Elections Bill

Lord Collins of Highbury Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 10th March 2022 Lords Chamber

Moved by

[Lord Collins of Highbury]

3: Clause 14, page 21, line 15, at end insert—
“(5) This section expires at the end of the period of 12 months beginning with the day on which the Elections Act 2022 is passed.”Member’s explanatory statement
This amendment would prevent a strategy and policy statement more than 12 months after this Act is passed.

[Lord Collins of Highbury (Lab)]

My Lords, on behalf of my noble friend Lady Hayman, I will speak to this amendment while she searches for her glasses.

These are classic Committee amendments in which we try to probe exactly what lies behind these clauses and in particular the clause that we do not agree with that we debated earlier. It is important to address the question that the noble Lord, Lord Butler, asked: what is the question to which this clause gives an answer? It is not clear, and I hope that we can address that with this amendment and the series in the following group to try to elicit some answers.

I was intrigued by the explanation of the noble Baroness, Lady Noakes, that the statement is about the political environment that the commission operates in. That can change rapidly, not least the closer we get to a general election. Now that we do not have fixed-term Parliaments—not that that really determined when a general election could be held—it is not clear what timetable would be involved in this requirement to produce a statement, which the commission “must” take cognisance of. Let us have some answers from the Minister.

I will repeat the question asked by the noble Lord, Lord Butler: what are we trying to solve here? What is the commission not doing that the Government think it should be doing at the moment? It is not clear. I have not heard a single criticism about the failure of the commission to carry out its statutory functions. I have heard political criticisms. The noble Baroness, Lady Fox, is fortunately not in her place so I will say what I want to say. I am prepared to accept that Parliament agreed to a referendum, and Parliament will abide by the result of that referendum and the Government do so, but I am not in favour of referendums. I am in favour of parliamentary democracy. I know who used referendums a lot: Hitler used referendums to store up his power, and so does Putin. It is important to understand what we are talking about here, which is a body that oversees statutory functions in the conduct of elections.

Therefore, with these probing amendments we are seeking to know—despite the detail of what the clause says—how frequently the Minister thinks these statements will be issued. When will the first be issued? Will it be six months before the next general election? Could it disrupt the way that people, political parties and civil society react to the general election? Let us hear it. How often does the Minister think this should be reviewed? The Bill says that this is something we should expect every five years and that it will fall into the cycle of elections, but our political environment is not as stable as that, so there may be other issues that prompt this. I would like some answers to those questions.

Also, what is the Minister’s expectation for how long it will take to produce the statement and the requirement for consultation? What does he expect between the start of the process and its end? What does he think the implications will be not only for the Electoral Commission but for the political process itself and the way political parties operate? It is really important that we get some answers to those questions.

I turn back to the point the noble Baroness, Lady Noakes, raised. I have been intimately involved with the Electoral Commission, certainly for the three-year period I was general secretary of the Labour Party. One of the innovations I thought was really good was that the Electoral Commission has the experience of people with quite detailed knowledge of the electoral process. It has members who are aware of the way political parties operate. It is not working in isolation; it has that experience.

One of my roles was to nominate somebody to the commission. It has a Member of this House, the noble Lord, Lord Gilbert, who is a friend of mine. Even though we are in opposite parties, we have collaborated in better understanding the rules and regulations that operate on political parties. Sadly, the noble Lord, Lord Gilbert, cannot be here this afternoon but I think all members of the Electoral Commission, even though they are nominated—some of them by political parties—take their responsibilities and independence very seriously. I think if he were here the noble Lord, Lord Gilbert, would explain that that was why he did not sign the letter from the Electoral Commission; he is a Member of this House, and it would perhaps have been inappropriate. But that does not stop him taking his responsibilities on the Electoral Commission seriously.

I do not get it; I really do not get what this is all about. What are the Government trying to correct or do? There are mechanisms now, as we heard in the previous debate, about accountability, the Speaker’s Conference and representations. Of course, just as importantly, political parties nominate to the commission—not just the Conservative Party or the Labour Party, but the Lib Dems and the Scottish nationalists have representation on that body. It is independent representation, but they take their statutory responsibilities seriously.

Let us get some answers if we can, not only to the question of the noble Lord, Lord Butler, but also to when the first statement will be produced. How long will it take? How close will it be to the next general election? What impact will such a statement have on the conduct of that general election? These are vital questions, irrespective of a future debate on whether the clause stands part. We need answers to these questions because they will determine our attitude to whole aspects of this Bill. I beg to move.

[Baroness Noakes (Con)]

My Lords, the noble Lord, Lord Collins of Highbury, has ranged rather more widely than the contents of the two amendments in this group, but I respect that Committee is an opportunity for probing detailed aspects. I want to speak only to the second amendment about the length of time you would normally expect a statement to exist.

We have to see these as strategic statements; they are about strategies and policies. Too short a timeframe simply would not work. The presumption in the Bill is five years, which is a reasonable medium-term timeframe for giving some stability, with the option for reviews earlier on various grounds listed in the Bill. I support the general concept of five years being a good starting point, recognising that there can be occasions when this has to be revised. But they should not be picked up and looked at every year or in the run-up to an election, because they should be dealing with issues that have a longer duration.

[Lord Collins of Highbury (Lab)]

Can I just ask the noble Baroness a question? If she looks back over the last 20 years, or even over the period of the Electoral Commission’s existence, what have the gaps between general elections been?

[Baroness Noakes (Con)]

I do not think that is a relevant question because I do not believe the statement is going to be used to try to fine-tune what is done in relation to any particular election. It will be about more strategic things like getting more participation from certain groups in the democratic process and those sorts of issues.

[Lord Collins of Highbury (Lab)]

I am sorry to interrupt but I think this is an important dialogue to have. We bandy around the words, “strategy” and “long-term strategy” but what we have not had from the Government—though the noble Baroness has attempted to give us an answer—is the answer to: what is behind this clause on this statement? Why do we need this statement?

I agree with the noble Baroness that one of the important things, and what this Bill should be about, is how we increase participation. The noble Lord, Lord Hodgson, is unfortunately not here, but this Bill should be about what we do to increase participation in our democratic process. How do we ensure that more people are able to participate and what do we do to take down the barriers that inhibit participation? If the noble Baroness is saying that this statement will be about that, why are those things not in the Bill?

[Baroness Noakes (Con)]

I am going to let my noble friend the Minister answer all this in detail because I am not a government spokesman on this. I was merely offering my opinion on the timeframe. When we get to the stand part debate, I am going to offer some other opinions about why these statements are useful in the context of regulators.

My concern is to see that these statements are strategic in nature and that means not short term in nature. They should be seen in that context. The timeframe of five years is fine for that, but I am going to leave my noble friend the Minister to respond in more detail to the broader questions that the noble Lord has asked.

--- Later in debate ---

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, I am grateful to the noble Lord opposite for tabling these amendments. Let me say that it is entirely proper, legitimate and normal to table probing amendments. There is a limit to which probes will get answers because I am not going to be led into hypothetical sets of circumstances.

We all know that electoral law and practice evolves over time and things happen that are inconceivable at the time we may happen to legislate. Who would have conceived, for example, of the practices seen in Tower Hamlets in those local elections? We have collectively—I think there will be agreement across the House on this—moved to adapt the law and our practices and to respond to change. It is reasonable that there should be some flexibility. I do not wish to get into a detailed challenge—

[Lord Collins of Highbury (Lab)]

I was intimately involved in Tower Hamlets. I was general secretary and suspended the mayor from membership of the party at the time. Can the Minister answer the specific question? The law at the time dealt with abuses in Tower Hamlets; in what way will this statement address any inadequacies? I am not even sure that there were inadequacies in the law because it was able to address the problems in Tower Hamlets.

[Lord True (Con)]

My Lords, I hope the statement and some of the things that the Government suggest might be in it will be considered unexceptionable when we come to it. I hope people will examine it. I was venturing some response to the question of why anyone should consider that anything needed to be said to the Electoral Commission. I was about to preface it—before the noble Lord quite reasonably got up—by saying that I did not want to get into any kind of generalised criticism of the Electoral Commission because one respects its independence and its role.

Since I have mentioned Tower Hamlets, this was a case where the Electoral Commission did not act in a particularly appropriate way. It did not check that the Tower Hamlets First party even had a bank account. It did nothing to tackle the activities of the corrupt mayor. Election judge Mawrey noted in the Tower Hamlets case:

“It can be said that because the Commission rubber-stamped the application for registration it may be inferred that the Commission was satisfied. All one may say, with the greatest of respect for the Commission, that the enquiries into the structures of”—


Tower Hamlets First—

“cannot have been excessively rigorous.”

The election judge was critical in that case.

I am sure that the Electoral Commission has learned lessons from that, and one would hope that this would be the case, and I do not make any imputation or reference to existing members of the Electoral Commission. The Committee on Standards in Public Life said in its report,

“In the course of gathering evidence”—


and this is not me or the Government, this is the committee—

“we heard some affecting personal stories of a small number of MPs and campaigners who have been regulated by the Electoral Commission. Their experiences were clearly extremely difficult and stressful – both personally and professionally – and we think there are changes that can be made to improve the way the Electoral Commission approaches its role.”

We may have differences about how we should proceed in a set of circumstances but, if I am asked if there is any evidence that in the past perhaps not everything was perfect in that world—well, I have just given two examples that are not from the Government. One is from a judge, and the other is from the Committee on Standards in Public Life.

[Lord Collins of Highbury (Lab)]

May I interrupt again? The Minister jumps from the specific to the general and keeps saying that this statement is going to be innocuous. The noble Baroness, Lady Noakes, says it is going to be about five-year plans and longer-term strategies, and then the Minister talks about specific illegal acts and the failure to address some of them. We are jumping around. If there are problems—and this is why I jumped up before—particularly on postal votes, let us put in laws to address them. But we are not talking about new laws and new regulations; we are talking about how the Electoral Commission operates within its statutory functions, and the Government now want to interfere in that. This is the issue that concerns everyone. The Minister jumps from broad, innocuous strategy to specific regulation—very dangerous.

[Lord Stunell (LD)]

I appreciate the Minister giving way. I hope that his response will include a little more about what the Committee on Standards in Public Life recommended as the solution to the problem that the Minister quite rightly drew to our attention, because the solution recommended by the committee to the Government is not included in the Bill, and the solution brought forward by the Government is condemned by the committee.

--- Later in debate ---

For the reasons I have set out above, I urge that the amendments be withdrawn.

[Lord Collins of Highbury (Lab)]

Before the noble Lord sits down, I wish to say that one of the issues that I raised, and why these probing amendments are there, is to ask not only how quickly and regularly the report will be produced, but what the implications are of a report being produced very close to a general election. Does the Minister think that there are any implications to that, and that it may impact on the political process, particularly how political parties operate?

[Lord True (Con)]

When one looks at the areas which are covered in the indicative proposals, I do not think that there are things that would seriously affect the conduct of elections. The Government submit that these are matters which, in the current circumstances, would be of ongoing importance—improving accessibility, increasing participation, combatting foreign interference in UK elections and improving transparency.

[Lord Collins of Highbury (Lab)]

Just on that last point—I keep interrupting, but this is Committee and I think it is important that we get clear answers—if a strategy paper said it is okay to take money from Russian donors, would that not have an implication for a general election? Would it not impact on certain political parties? Maybe even look at its reverse: perhaps certain money from trade unions should not be accepted. The funding of political parties is a critical issue and, if it is in this indicative statement, it will have huge implications for a general election.

[Lord True (Con)]

The permissibility of donations is a matter of the law of the land, and we will be considering the law on political donations later. As the noble Lord will see, the issue is publishing clear and easily accessible information about spending and donations, which is a job done by the Electoral Commission, but it would probably be prudent to look at foreign interference at this time. I think that would be supported across the House. I give you that as an illustrative example.

--- Later in debate ---

[Lord True (Con)]

My Lords, I am sure that any Government’s preferred position would be to consult, but the Government believe there is a need for a contingent power here. If noble Lords object to that, no doubt they will lay down amendments.

[Lord Collins of Highbury (Lab)]

My Lords, this has been an extremely useful exercise. Rather than answers, we have more questions, which I think we will pursue in later debates in terms of not only clause stand part, but some of the other elements of the Bill we need to address. Certainly, if we end up on Report with this clause still in place, we will need to come back with strict and clear amendments, particularly on the fundamental issue of consultation. Despite a very useful debate, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Moved by

[Lord Collins of Highbury]

4: Clause 14, page 21, line 15, at end insert—
“(5) A statement designated under this section must not be published until a draft statement has been approved by a resolution of each House of Parliament.”Member’s explanatory statement
This probing amendment would mean that a draft strategy and policy statement must be approved by both Houses of Parliament.

[Lord Collins of Highbury (Lab)]

It is me again. Here, we are trying to better understand what the Minister means when he repeats reassuring paragraphs, not least, “This is not the Government imposing on the Electoral Commission; this statement will be subject to Parliament, and there will be consultation”—although, there will be circumstances where there will not be consultation, which is even more worrying.

We are trying to probe exactly how engagement and approval of both Houses of Parliament will work. This is important, because in the other place the majority rules, which means there is sometimes a lack of scrutiny and attention to detail. The Government have a majority and the Executive, if they take an opinion, try to force their view through the House of Commons, naturally, by the function of the majority party. So, scrutiny gets squeezed. This was one of the interesting things about the scrutiny the Commons did on this Bill in Committee. It was done in two and half hours. There were some really important clauses on funding that got no consideration at all, which is why the role of this unelected House—again, the noble Baroness, Lady Fox, is not in her place—is so vital. Our job is to scrutinise, to ensure that when legislation is passed by the majority in the other place, it is fit for purpose, does what it is intended to do and does not have other implications.

These probing amendments try to push the Government into giving clearer answers about how Parliament is going to engage in the process of this statement. We are also seeking a clear position on the role of this House in scrutinising and ensuring that the majority party of the Executive is not able to force things through, which can have huge implications. I was going to say it can have huge implications for the Opposition parties, but of course, it may also do so for the majority of the votes cast in our democratic process.

I come back to the fundamental point that many noble Lords have mentioned. Changes to our electoral system should be made by consent and in a way that all political parties can accept—these are the rules, and we are all going to follow them and abide by them. As soon as an Executive start pushing things through that favour their party and cause damage to the other parties, that is a very dangerous road to go down. We are trying to ensure through these amendments that changes in statements are not just written and approved by the Executive and forced through by the Whips of their party, but are subject to proper involvement, engagement, consultation and approval by Parliament, because we are a parliamentary democracy. I beg to move.

[Baroness Noakes (Con)]

My Lords, I am going to start by banking an agreement with the noble Lord, Lord Collins of Highbury. I completely agree, as I think the whole House does, that the quality of scrutiny in the other place underlines the importance of what happens in your Lordships’ House. Having banked that, I could not understand why these amendments have been tabled. Amendment 4 asks for the strategic and policy statement to be approved in draft by each House—but that is exactly what proposed new Section 4C calls for. It calls for the Secretary of State to lay a draft before Parliament that cannot be designated until it has been approved by each House of Parliament. These are standard procedures in each House, including, importantly, your Lordships’ House. I understand why the noble Lord might want to seek a way of saying that we want more than the normal procedures that apply to secondary legislation, but these amendments do not get any closer to that. They simply duplicate in a different place what is already in the Bill, both for the initial statement and for the revised statements.

[Lord Collins of Highbury (Lab)]

I accept the point the noble Baroness is making, but I think everyone in the House is always concerned about the way in which secondary legislation is implemented. Even though we have the opportunity to scrutinise it, it is extremely difficult ever to change it; and although we have certain powers in secondary legislation, it is not clear that they will apply to this statement. I am not very keen on using fatal motions, for example. Is that going to be an opportunity for this House? That is why we are asking these questions. These are probing amendments that do not simply say that this is the position we want to see. However, the principle of proper parliamentary engagement is one we want to ensure, and doing so might mitigate some of the aspects of this proposal.

[Baroness Noakes (Con)]

I completely understand that point, but the noble Lord is raising something much broader, which goes beyond the existing procedures we have for handling secondary legislation. I agree with the noble Lord that we should have a full and proper debate about whether there should be alternatives to the nuclear option. However, that is not a debate for this Bill.

--- Later in debate ---

[Lord True (Con)]

My Lords, again, I am not going to be led into a wide and potentially very interesting debate on how your Lordships would behave in regard to any legislation, including primary legislation. I draw attention to what is before the Committee, which is that your Lordships would have to pass an affirmative resolution, and that does give your Lordships a power in law.

[Lord Collins of Highbury (Lab)]

The question has been asked better than I was trying to put it. The noble Baroness, Lady Noakes, acknowledged that in this House we are extremely reluctant to use the nuclear option, because we are not elected; the elected House has primacy. But we are not talking about legislation in the normal sense of the word—we are talking about a strategy statement that will influence the operation of a body that oversees the conduct of our elections, which could be issued quite close to a general election and might impede the operation of political parties. Constitutionally, I am always very reluctant for this unelected House to challenge the elected House on legislation, but I think we need to be clear and the Minister has to answer this question. This is very different and that is why we are so concerned about it: it concerns the way our general elections are conducted. If this House thinks that a statement is going to impinge on the way our political parties are able to operate, does the Minister agree that we should have the authority to reject it?

[Lord True (Con)]

My Lords, the noble Lord confuses various things. The constitutional position is as I set out. With the greatest respect, I say to him that the precise proposition that he has put before the Committee in this amendment is that the House should have the opportunity to reject. I do not know about standing on various legs, but he is logically opposing his own amendment. For our part, we think—

[Lord Collins of Highbury (Lab)]

Let us be clear about this. We have had the Leader of this House challenge this House when it has simply sent something back, let alone rejected it. Then we have a Prime Minister who says, “Well, we’re going to put loads more Peers in the House.” This is a separate issue. It is not a constitutional issue about the rights of the House of Commons; it is about a strategy statement for the Electoral Commission, which has statutory duties to be independent. I can see circumstances where a statement is produced, maybe even as close as four months prior to a general election, that could have severe implications for the conduct of political parties in that election. In those circumstances, even though I am in general against this House rejecting the democratic will of the House of Commons, this Bill imposes a duty on this House to consider whether it needs to operate the powers that it has.

[Lord True (Con)]

I note what the noble Lord opposite says. I believe that I have set out the correct constitutional position. If he wishes to persuade your Lordships’ House to act differently from the way it normally operates, it is up to him to make that argument and it is his privilege at the time, but that is not the argument before the Committee. I do not believe that the statement or the illustrative example of a statement justifies the kind of language which has been used about it today. We will have a debate on clause stand part shortly, but since the effect of the amendment is simply to replicate what is already in the Bill, I urge the noble Lord to withdraw it.

[Lord True (Con)]

My Lords, any statement has to be treated in the light in which Parliament enacts statements to be approved, and that is by affirmative resolution.

[Lord Collins of Highbury (Lab)]

Once again, my Lords, the debate has generated more areas of concern than it has put at ease. Undoubtedly, we will need to think about coming back to some of these issues, whatever happens in the debate on whether the clause should stand part. At this stage, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

--- Later in debate ---

Moved by

[Lord Collins of Highbury]

7: Clause 14, page 22, line 18, at end insert—
“(f) civil society groups.”Member’s explanatory statement
This amendment would mean that the Secretary of State must consult civil society groups on the draft of the strategy and policy statement.

[Lord Collins of Highbury (Lab)]

I want to preface my remarks about these amendments, because they relate to a fundamental ingredient of our democratic life and our democratic society. I have often spoken in my role as shadow Minister for Foreign Affairs about the importance of civil society. The noble Lord, Lord Ahmad, who has responsibility for human rights, frequently hears this and responds incredibly positively. There are many societies and countries where the guarantors of human rights are not Parliaments and parliamentarians but civil society, faith groups, women’s groups and trade unions. They are the important ingredients of a thriving democratic society. If we take them away, we do not have such a society; we end up with a society where elections may be held every five years but with a president like President Putin. These are the things that we have to be concerned about.

--- Later in debate ---

[Lord True (Con)]

My Lords, that was not a correct characterisation. I meant to say, “the Speaker’s Committee on the Electoral Commission”, which is a cross-party representation of MPs. If I misspoke, I apologise.

[Lord Collins of Highbury (Lab)]

I thank the noble Lord for his response to this debate. Consultation will be an important part of how we proceed on this and an issue which we will keep emphasising and reiterating. However, in the light of the comments, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

--- Later in debate ---

[Lord Hayward (Con)]

The noble Lord intervenes at a highly apposite time. I said at the start of my contribution that I was conflicted. All I wanted to do was set the record straight in relation to the Electoral Commission as I and others have experienced it. A number of noble Lords have said that these clauses do not solve the problems that might arise from any behaviour of the Electoral Commission. That is why I am conflicted. I do not believe these clauses solve the problem. I believe there are problems with the Electoral Commission and that Mr Pullinger and his new organisation will tackle them, but I do not believe that these clauses solve the problem.

The noble and learned Lord, Lord Judge, regularly reminds us of Henry VIII clauses. I regard this as a Henry II clause: “Who will rid me of this troublesome priest?”—or, in this case, this troublesome regulatory body. I am sorry, but I cannot read those clauses without thinking that in some malevolent hands they will be misinterpreted by some Government or another.

I was an electoral observer in 2018 in a country I know well because I completed the whole of my university career there—Zimbabwe. I met the Zimbabwe Electoral Commission and challenged it on the way it operated that election. I would like to be in a position to suggest that it use and operate our law. Could I honestly do that with these two clauses as they stand?

I come back to the position on which I opened. I am conflicted. I would like to see what the noble Lord, Lord Scriven, identified: the clear operation of an electoral commission that produces independent, fair, free elections. That I could commend to the Zimbabwe Electoral Commission. I hope that, when it comes back, this legislation will be something that I could recommend. As it stands, with these clauses, I could not.

[Lord Collins of Highbury (Lab)]

Just for the record, I am not Lord Kennedy.

[Lord Hayward (Con)]

I am very conscious of that. I did not necessarily say that the Lords to whom I was referring were present in the Chamber; I gesticulated towards the Bench opposite. I hope I did not offend the noble Lord in saying that.

--- Later in debate ---

[Lord True (Con)]

I accept what the noble Lord said on that point—and, indeed, what the noble Viscount has said. What I would say is, first, that a Minister at the Dispatch Box should not criticise either a former or a present President of the United States, or any members of the parties that support them. We all make and contribute to the perceptions that people have, and one problem is with the risk of importing the rhetoric of the USA about voter suppression, fair voting or whatever, when actually every opinion poll in the United States, including among African Americans, supports the principle of voter identification. If we import that rhetoric into our public affairs, we ourselves potentially contribute to the very kind of perception that I wish to avoid, and I know that the noble Viscount also does—although he has not been in this House that long, I know that his integrity is resounding. All of us who want to avoid that ought to watch our own language in this respect. That is the only thing that I would say in response. We will debate this later, but the Government are seeking to suppress nobody’s vote. We wish to maximise participation in elections.

[Lord Collins of Highbury (Lab)]

I hope that the Minister can answer the direct point from the noble Lord, Lord Hayward. Although the noble Lord criticised the operation of the Electoral Commission and spoke about how it might improve, he referenced something fundamental. He spoke about his experience in a country where an electoral commission operated under the direction of a Government who hindered and harmed the opposition. Does the Minister not think that, when we complain to that Government about that electoral commission, today’s action and his speech today will inhibit our ability to criticise that Government?

[Lord True (Con)]

Absolutely not—and I very much hope not. I come to your Lordships’ House to listen to your Lordships’ House, and I hope every government Minister does just the same. The direct answer to the noble Lord opposite is the one that I gave in my speech—that this Government do not seek to direct the Electoral Commission, and nothing in the Bill contains a power of direction.