Elections Bill

Lord Hodgson of Astley Abbotts Excerpts

Report stage
Monday 25th April 2022 Lords Chamber

[Lord Stunell (LD)]

My Lords—

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, it is difficult when—

[Lord Stunell (LD)]

I thank the noble Lord for giving me a turn.

The case for removing these two clauses has been very powerfully made already and my point is a very simple one which will not take very long. These two clauses, if they remain in the Bill, will put in the hands of a successor Government the essential tools to immediately deliver the very first task set out in the autocrat’s playbook, which is, when you take power, make sure you keep it. In the UK, that means making sure that you have the Electoral Commission under your thumb.

I have only one question for the Minister. Taking him fully at his word that this Government would never in a million years use these powers to distort the actions of the Electoral Commission or to raise the bar for opposition candidates or opposition parties in any future election, what happens when the million years is up? What happens when another Government, less imbued with the deep ethical principles so clearly exhibited by the present Administration, less scrupulous about fair play and with less commitment to truth and accuracy, take office? Can the Minister say to your Lordships, in all honesty, that it will be safe to put these clauses on the statute book, just waiting for that ruthless successor Government to exploit? It could be an ultra-left Government with little regard for constitutional conventions, balancing the books or protecting industry from red tape, and perhaps ready to repudiate international treaties, undermining all those Conservative values that the Minister espouses so much.

Does the Minister think it is safe to leave these clauses in the Bill? I have seen the noble Lord in action. I do not believe that he is either so naive or so short-sighted as to believe it would be safe to do so, and it would not be in the long-term interests of the Conservative Party for these clauses to be in the Bill. I, my noble friends and other noble Lords all around the House have powerfully expressed the view that we are ready to help him get off the hook and to take these two clauses out of the Bill.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I apologise to the noble Lord, Lord Stunell, and to the House, for having pushed him so rudely.

When one sees the way the tide of opinion is flowing strongly, it is very easy to think that it is best to keep one’s head down and not provide a cautionary word about being careful what we wish for in taking these amendments through—should the House so decide. I note and appreciate the concerns expressed in powerful speeches this afternoon. These are replicated in the briefing from the Electoral Commission referred to by the noble Lord, Lord Grocott. Several letters in the correspondence columns of the broadsheets have carried an equivalent message.

I also recognise that the drafting of parts of these clauses can best be described as uncompromising. The noble and learned Lord, Lord Judge, referred to this, though I think he was slightly dismissive about the consultation processes provided for in Clause 15, in new Sections 4C and 4D. He pointed out that the procedures for scrutinising secondary legislation are proving increasingly inadequate and ineffective for modern conditions. He knows that I agree with him. I am pleased to be able to tell him and the House that the Secondary Legislation Scrutiny Committee, which I chair, will publish a further end of term report at the end of this week. This will give grist to his mill—and indeed to mine.

Among the concerns raised is the use of what can be described as tertiary legislation. I spoke to the noble and learned Lord in advance of this debate, so he knows broadly what I shall say about creating bodies over which there is absolutely no parliamentary control but which, none the less, have powers that concern some of the most fundamental aspects of our society. One recent example is the College of Policing, an independent body able to introduce regulations and codes that affect every one of us.

The noble and learned Lord, Lord Judge, and my noble friend Lord Blencathra have made common cause in attacking this. I entirely support them. To come to the point, I am not yet convinced that, if these two amendments were agreed, we would not be creating another body equivalent to the College of Policing, but this time for electoral purposes—an equally important part of our national life.

Am I enthusiastic about Clauses 15 and 16? Not at all, but I recognise that there is some parliamentary involvement and approval in this process. If these amendments were accepted, the Electoral Commission—with all the criticisms that have been made of it, fairly or unfairly—would float free from any even minor scrutiny or accountability. In my view, this would be even less desirable.

[Baroness Noakes (Con)]

My Lords, it is a pleasure to follow my noble friend Lord Hodgson. I wish him a very happy birthday.

--- Later in debate ---

Moved by

[Lord Hodgson of Astley Abbotts]

49: Clause 20, page 31, line 20, leave out “or paragraph 3(7) of Schedule 8A”
Member’s explanatory statement
This amendment, which leaves out the reference to an order under paragraph 3(7) of Schedule 8A to the Political Parties, Elections and Referendums Act 2000 (in the inserted paragraph (aa) for section 156(3) of that Act), is consequential on the new Clause that Lord Hodgson is seeking to insert after Clause 27.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I shall also speak to Amendments 54 and 56. Amendments 49 and 54 are paving amendments, and the bulk of what I want to say relates to Amendment 56.

The role of a Back-Bencher moving amendments is to spend a great deal of one’s time pushing on doors that are firmly shut and remain so. But every now and then a door opens and one staggers into the room off-balance with surprise, and so it is today. It is therefore right that I should begin by thanking the Minister and the Bill team for the way they have responded to Amendment 54, which I tabled in Committee and has now expanded to this group of amendments. I also thank the noble Lord, Lord Blunkett, who is not in his place, for again putting his name to an amendment in this revised group.

I do not intend to repeat my remarks except to say that the amendment is intended to address head-on the so-called chilling effect on third-party campaigning resulting from the provisions of the 2014 Act. At the heart of that problem is what is known as the “intent test”. The wording in the Act catches for regulatory purpose any activity that

“can reasonably be regarded as intended to promote or procure electoral success at any relevant election”.

The decision on which actions or activities cross the line lies with the Electoral Commission. I make it clear that the commission has gone out of its way since the passage of the 2014 Act to reassure third-party campaigners about how it intends to implement these provisions, but we are here today scrutinising primary legislation and we want to future-proof it as far as possible. That includes future-proofing it from a future Electoral Commission that may adopt a less collaborative approach than the current one.

The answer is to introduce a series of statutory codes that have the following advantages: first, they require the Electoral Commission to undertake the intellectual heavy lifting needed to produce a code giving clarity and certainty to third-party campaigners; secondly, they give Parliament the opportunity to scrutinise and approve the initial codes and any revisions thereto; and, thirdly, they give third-party campaigners the knowledge that compliance with the code provides a statutory defence.

--- Later in debate ---

Moved by

[Lord Hodgson of Astley Abbotts]

54: Clause 25, page 35, leave out lines 27 to 35
Member’s explanatory statement
This amendment, to leave out subsection (6) of the inserted section 89A of the Political Parties, Elections and Referendums Act 2000, is consequential on the new Clause that Lord Hodgson is seeking to insert after Clause 27.

--- Later in debate ---

Moved by

[Lord Hodgson of Astley Abbotts]

56: After Clause 27, insert the following new Clause—
“Code of practice on controls relating to third parties
(1) After section 100 of PPERA insert—“Code of practice relating to controlled expenditure100A Code of practice on controlled expenditure(1) The Commission must prepare a code of practice about the operation of this Part in relation to a reserved regulated period.(2) The code must in particular set out—(a) guidance on the kinds of expenses which do, or do not, fall within Part 1 of Schedule 8A (qualifying expenses);(b) guidance on determining whether the condition in section 85(2)(b) (promoting or procuring electoral success) is met in relation to expenditure;(c) guidance on determining whether anything provided to or for the use of a third party falls to be dealt with in accordance with section 86 (notional controlled expenditure) or with section 95 and Schedule 11 (donations);(d) examples of when expenditure falls to be dealt with in accordance with section 94(6) (expenditure of a third party in pursuance of an arrangement with one or more other third parties);(e) guidance about the operation of sections 94D to 94H (targeted controlled expenditure).(3) The Commission may from time to time revise the code.(4) In exercising their functions under this Part, the Commission must have regard to the code.(5) It is a defence for a third party charged with an offence under any provision of this Part, where the offence relates to expenditure incurred or treated as incurred by a third party during a reserved regulated period, to show—(a) that the code, in the form for the time being issued under section 100B, was complied with by the third party in determining whether the expenditure is controlled expenditure for the purposes of this Part, and(b) that the offence would not have been committed on the basis of the controlled expenditure as determined in accordance with the code.(6) In this section, “reserved regulated period” means a period in relation to which any limit is imposed by paragraph 3, 7, 9, 10 or 11 of Schedule 10 (regulated periods for parliamentary general elections or general elections to the Northern Ireland Assembly).(7) Section 100B sets out consultation and procedural requirements relating to the code or any revised code.100B Code of practice: consultation and procedural requirements(1) The Commission must consult the following on a draft of a code under section 100A—(a) the Speaker’s Committee;(b) the Levelling Up, Housing and Communities Committee;(c) such other persons as the Commission consider appropriate.(2) After the Commission have carried out the consultation required by subsection (1), they must—(a) make whatever modifications to the draft code the Commission consider necessary in light of responses to the consultation, and(b) submit the draft to the Secretary of State for approval by the Secretary of State.(3) The Secretary of State may approve a draft code either without modifications or with such modifications as the Secretary of State may determine. (4) Once the Secretary of State has approved a draft code, the Secretary of State must lay before each House of Parliament a copy of the draft, whether—(a) in its original form, or(b) in a form which incorporates any modifications determined under subsection (3).(5) If the draft code incorporates any such modifications, the Secretary of State must at the same time lay before each House a statement of the Secretary of State’s reasons for making them.(6) If, within the 40-day period, either House resolves not to approve the draft, the Secretary of State must take no further steps in relation to the draft code.(7) Subsection (6) does not prevent a new draft code from being laid before Parliament.(8) If no resolution of the kind mentioned in subsection (6) is made within the 40-day period—(a) the Secretary of State must issue the code in the form of the draft laid before Parliament,(b) the Commission must arrange for the code to be published in such manner as they consider appropriate, and(c) the code comes into force on such day as the Secretary of State may by order appoint.(9) References in this section (other than in subsection (1)) to a code or draft code include a revised code or draft revised code.(10) In this section, “the 40-day period”, in relation to a draft code, means—(a) if the draft is laid before one House on a day later than the day on which it is laid before the other House, the period of 40 days beginning with the later of the two days, and(b) in any other case, the period of 40 days beginning with the day on which the draft is laid before each House, no account being taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.(11) If the name of the Levelling Up, Housing and Communities Committee is changed, the reference in subsection (1)(b) to that Committee is to be read (subject to subsection (12)) as a reference to the Committee by its new name.(12) If the functions of the Levelling Up, Housing and Communities Committee at the passing of this Act with respect to electoral matters (or functions corresponding substantially to such matters) become functions of a different committee of the House of Commons, the reference in subsection (1)(b) to that Committee is to be read as a reference to the committee which for the time being has those functions.”(2) In section 156 of PPERA (orders and regulations), in subsection (3), before paragraph (a) insert—“(za) an order under section 100B(8);”.(3) In Schedule 8A to PPERA (controlled expenditure: qualifying expenses), in paragraph 3, after sub-paragraph (10) insert— “(11) This paragraph does not apply in relation to expenses incurred during a period in relation to which any limit is imposed by paragraph 3, 7, 9, 10 or 11 of Schedule 10 (regulated periods for parliamentary general elections or general elections to the Northern Ireland Assembly) (see sections 100A and 100B as regards expenses incurred during such a period).””Member’s explanatory statement
This amendment would require the Electoral Commission to publish a code of practice on the operation of Part 6 of the Political Parties, Elections and Referendums Act 2000 (which deals with controlled expenditure of third parties). The code of practice would not apply for the purposes of elections to the Scottish Parliament or Senedd Cymru.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, I rise to move Amendment 58 and speak to Amendments 60, 61, 62 and 65. The amendments in my name in this group closely resemble those I tabled in Committee and that I spoke to comprehensively then. They all relate to digital election campaign content, and I will not repeat the arguments I made for them at any length today. I am grateful to the noble Lords, Lord True and Lord Parkinson, the Bill team and officials from DCMS and DLUHC for meeting with me after Committee, and for what could perhaps be called a moderately enlightening discussion.

Through these amendments, I have been pursuing four aspects of digital campaigning. First, clear guidance on digital imprints is represented by Amendment 58. I have been assured that the Scottish provisions in law—and hence their guidance—are not nearly as prescriptive as those set out in the Bill. I hope that the Minister will give his assurance that the current interpretation of the Bill means that statutory guidance from the Electoral Commission—when it comes forward—will require the imprint in almost every circumstance to be on the image or post, unlike in Scotland. It is really only on platforms such as Twitter, where there is a character limit, that it can be considered not to be practicable to put the full imprint. In addition, I hope he will confirm there will be an expectation that the forwarding of posts will require either the full original imprint to be included or a new imprint to be placed on the material. There will also, I understand, be rules put in place for when and how long material must be retained for inspection.

Secondly, banning foreign actors is sought by Amendment 61. The noble Baroness, Lady Scott, and the noble Lord, Lord True, prayed in aid the new £700 limit and the imprint requirements at our meeting at Committee stage, but neither of them addressed the loopholes which will still exist where multiple identities can be created. This is where both Ministers’ statements were inadequate. The new amendment no longer covers British overseas electors, so I hope the Ministers come up with better assurances in this area. There is some consolation in the provision to review the operation of the Bill, but it is important at this stage—at this stage, not later—to take a view whether they are sufficiently watertight as regards foreign actors. This is an area where the Intelligence and Security Committee and the Committee on Standards in Public Life advocated much stronger controls.

Thirdly, Amendment 62 would require promoters to establish advert libraries for digital campaign adverts placed, while Amendment 60 would require detailed information about expenditure on digital campaign material. Here, the main government argument seems to be that the social media platforms that take political advertising—i.e. not Twitter—are keeping libraries already and are different in character, so it would be inappropriate to have a one-size-fits-all regulation. But at the same time, the noble Lord, Lord True, sought to assure me that several important recommendations of the Committee on Standards in Public Life and the Electoral Commission, including those relating to advert libraries and more detailed information on invoices, are still under consideration by the Government. Given the timing of the introduction of this Elections Bill, surely it is high time for the Government to have made a clear decision. What is the state of play here, in terms of a decision having been made on those recommendations?

The fourth area is that of misinformation and disinformation, starting with my Amendment 65 to criminalise false statements about election integrity, which is designed to see what direction the Government are planning to take. As I outlined in Committee, a whole host of Select Committees and the Committee on Standards in Public Life have made recommendations in this area. This has particular relevance in the context of the Ukraine invasion and Russian behaviour in the digital space for many years now. As former President Obama said in a recent interview with The Atlantic magazine,

“if you ask me what I’m most concerned about when I think back to towards the end of my presidency… that is the degree to which information, disinformation, misinformation was being weaponized. And we saw it. But I think I underestimated the degree to which democracies were as vulnerable to it as they were, including ours”.

And the director of GCHQ, Sir Jeremy Fleming, made a strong point about values in his recent speech in Australia. As he said,

“we must make sure that we stay true to our values, those that have made our systems and democracies so successful and will do so in the future too”.

A recent Ofcom study has revealed that 30% of UK adults who go online are unsure about or do not even consider the truthfulness of online information. A further 6%—around one in every 20 internet users—believe everything they see online.

There is, of course, crossover with the Online Safety Bill. I was grateful for the presence of the noble Lord, Lord Parkinson, at our meeting, where he gave some assurance about the operation of the Bill and the powers of Ofcom regarding the design features of social media platforms and the way that their algorithms amplify misinformation and disinformation; about the adoption of the Law Commission proposals for a new offence of false communication; and about the workings of the counter-disinformation unit together with the Defending Democracy programme and the so-called Election Cell—which I was assured was not as opaque as it seems.

I do not expect the Minister to promise amendments ahead of the Online Safety Bill coming to this House, but I hope he will demonstrate a strong awareness of the importance of this aspect of digital campaigning. We will obviously return to this subject when the OSB comes into this House later in the year.

All that said, it is clear that in many of these areas the guidance and review of an independent Electoral Commission is going to be critical together with parliamentary oversight. Responsibility for elections has now transferred to DLUHC from the Cabinet Office but it is no more acceptable for the Secretary of State for Levelling Up to set the policy and priorities for the Electoral Commission than it is for the Cabinet Office.

Given the risk of skewing our political system in favour of the incumbent Government, it is all the more important we hold fast when the issue which we determined in the first group today comes back to this House. I beg to move.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have an amendment in this group—Amendment 59, previously tabled in Committee as Amendment 45B. The purpose of the amendment is very simple: it aims to increase transparency about third party campaigning by inserting this new clause, “Disclosure of status as a recognised third party”.

It is not concerned with the question of the imprints on electronic or printed material, which are, essentially, transitory—they come and go—and which are the target of the amendments from the noble Lord, Lord Clement-Jones, to which the Minister will reply in a minute. It is much simpler than that. It focuses solely on the homepage or the website, if it has one, of a registered third party campaigning organisation. If the amendment were accepted, the homepage of that registered organisation would be required to carry a statement along the lines of “XYZ”—the name of the campaigning organisation—“is a registered third party campaigner under Part 6 of PPERA 2000”, or similar wording.

The purpose behind the amendment is to ensure that individual members of the public viewing the website of a particular organisation are unequivocally, and at all times, made aware that the organisation is an active political campaigner. I have never suggested that this is going to bring about any radical change, but by increasing transparency about who is doing what to whom, it follows the direction of travel that the Government have said underlies the Bill.

In his reply in Committee, my noble friend the Minister was rather encouraging when he said:

“On the specific amendment of my noble friend, while the Government entirely agree with the principle that the public should clearly be able to identify recognised third parties, I can reassure the noble Lord that the current rules, supplemented by new rules in the Bill, will provide for that.”—[Official Report, 17/3/22; col. 477.]


He went on to say he wanted to go away to consider it further and asked whether I would withdraw my amendment, which I duly did.

At that point, my noble friend took the trouble to write to me. By this stage, I am afraid his remarks were rather less encouraging. He went on to say in his letter on 4 April:

“I … wanted to reiterate the Government’s position on your proposal to require registered third parties to disclose their registered status on a prominent place on their website, where they have a website … The Government entirely agrees it is right that third-party groups campaigning at elections should be transparent and clearly identifiable. Registered third party campaigners are already … listed on the Electoral Commission’s website, and the Elections Bill will introduce further requirements to ensure that any UK-based group spending over £10,000 registers with the regulator.”


If noble Lords read and consider that carefully, the outcome is quite different from that which would be achieved if my amendment were implemented. Yes, there will be rules about imprints on digital material, which might be strengthened by the amendments of the noble Lord, Lord Clement-Jones, if they were accepted, but unless a member of the public is visiting the organisation’s website because he or she has just received some imprinted material with a digital imprint on it, there will be no way of knowing whether or not the organisation in question is a registered third-party campaigner.

--- Later in debate ---

Moved by

[Lord Hodgson of Astley Abbotts]

59: After Clause 46, insert the following new Clause—
“Disclosure of status as a recognised third party
(1) Section 89 of PPERA (Register of notifications for purposes of section 88) is amended as follows.(2) At end of heading insert “and third party disclosure of registered status”.(3) After subsection (4) insert—“(5) During a period in which a notification under section 88 is in effect and the Commission has entered details of the notification on the register in accordance with this section, a third party shall disclose its status as a recognised third party in a prominent place on the homepage of its website.(6) For the purposes of subsection (5), a reference to a third party's “website” means any part of a website relating to that third party which that third party has caused or authorised to appear.(7) Subsection (5) shall not apply where a third party does not have a website within the meaning of subsection (6).(8) A person commits an offence if, without reasonable excuse, they contravene subsection (5).””Member’s explanatory statement
This amendment requires registered non-party campaigners to disclose their status as such on a prominent place on their websites, so as to increase transparency for the public.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, like the noble Lord, Lord Clement-Jones, I am disappointed by my noble friend’s response. His support in principle has been lost in a series of technical issues. Instead of seeing how we could make this happen, he has fallen back on “penalty not specified” and “technical problems”. This is a shame, bearing in mind that this is about transparency. Its purpose is simple. It does not impose any significant bureaucratic burden on anybody anywhere. He has given a fig leaf, a quarter of a loaf, a few slices of bread in his undertaking to make sure that the Electoral Commission is brought into play in looking at this whole problem. This is so that we do not have a situation where people could pop on and off the website: when they are issuing digital imprinted material they put their name on the website and when they are not doing so they take it away again so people cannot see whether they are campaigners or not.

I hope my noble friend will make sure the feet of the Electoral Commission are held to the fire on that. I am not about gesture Divisions so, with that assurance, I beg leave to withdraw Amendment 59.

[The Deputy Speaker (Baroness Fookes) (Con)]

My Lords, it is not possible to withdraw at this point; I must technically put the question. No one has thereafter to vote for it if they do not wish to do so.

The question is open now, so the noble Lord may withdraw if he wishes.

[Lord Hodgson of Astley Abbotts (Con)]

I beg leave to withdraw.

Amendment 59 withdrawn.