, we are on a hiding to nothing.

In much of the evidence that came out in the evidence sessions in Committee, and in the experiences of hon. Members on both sides of the House, there was a huge degree of frustration that allegations of electoral fraud were not taken seriously by the police, who seemed embarrassed and unwilling to get into what was seemingly a political area. Instead, the police should realise that the full implementation of our electoral rules is incredibly important and that the defence of our democracy requires them to take those rules seriously.

Elections Bill (Fifth sitting)

Debate between Jerome Mayhew and Patrick Grady

Committee stage
Wednesday 22nd September 2021 Public Bill Committees

[Jerome Mayhew]

I am grateful to the hon. Gentleman for giving way. He may recall that I questioned the witness on that, and he agreed that the evidence from 8,500 respondents to the IFF review was that, in fact, 98% of the population in general have relevant ID, and that when it came to BAME respondents, it rose to 99%. He also agreed with me that on that basis he was somewhat reassured.

[Patrick Grady]

There we go: that is the benefit of having these evidence sessions, and we should thank, congratulate and treat with respect all the witnesses we heard. I echo the points of order that were made earlier on: I hope we get to have more evidence sessions when it becomes appropriate, so we can hear about the extension to the Bill’s remit that the Government have made.

Elections Bill (Fourth sitting)

Debate between Jerome Mayhew and Patrick Grady

Committee stage
Thursday 16th September 2021 Public Bill Committees

[Jerome Mayhew]

I am very grateful. That is the only thing I wanted to clarify.

[Patrick Grady (Glasgow North) (SNP)]

Q On the provision for the Minister to set a statement for the Electoral Commission, the Government argue, I think, that it is not uncommon for the Government to set a policy framework approved by Parliament for independent regulators. However, I wonder whether you agree that the Electoral Commission is strictly comparable to Ofgem, Ofsted or some other independent regulators, given that it regulates the candidates and the people who are elected to make these laws in the first place. Do you have any reflections on that?

Could you also say a little more on the value or otherwise of a more comprehensive effort to consolidate electoral law? We have a lot of Representation of the People Acts. This is not a representation of the people Bill; it has been called the Elections Bill. I do not know whether there is any legislative or theological difference between the titling of these different Bills and Acts, or the things that they have done over the years. Where do you see the merit in perhaps a stronger effort to consolidate the different pieces of legislation that govern the electoral framework?

Gavin Millar: In relation to the Electoral Commission, we need to start at the beginning, as it were. The Political Parties, Elections and Referendums Act 2000, known in the trade as PPERA, created the Electoral Commission for the first time—it was the first time we had had one in this country—but [Inaudible] an Electoral Commission that does not actually have a role in administering, overseeing and running elections in real time, and that does not have powers to investigate conduct and outcomes, and still less overturn those outcomes. It is important to understand that other countries have equivalent entities with much stronger roles in each of those areas. We are starting from a pretty low base in terms of what the Electoral Commission has been created to do.

As far as I can see, there is no case here for any of the three main changes proposed in the legislation in relation to the Electoral Commission. First, there is the strategy and policy statement, which, as I understand it, is going to tell the regulator what it should and should not be doing. Secondly, the Electoral Commission’s willingness to do what it is told, and its success or otherwise in doing what it is told, will be overseen—one might cynically say “marked”—by the Speaker’s Committee. Thirdly, clause 15 takes away from the Electoral Commission the power to prosecute. I can see no case or justification for any of those measures.

An Electoral Commission should be independent of Government; it should be free from Government influence as a matter of principle, because of its role in a democracy. It should be rather akin to the police or the Crown Prosecution Service in that respect. Its decision making, and indeed its powers to investigate and act, should be framed and guided solely by the public interest and the merits of the evidence before it. Does this need to be investigated? To what extent does it need to be investigated? What has gone wrong? What needs to be done? It should be answerable to Parliament as a whole rather than to a single Committee or a small group of politicians. That seems to me a key and obvious point of principle.

My own view is that the Electoral Commission should have more powers and resources—hopefully under the codified and modernised statutory regime that I have suggested—rather than less, which is what seems to be the aim at the moment, particularly in relation to the removal of the power to prosecute. Why? Well, because it is the only player in the game. It is the only possible resource for dealing with breaches of election law, in its limited area, other than through criminal prosecution and civil litigation.

As far as the former is concerned, the police and prosecutors frankly do not have the resources or expertise to tackle offending under the RPA or PPERA, and I am absolutely certain that much goes uninvestigated and unprosecuted at the moment. That is extremely undesirable in our system. Civil litigation—by candidates, judicial review, election petitions and so on—is costly, cumbersome, time-consuming and very difficult to undertake. All those factors indicate that we need an empowered and funded Electoral Commission to tackle problems as they come up. They are experts and specialists; that is why they are there and should be there.

On the second point you asked about—I will try not to become boring, because I could wax lyrical about this for hours—as you probably know, essentially we have two strands to our election law. We have the Representation of the People Act 1983, which is the primary statute regulating three things: the exercise of the franchise, the conduct of elections and challenges to elections after the event. There are various problems with it, but the main one is that it is the most recent of a long succession of Acts with the same name in the 20th century, and indeed there were earlier equivalents going back into the 19th century. They have often been a political compromise in Parliament, simply enacted by way of consolidation with only minor amendments. What we have ended up with is really an awful lot of 19th-century provisions that have hardly changed in their wording.

On top of that, in that strand of the law—the actual regulation of the administration of elections—there have been many, many more pieces of primary and secondary legislation relating to those three areas of our law since 1983. They either come in statutory instruments or they go into amendments to the RPA, so you get these long lists of amended sections with ZA numbers after the primary number, and it becomes wholly unwieldy and unmanageable.

The Law Commission’s report, where it recommended this, alluded to a problem that surfaced in the 2010 general election. I am sure you all remember that there were queues at polling stations and people were unable to get in and vote when they closed at 10 pm. That is an unresolved issue in our election law. The Law Commission make the point that when Parliament had to correct that to make sure people queuing at that point could get in, 10 different pieces of legislation had to be amended to achieve that one single result. That is how bad it is.

In addition, the second strand is the PPERA strand, which came into play in 2000 with completely new and different areas of election law. In particular, as we know, it included the regulation of national campaign expenditure by political parties and third-party campaigners, as well as permissible donations. Again, accretions and additions to that legislation over the years have made it incredibly complicated.

So what is election law? Well, it is ill-defined, but essentially it is everything surrounding those two huge pieces of legislation and the case law they have thrown up. One of the advantages of consolidation would be to be clear about what needs to be regulated in elections. As I have said, it seems to me that the whole issue of campaigning between long and short campaign periods is now election law. That is just the reality of it in the modern world, just as we have accepted that what goes on on the internet is election law, which we never did before. Modernising and consolidating would give us a much broader definition of election law.

As you point out, in this Bill we have bits relating to each. We have bits relating to PPERA and bits relating to the RPA regime, and it is now simply called the Elections Bill, which is a sort of combination of two strands of our law, and it is a bit of a rag-bag really. I am not saying that some of the things are not desirable—clearly they are—but they are not urgent and they should not be given priority over this much more fundamental issue that needs to be resolved, which is a consolidated and complete electoral code.