Elections Bill

Lord Hodgson of Astley Abbotts Excerpts

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

I will briefly say a word on Amendment 30B in the name of the noble Lord, Lord Collins: £20 is a very out-of-date figure for an election agent to have to submit a formal voucher on. I recall as an agent many years ago when the limit was £2, and before submitting the return of election expenses I had to drive round various places to collect a receipt or a voucher for £2 to meet the very tight deadline. Oh, there is a phone ringing; my apologies, that is someone calling about the receipts that are overdue from some previous election. I think I took part in debates that increased the limit from £2 to £20 and thought that was my triumph as a former agent—the agents fought back and got the limit uprated. It should be uprated because there is no actual increase in spending in the proposition, simply a realistic increase in the limit for which you have to produce a voucher. This reduces paperwork, bureaucracy and time so that people can get on with their real jobs.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I just want to intervene, not about the substance of the matter we are debating but about the process. We have two very interesting parallel amendments which have what one might call different routes to market. The noble Baroness, Lady Hayman, said she did not really mind which was followed. I think she should worry, for reasons I shall explain. We tend to pass by—too easily, in my view—guidance, statutory codes, as just referred to by the noble Lord, Lord Rennard, regulations and rules. Who devises them, who decides what they are, who implements them and who enforces them? I think it is important that, at some point in the debate on the Bill, we take just a moment to think about the different ways this cat can be skinned.

In the debate on Clauses 14 and 15 in the last day in Committee, the noble and learned Lord, Lord Judge, who is not in his place, led the charge, assisted by several other noble Lords from around the House, to give my noble friend the Minister a kicking. I think the idea behind those speakers was to buttress, protect and safeguard the independence of the Electoral Commission. The noble Lord, Lord Stunell, referred to this earlier. Well, up to a point. The noble and learned Lord, Lord Judge, and I are absolutely as one about the need to improve the way we scrutinise secondary legislation in this country; it is clearly deficient and no longer fit for purpose.

The Delegated Powers and Regulatory Reform Committee, under my noble friend Lord Blencathra and now under my noble friend Lord McLoughlin, produced a report at the end of last year about the democratic deficit. The Secondary Legislation Scrutiny Committee, which I chair, produced a report on government by diktat. My noble friend the Minister will be fed up with me going on about this, but we are going to go on and on and talk to our colleagues in the Commons until we begin to get a better balance in the way we handle these things. That is, of course, a debate for another day, but in those two reports, we draw attention to the danger of what one might call tertiary legislation—that is, rules and regulations made by bodies that have little or no democratic control over their self-standing and no parliamentary control. It is important that I used the phrase parliamentary control, not government control. I am talking about control by the legislature, not by the Executive.

What I am saying is in no way a criticism of the Electoral Commission, but times change, commission members change just as Ministers change, and I am not convinced, as a matter of principle, that the Electoral Commission should be given too much independence in devising and implementing processes that go to the heart of our democratic system. We may feel that the system for scrutinising secondary legislation is not good enough, but we do at least have a chance to debate it and talk about it in public, here in your Lordships’ House and in the House of Commons. We cannot amend it, and I know that is a weakness, but we do provide a focal point for people who wish to comment on it, raise issues and express their support for it, discontent with it or opposition to it.

I see the noble Baroness, Lady Bennett of Manor Castle, in her place. The SLSC was very unhappy about some aspects of the procedure the Government followed about GMO and the new regulations, and therefore last night there was a lengthy debate. Could the regulations be amended? No, they could not, but there was a great deal of opportunity for people to express their concerns about that particular regulation. If the Electoral Commission produces a code, ex cathedra, there is no point at which that debate can take place. People can complain about it or write in, but there is no forum where Parliament—again, I say Parliament, both Houses of Parliament—can say its piece about whether it is fit for purpose. After all, it is Parliament that will be most concerned with and most expert in what is being proposed.

I favour Amendment 25, moved by the noble Baroness, Lady Hayman, which says it should go through the Secretary of State. I assume that when she revises her amendment, she will say “by regulation”: he or she is not just going to write it, it will be by regulation that it would come into force. I say to the noble Lord, Lord Rennard, that if he were to amend his amendment to say that the Electoral Commission has to produce a code which will become a statutory code, I think that would also serve the purpose. At present, we need to be very clear that the Electoral Commission is not the answer to everything. There is a need for the democratic process to have some input into the way this is all moving forward, or else we will have a situation where a body may be moving away from the central ethos of what the two Houses of Parliament believe is the right way to conduct things.

[Lord Wallace of Saltaire (LD)]

This is an important principle. The noble Lord and I have spent some time looking at the Charity Commission, on which he is much more expert than I am. I used to be able to quote CC9 and other bits of Charity Commission guidance by heart when I was a trustee of a charity. Does he think that the principle he is enunciating should apply to most of these commission regulatory bodies, or is the Electoral Commission a special case?

[Lord Hodgson of Astley Abbotts (Con)]

I think the Electoral Commission is a special case because we are talking about an elections Bill, but it goes wider than that. My noble friend Lord Blencathra is hot on this. He has a list of bodies that are, as he would say, running too free, but the Electoral Commission is a special case because of the nature of the Bill we are discussing. A subsidiary question is, do we need more codes elsewhere? I have some amendments down later on, which we shall get to on Thursday, which will provide a way of clarifying and giving third-party campaigners some security and safety about what they are doing— I think that is much more important. However, that is a discussion for Thursday.

My last point is to the noble Lord, Lord Collins, about his Amendment 30B. We have said again and again that we need to have our election law in one place. The fact we are having to discuss RPA 1983 in connection with this Bill in 2022 shows how urgent this is and how the points made across the Committee need to be taken on board by the Government, who at some point need to find time to pull this all together.

[Lord Stunell (LD)]

My Lords, I may be able to join up some of the dots in what has just been said, particularly to draw out the position of the Committee on Standards in Public Life. The noble Baroness, Lady Hayman of Ullock, said it would be really useful to know which of the CSPL recommendations the Government believed—or thought or imagined—they had ticked off: which boxes they have ticked and which they have not. Maybe the Minister in reply could undertake to write us a letter which sets out the recommendations and whether the Government have, have not or have partly fitted them into the Bill; I think that would be to the benefit of the debate. Of course, the very first recommendation of the CSPL in that report is that there should be a comprehensive Bill on all election law, as set out by the Law Commission. I know the Minister, in replying at Second Reading, explained that it was all too busy and too complex, so recommendation 1 is not going to happen at this time, but not doing recommendation 1 is causing problems with a whole lot of other things that are happening.

In defence of Amendment 25A, proposed by my noble friend Lord Rennard, the current position is as it was when the Electoral Commission drew up guidance in 2020. It submitted it to the Cabinet Office so that it could be published as a statutory instrument and, whatever the defects of statutory instruments, its guidance would in fact have come before the House. So, there is a downstream process—it may not be very effective, but it does to some extent, I hope, tick that particular box.

--- Later in debate ---

[Lord True (Con)]

My Lords, again I welcome this short debate. It was very good to hear from my noble friend Lord Hodgson of Astley Abbotts. I was not angry about what he said. I agreed with some of his points, and they were certainly points for reflection. There was a point in his speech when I wished he had been the fifth cavalry in the last debate that we had on the Electoral Commission, rather than the 55th, but the 55th cavalry is welcome. I will come on to the question of who is responsible in relation to regulation in a minute. The debate ranged widely, and while the issue of tertiary law, as he put it, and how that is considered, was a little wide of it, I acknowledge it as an important point of reflection.

The Government responded to the CSPL’s report in September 2021. The Bill already contains measures which closely relate to its recommendations. I will look at some of the material which is theoretically before us today, depending on progress. The new requirement for political parties to declare assets and liabilities over £500 on registration was recommendation 10 of the CSPL report. Another recommendation was the restriction of third-party campaigning to UK-based campaigners. These things are set out in Clauses 21 and 24. The Government intend to look at all recommendations from the CSPL, alongside recommendations set out in similar reports, as part of further work on the regulatory framework during and beyond the Bill. I will certainly take those recommendations seriously.

These amendments relate to the clarification of the law on notional expenditure. Some of the ground was covered in previous groups but I thank the noble Baroness, Lady Hayman, and the noble Lord, Lord Rennard, for their points urging timely publication of new guidance. Irrespective of whether we believe that the law needs clarification or, as is the contention which I have heard on the other side, that it does not, clearly publication of new guidance should be timely. It is the responsibility of the Electoral Commission to provide that guidance to parties and people standing in elections. Clause 19(1) amends the provision in electoral law to provide that the Electoral Commission may prepare guidance on election expenses for candidates. These amendments are to make it clear that the guidance can cover the application of the rules in relation to expenses incurred, including notional expenditure.

I cannot give a specific date, as was requested in both elections, but I assure the House that it must be locked into the process of implementation of the legislation. The responsibility sits with the commission, and therefore technically, siding a little in the debate, I think that the Government would oppose the noble Baroness’s idea of giving the duty to the Secretary of State. However, whoever it is given to, I wish to see guidance as quickly as possible. The Government have confidence that the commission will act promptly. We intend to commence the provisions in this Bill on a staggered basis and we will closely engage the Electoral Commission to ensure the readiness of new guidance at every stage.

[Lord Hodgson of Astley Abbotts (Con)]

When my noble friend says that he has confidence in the Electoral Commission, which I understand, will this be a statutory code, or will it just be guidance, without any statutory backing?

[Lord True (Con)]

My Lords, there is reference in Clause 19(1) to a duty to provide guidance. I cannot give all the specific details, but it is clearly the intention of the Government that it be covered in that way.

I understand the point made by the noble Lord, Lord Collins, on increasing the threshold at which an election agent is required to approve expenses. The noble Lord is always very thoughtful on these matters. Indeed, the noble Lord, Lord Rennard, referred to the days when £2 was the limit. Clause 20 amends Section 73 of the Representation of the People Act to allow other persons to pay expenses that they have incurred rather than the election agent. This will provide clarity to third parties who have been authorised by a candidate or agent to promote them. The Government are supportive in principle. I can tell the noble Lord, Lord Collins, of increasing relevant values by the value of inflation to ensure that they remain as Parliament originally intended. We raised candidate spending limits for local elections in line with inflation before the May 2021 elections, and we intend to review party and candidate spending limits for all other polls—obviously not those within the legislative competence of the Welsh and Scottish Governments—next year, with a view to uprating them in line with inflation since they were originally set. This should create a baseline for regular and consistent reviews of such limits in future.

The noble Lord has raised an important point. Obviously, consideration will have to be given at each stage to ensure that the implications of changing a particular figure are understood. We welcome further discussion on this point, in the spirit which he suggests, but the Government’s intention is that those levels be reviewed next year. For these reasons, I urge that the amendment be withdrawn.