Elections Bill

Lord Judge Excerpts

2nd reading
Wednesday 23rd February 2022 Lords Chamber

[Lord Judge (CB)]

My Lords, I shall concentrate on Part 3, for today’s purposes at any rate, and will to some extent repeat what the noble Baroness, Lady Hayman of Ullock, had to say. Surely we all understand that there is a constitutional necessity, in a system of democracy based on universal suffrage, that any electoral commission should be wholly and totally independent.

[Noble Lords]

Hear, hear.

[Lord Judge (CB)]

I imagine that I heard “Hear, hears” on the government side of the House, as I did among the Cross Benches, so I repeat: surely we understand the constitutional necessity, in a democracy based on universal suffrage, that there should be an independent Electoral Commission.

[Noble Lords]

Hear, hear!

[Lord Judge (CB)]

What do I mean by “independent”? Independent of all political parties—that is easy, but there is a further step. The commission must be independent of all direct or indirect political influence, which is rather different, and vested with the responsibility on behalf of the electorate—the entire electorate, whoever they vote for or whether they do not vote at all—first to diminish to extinction the possibility that the party in government would have any sort of undue influence over the election. I should not have used “undue”; there can be no such thing as any influence, however slight, that is not undue. The second consideration is that the electorate must be satisfied that the system protects the independence of the Electoral Commission. It is not just a matter of what the law is—although, as I say, I shall endeavour to explain why in this Bill the law does not protect that—it is about the perception that it is independent. We should look at what is proposed here.

“The Secretary of State may designate”—


so that is the power—

“a statement for the purposes of”

the Act. What is the statement?

“The statement is a statement prepared by the Secretary of State that sets out”—


and I shall go slowly through these words even though I have only six minutes—

“strategic and policy priorities of Her Majesty’s government relating to elections”.

Could the Bill not at least have had the courtesy to say “the strategic and policy priorities of Her Majesty’s Parliament”? New paragraph (b) provides for the statement to set out

“the role … of the Commission in enabling Her Majesty’s government to meet”

their own priorities. New subsection (3) says:

“The statement may also set out … guidance relating to particular matters in respect of which the Commission have functions”.


I will pause there. That is its duty, and it will be subject to reference to the Speaker’s Committee. No disrespect to the Speaker’s Committee, but what is its function? Its function is to see that the Electoral Commission has carried out its own statutory obligations.

What is chilling about the present proposal is that there is no room for the Electoral Commission to say, “We don’t agree with that. That has a huge political advantage for the Government in power.” It might even want to say, “That has a huge advantage for the Opposition”, but it has no discretion of any kind to say, “We disagree with the directives given to us in the guidance or this statement of policy priorities.” It cannot do that; nor can the Speaker’s Committee. The committee does not have the power to do so; it is simply there to make sure that the Electoral Commission does what the Secretary of State has ordered it to do. It is simple enough to read the statute, and I venture to suggest that this is what it says. It is no answer to say that the commission must have regard to the statement when carrying out its functions, as though that imposes a limitation. What it is imposing is an obligation—“must have regard to”. Is that really what we want? We need to think rather carefully about what Part 3 provides for.

I have time for one sub-point. The obligation on the Secretary of State is to consult PACAC, among others, before the statement is produced. If so, why will the Government not listen to PACAC’s observations on this part of the Bill:

“The Government has not demonstrated that the proposed measures impacting the Electoral Commission are both necessary and proportionate, and therefore risks undermining public confidence in the effective and independent regulation of the electoral system”?


That is not the end of it. The report goes on to recommend—on top of its series of recommendations about every one of these clauses suggesting modification and improvement—that:

“Clauses 13 to 15 of the Bill are removed, pending a formal public consultation”


and that the body that is supposed to be consulted by the Secretary of State should be allowed to have its say and have another look.

Elections Bill

Lord Judge Excerpts

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

Debate on whether Clause 14 should stand part of the Bill.

[Lord Judge (CB)]

My Lords, the noble Lord, Lord Wallace, regrets that he cannot be here to introduce this stand part notice. He has asked me to do so in his place. The noble Lord, Lord Blunkett, was here and was very anxious to speak in this debate, but he has had to apologise because if he had spoken, he would not have been able to listen to the whole debate.

We started this debate rather a long time ago. In one sense, all the rhetoric has been played on both sides. I am not necessarily going to be unable to use a little bit of rhetoric, but in answer to this wonderful exchange between the noble Lord, Lord Butler, and the noble Lord, Lord Collins, about the problem and the answer, I suggest that the problem that is being faced, summarised in the way that the Minister put it, is a certain loss of confidence in the Electoral Commission’s ability to exercise its responsibilities. That may be wrong, but if it is right and that is the problem, I respectfully suggest that Clauses 14 and 15 of this Bill are emphatically not the answer to that problem. Once again, I am sorry to trespass on something which I rabbit on about in the Chamber, but we are vesting power in the Executive, and that is always dangerous.

These are matters which should be outside party politics. I recognise the difficulties of making this utterly immaculate, but how our elections are conducted and handled should, as far as possible, be clear of party-political pressures or Executive pressures, influence, control, or power. If they are subjected to any of those, they damage public confidence in how the Electoral Commission will work.

I need to go back to the founding principle, which I found in the 1998 report:

“An Election Commission in a democracy like ours could not function properly, or indeed at all, unless it were scrupulously impartial and believed to be so by everyone seriously involved and by the public at large.”


As a follow-up to that, the CSPL review of the Electoral Commission in 2007 said that

“any system … must … protect the Commission’s independence and impartiality from the possibility of undue influence for partisan political or electoral advantage.”

It is there that Clauses 14 and 15 fall down.

I shall go through the Bill to pick out one or two provisions. I suggest that every one of these provisions in Clauses 14 and 15 is dangerous in the sense that they increase the influence of the Government of the day over the Electoral Commission. It is no good just taking them as individual provisions; they need to be looked at as a package. Let us start with new Section 4A in Clause 14—if anyone is bothering to look, it is on page 20—dealing with the strategy and policy statement, which is a new idea. The clause says:

“The Secretary of State may designate a statement … prepared by the Secretary of State that sets out … strategic and policy priorities of Her Majesty’s government”


in relation to elections. By definition, that highlights whose policies and priorities are going to be included. Then it sets out

“the role and responsibilities of the Commission in enabling Her Majesty’s government to meet”

the Government’s own strategic and policy priorities. You do not need to look much further to see where undue influence is likely to be increased.

Then the Electoral Commission, which everyone agrees should be independent of government—I think that at Second Reading everyone eventually agreed with that—is required by statute to enable the Government to achieve their priorities as they relate to elections. I told the cynic in me last night, “Don’t say this”, but we have been waiting an awfully long time so I am going to say it anyway: I thought the priority of most Governments was to win elections. Still, I will not repeat that; it is cynical of me.

Let us look further. The Secretary of State can use the statement to issue guidance relating to other matters for which the Electoral Commission already has, or may in future have, statutory functions, whether by primary or secondary legislation. The noble Lord, Lord Hodgson of Astley Abbotts, is in his place, and he is not going to let the Government forget about the significance of the misuse, as I would describe it, of guidance. Using guidance as a power rather suggests that it would be extremely difficult for the new Electoral Commission working under these new arrangements simply to ignore the obligation to follow the guidance; the guidance will be there and the commission will be obliged to look at it. How lawful that would be if it went to a matter of judicial review, I will leave to the noble Lord, Lord Hodgson. We really need to look at those two terms together.

The suspicion about these clauses, a suspicion that has been ventilated around the House—although not the whole House—is due to the total absence of any formal or public consultation on the issue. If this were happening in another country that we thought was a democratic one, true to the principles of democracy and the wide franchise, we would be very worried about what was happening to our democratic friend.

We have spent a long time looking at new Section 4B in Clause 14. What is the obligation of the commission? It says:

“The Commission must have regard to the statement when carrying out their functions”—


that is, the Government’s prepared statement setting out their strategic and policy priorities. That is the only order that is made in the legislation. Sometimes we have legislation where the organisation or body, whatever it might be, is required to have regard to some statement or other or to some principle in the legislation, but it is rare—I do not say that it never happens because that is a word that I never use—for it to have no other responsibility. But this provision is all that the commission has to have regard to, in the express language of new Section 4B.

I underline that that provision is not one of a list of factors that the commission has to bear in mind. It does not identify any other factor to be taken into account. It does not provide a way out for the Electoral Commission to say, for example, “We’re not obliged to follow the statement, and we will not, because that would influence us into making a decision that we think would be electorally unfair. It is motivated by political advantage.” So that is a very stark responsibility. I rather enjoyed the observations by the noble Baroness, Lady Meacher, this morning about how the world really looks if you are in the position of someone who is “having regard to” government policy. The “must have regard to” is clear and unequivocal, and there is no room in the legislation for any other consideration being provided for. So we have “Her Majesty’s government” instead of “Parliament”, and no other consideration except the statement once it has been designated.

I now turn to one of the defences put up by the Minister: the consultation process. We heard a lot about the consultation process this afternoon. I will tell noble Lords what I think about it because there were times when I had to look at legislation that said the Lord Chief Justice will be consulted. It was completely valueless in terms of any action. The Secretary of State can consult. “Hello, my noble Lord, Lord Collins. What do you think of this Bill? You are very worried about it? I have taken a note of that, but I will now write it exactly the way I like it.” That is consultation. It would count as consultation and pass any judicial review as a proper form of consultation.

To look a little further, as a controlling element therefore of shielding the Electoral Commission, which is after all what we are supposed to be doing, why does everybody think a fig leaf is elegant? It is not elegant; it is transparent, and the sight is not a golden one. The obligation is to consult. There is no requirement for concurrence or agreement. Obviously, everyone can make non-binding suggestions, but they provide absolutely no form of protection for the Electoral Commission.

The Secretary of State has to consult and then decide what he or she thinks is necessary. That is not a protection for the Electoral Commission. It is a nice idea. It looks good and polite and British, but in terms of power, which is what we are discussing, it has no impact. I cannot help reminding the Committee—I said this at Second Reading—what PACAC had to say about this issue:

“We recommend that the Bill be amended to provide that the Electoral Commission is able to depart from the guidance set out in the Statement if it has a statutory duty to do so”—


well obviously, but the committee adds—

“or if it reasonably believes it is justified in specific circumstances.”

And here is the rub:

“This amendment is necessary to give effect to the Government’s stated intention that the Statement will not amount to a power to direct the Electoral Commission, and to protect the Electoral Commission’s independence.”


Well, that is pretty stark. I wish I had thought of saying that myself but, as PACAC said it, I am very happy to adopt it as my own. We should note that it is ultimately a matter for the Secretary of State. That is new Section 4C.

We can omit new Section 4D, because that deals with the five-yearly review. New Section 4E, on which the noble Lord, Lord Scriven, has spent some time, is in many ways the most pernicious part of the whole Bill. It states:

“The Secretary of State may revise a statement designated”.


He can do it on his own initiative and if the commission requests it. It is a dispensing power, because new Section 4E(4) states:

“The Secretary of State may determine … that section 4C(2) (consultation requirements) does not apply in relation to the revised statement.”


In 1688, we kicked out the King. We got a new one, we got a new Queen, we got an Act of Settlement and Parliament was sovereign at last and nobody liked the disapplication or dispensing power.

But can we look a little further at this, at the Secretary of State’s “own initiative” without notice? The Secretary of State is not obliged to consult anybody. He “must give notice”—that is, after he has made up his mind—of what he proposes to do, and

“must consider any representations made by the Speaker’s Committee”.

That is even less than consultation; he “must consider any representations”. It is very strange, is it not?

--- Later in debate ---

[Viscount Stansgate (Lab)]

My Lords, I think the whole House is grateful to the noble and learned Lord for the forensic way in which he has taken these clauses and demolished their legitimacy. I sat through the entire Second Reading debate, and this was identified as one of the major issues in the Bill. I put it to the Government that to introduce these provisions is a terrible mistake to make. I have no idea what type of discussions within government led to this being part of the Bill. I find myself wondering whether I am going to have to wait for the Minister’s memoirs to discover that, privately and secretly, even he thought there were disadvantages to putting forward a proposal of this kind. Whatever you may think of it now, there will be different Governments in the future who may use this legislation in ways that we cannot predict and would not want.

It is rare for me, in the short time I have been here, to listen to a debate which could be encapsulated in a single speech, so I will sit down. I hope that the House realises what a mistake is being made and just thinks of the damage that will be done to our reputation as a democracy were these provisions to go through.

[Lord Judge (CB)]

With the indulgence of the House, when I was explaining about the noble Lords, Lord Blunkett and Lord Wallace, I omitted a courtesy to the Minister for the meeting we had last week. I always appreciate those meetings and I am sorry I omitted that.

[Lord Kerslake (CB)]

My Lords, it was a fantastic dissection of these clauses by the noble and learned Lord, Lord Judge. I lend my support to the argument and, had there been any spaces left, I would have added my name to those opposing the clauses. There is a right way of doing legislation relating to our democracy and a wrong way. The Bill, as I said at Second Reading, is definitively the wrong kind of approach. It should have been done with consensus, pre-legislative scrutiny and a much wider form of consultation than we saw.

I have real problems with these two clauses, both the way they have been brought forward and their content. I will deal first with the way in which they have been brought forward. We have heard a lot about the absence of wider consultation. What truly astonished me was what I heard from the Electoral Commission in its excellent briefing to Cross-Bench Peers yesterday. I asked the commission if it was consulted before the Government made their statement of including this in the Bill and the answer was “No”. It was not. It is quite extraordinary to bring forward something of such significance to the commission and not consult it or even inform it of your intention beforehand. That says a lot about the Government’s attitude towards the commission and how they will approach consultation in the future. It is an appalling lack of respect for a pivotal organisation in our democracy.

My second point is around the substance of this section of the Bill. The Government, to put it very directly, are substituting government control for parliamentary scrutiny. That is essentially what is happening with these two clauses. Of course, the Electoral Commission is not perfect. It will have made mistakes and will own up to having done so; it will make mistakes in the future, I am sure, but it is absolutely not resistant to being accountable. It will and does appear in front of Select Committees. As we have heard, it appears in front of the current committee that has been spoken about. The issue is not accountability—being able to hold it to account for what it does and challenge it. That is already in the current arrangements and if it needed to be strengthened, it could be.

This is an issue about control. Is the Government’s view the same as that held, apparently, by a number of Members of the House of Commons, who have lost confidence in the commission? If it is not that, what is it? What problem are we trying to solve here and why are we taking such significant control? The response from the Government is, “Look at the illustrative version of this: there is nothing to see here”. I am afraid that is just not good enough. As the noble and learned Lord, Lord Judge, said, we need to look at what is on the face of the Bill. What does the Bill allow to happen in these circumstances? It is quite clear that, through the Bill, a much more difficult set of requirements could be put on the commission by way of its strategy and policy. We cannot take an illustrative version of this and be assured by it; it simply is not enough. We have to be sure that no version that would be difficult and problematic, and damaged its independence, could come forward under the legislation—and, quite clearly, it could.

We have had much debate about what is meant by “have regard to”, so I looked up a common definition. It says,

“to take account of this guidance and carefully consider it … there would need to be a good reason to justify not complying with it.”

That is what is in the dictionary for “have regard to”, and it is pretty onerous. For anybody who has worked, as we heard earlier, for an arm’s-length organisation, and I have been the chief executive of one, “have regard to” from a Government is a pretty strong expectation that you will follow and do as you are told. I have to be really blunt here: the only conclusion I can have about why this is coming forward is that it is to put the commission in its place and make it clear what the Government expect it to do and how they expect it to do it. That is a very serious and dangerous step forward.

Another defence that is put for these proposals is that we have this sort of provision for other regulators. That is a completely invalid argument. Other regulators are there to carry out the business of government, to execute and deliver government policy. It is perfectly in order that they have strategy and policy statements from the Government, because they are very clearly acting on behalf of the Government. They may have a certain independence but are there as agents of government. The Electoral Commission is not an agent of government—this is where I think the confusion has come in—but a body that acts on behalf of Parliament and our parliamentary democracy. That is the core difficulty I have with what is in the Bill.

If I had any doubts about the issue, if I thought I might be overreading it, I invite colleagues to read again the letter that came from the commissioners. I shall just read out one paragraph:

“It is our firm and shared view that the introduction of a Strategy and Policy statement—enabling the Government to guide the work of the Commission—is inconsistent with the role that an independent electoral commission plays in a healthy democracy. This independence is fundamental to maintaining confidence and legitimacy in our electoral system.”


Those are extraordinary words from all bar one of the commissioners, and I suspect the one who did not sign it probably had very similar views—I do not know because I cannot ask him. The key point is that having a statement as strong as that from the Electoral Commission, the body we are looking to introduce this for, ought to settle the argument. We ought to say, “If that’s how they feel about this, there must be a serious and real issue that needs to be addressed here”. I do not think I have ever read, in my entire public life, something as strong as that from a body such as the Electoral Commission. For that reason alone, we need to throw out these clauses.

PACAC has said the same thing. Indeed, it said it had not had any representations in support of these clauses—nothing at all. There were plenty who were concerned about it, and I am sure every other noble Lord’s mailbox is like mine, stuffed with correspondence from people who are really concerned about this. If we are serious about the concerns of maintaining the integrity of the democracy we have and the integrity of the Electoral Commission, we should support the proposal and throw out these two clauses.

--- Later in debate ---

[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.

[Lord Judge (CB)]

I am very grateful to everybody who has taken part in this debate. It has been a very interesting debate, with aspects of the issue to which my eyes have certainly been opened.

Noble Lords will not want me to try to address every point made by the Minister, but I shall draw attention to a couple. First, if there are problems with how the Electoral Commission is doing its job, or problems with the extent of its job and the ambit of its responsibilities, what we should do is reform the Electoral Commission. We do that in primary legislation before both Houses, not by a ministerial statement.

Secondly, the Minister said that there was nothing in here that used a direction, because “must have regard to” is not a direction. It is not a direction—but the issue is not merely power but influence, and undue influence. However much one tries to avoid the fact, if the Electoral Commission must have regard to whatever the Minister says, the perception of undue influence is obvious, the fact of undue influence is, I suggest, inevitable, and the truth of the matter is that over the years the Electoral Commission will become more and more dependent on what the Secretary of State’s statement asserts.

Finally, the point I sought to make was that the Speaker’s Committee was fine and good when we had the Electoral Commission exercising the responsibilities it currently has, without the introduction of the new Secretary of State’s statement. But what alarms me—and, I suspect, alarms the House—is simply this: there will be two government Ministers examining the work of the Electoral Commission and checking whether it has complied with, or responded to, the Secretary of State’s statement. Fine: they will be seeing whether their ministerial colleague’s directions, invitation and suggestions have been obeyed. In other words, the Electoral Commission will be judged by somebody in the same Cabinet, or the same party. That is a serious change in the way in which the commission works.

I am sorry to say this but, having listened to the Minister, I am in the same position as PACAC was. Incidentally, PACAC is one of the bodies that the Secretary of State is supposed to consult, but its recommendation has been totally ignored. The Minister has not demonstrated that the proposed measures that we are considering are both necessary and proportionate. Nor has he demonstrated that the risk of

“undermining public confidence in the effective and independent regulation of the electoral system”

has been avoided. For those reasons, among many put forward, although for today’s purposes I shall not press the matter, we shall have to return to this on Report.

Clause 14 agreed.

Elections Bill

Lord Judge Excerpts

Report stage
Monday 25th April 2022 Lords Chamber

Moved by

[Lord Judge]

45: Clause 15, leave out Clause 15

[Lord Judge (CB)]

My Lords—oh dear, I am sorry your Lordships are all departing. Maybe the Conservatives who are departing do not want to hear what I have to say.

[Viscount Hailsham (Con)]

No, no, we are here.

[Lord Judge (CB)]

It is a very strange thing but, quite by accident—I promise it is by accident—I happen to have my copy of the Bill open at a part I have not really studied, called “Undue Influence”. Suddenly I find myself thinking, “What a very good thing to prevent that happening in this Bill.”

I have addressed your Lordships on a number of occasions about the Bill, particularly these clauses, including Clause 15, which we are discussing now. Noble Lords have listened with patience and courtesy and I have listened to the Minister with great patience. I regret that I am unconvinced by what he has said in the House so I intend to seek the opinion of the House at the end of this debate, but I intend to be brief.

I really do not think that anyone in your Lordships’ House can have the slightest doubt about the constitutional imperative that the Electoral Commission should be politically independent—independent of all political influence, whether direct or indirect, over the electoral process. If anyone disagrees with that, would they please say so? Any possibility that the party in government may have influence over the electoral process should be rejected.

Clauses 15 and 16 are repugnant to that foundational principle. They require the commission to have regard, at the very lowest, to pay close attention to the strategy and policy principles, and to follow the guidance, of the Government of the day. The importance of this feature of the language, which is tucked away but needs emphasis, is that the Electoral Commission will exercise its responsibilities in relation to the strategy and policy statement to enable Her Majesty’s Government to meet those priorities. If we rephrase that, it says that the Electoral Commission must enable the strategic and policy priorities of the Government to be met. That does not sound like independence. These are directive provisions. The word “duty” is used, imposing unequivocal statutory obligations on the commission that will govern—or, if not govern, will certainly influence —its own performance of its responsibility, and perhaps, dare I say it, is meant to influence it.

The commission, which everyone agrees—so far, at any rate—should be independent of government, is to be subject to a statutory duty to enable the Government to achieve their priorities: that is to say, their priorities, strategies and guidance to the extent that they relate to the electoral system. That is what the Bill says. This proposal came out of the blue without reference, consultation or, astonishingly—to me, at any rate, as someone who does not have a political background—for a proposal that has a constitutional impact, without cross-party discussion of any kind.

There is a problem with the Electoral Commission, as I have heard from all sides: it does not work as well as it should; it is inefficient; it does not do this, it does do this and it was wrong to do that. I have heard them all. Fine, but this proposal is not an answer to that problem. I simply ask us all to think: if this proposal had been included in the original Bill in 2000, outrage would have been expressed on all sides of the House of Commons. That is the problem.

--- Later in debate ---

[Lord True (Con)]

My Lords, I am glad that the noble Lord rose. I had started to make it clear that I was not making any such proposal. The analogy I was using is just a mechanism in terms of the way that the committee will be able to conduct its reviews, effectively holding the commission accountable on a broader range of its activities than is currently allowed in law. As I sought to explain to your Lordships, that remit is currently narrowly restricted.

For the reasons that I have set out, I urge that my noble friends and noble Lords across the House oppose the amendments put forward by the noble and learned Lord, and that Clauses 15 and 16 stand part of the Bill.

[Lord Judge (CB)]

My Lords, I thank everybody who has participated, including those Members of the House who do not agree with me. It is fun to listen to alternative arguments.

I have just a couple of points to make. The problem with these clauses is that they were inserted without any kind of discussion. When constitutional issues are being addressed, and when, in particular, the independence of the Electoral Commission and its performance are being addressed, surely, of all things, that is something for cross-party discussion, and it is for the cross-parties to make up their minds how to make the Electoral Commission do its job and perform its function better than it has. That is a matter for Parliament: I am not going to advance different solutions to this, but the problem is that nobody has asked anybody else. That is why I describe this proposal as “new minted”. It is “new minted”, and that is one of its problems.

The other problem is with the phrase “must have regard to”. I “must have regard” to everything the Minister says. I am going to listen to it; I am going to be influenced by it. I might not feel quite as strongly as I did against him—I do not know—but the point is that you have to have regard to the statement by the Minister of the Government’s strategies, priorities and guidance, and that would influence any body of people, however independent-minded they are and wish to be. That, surely, is the point of this legislation. The Government want the commission to be influenced by the strategy and priorities paper.

If the Electoral Commission says, “Well, we have seen what the Minister has to say. We have read the statement and we think it’s a load of rubbish”, what happens then? Apart from anything else, the noble Lord, Lord Pannick, will be briefed on a judicial review by the Government that the Electoral Commission was not exercising its powers correctly, and he would probably win. As I have told noble Lords before, he never won a single case in front of me; and as I have also told noble Lords before, on every occasion when he appealed, he won.

[Lord Pannick (CB)]

I would just add, on a serious note, that the noble and learned Lord makes an absolutely correct point. If the Electoral Commission said, “We do not agree with this document and we are not going to follow it”, there would be a real danger of judicial review. There would be a real danger, in particular, because this document would have the approval of Parliament, it having been whipped through.

[Lord Judge (CB)]

My Lords, on that happy note, I think we had better let the House make up its own mind. I seek the opinion of the House.

--- Later in debate ---

Moved by

[Lord Judge]

46: Clause 16, leave out Clause 16

Elections Bill

Lord Judge Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

Moved by

[Lord Judge]

At end insert “and do propose Amendments 23L and 23M as additional amendments to the words so restored to the Bill—

23L: Clause 14, page 21, line 19, after “to” insert “, but is not bound by,”

23M: Clause 15, page 25, line 40, at end insert—
“(1A) When the Speaker’s Committee carries out the function in subsection (1), members who are Ministers of the Crown must recuse themselves.””

[Lord Judge (CB)]

My Lords, I must get this right. I beg to move Motion A1, as an amendment to Motion A, to insert the words at the end as printed on the Marshalled List. So we are all very much wiser, are we not?

What I am actually talking about is the words in one amendment,

“but is not bound by”.

In the other amendment, the text is much lengthier:

“When the Speaker’s Committee carries out the function in subsection (1)—


to which I shall come—

“members who are Ministers of the Crown must recuse themselves.”

So now I hope we know what we are talking about.

On Monday, we had a very interesting debate. A substantial majority of your Lordships’ House—cross-party, I hasten to add—thought it right to remove the two clauses from the Bill. These two clauses have been renumbered, upnumbered and their numbers changed, so I will go back to the original numbers, 14 and 15. We are dealing with the power given to the Secretary of State by this Bill to issue a strategy statement setting out his or her priorities and the guidance to which the commission would have to have regard. This House took the view that that provision would have left the commission exposed and would have been inconsistent with the need for the commission to be—and to be seen to be—independent of the Government and indeed of all political parties.

Perhaps it is just worth looking at the way in which the Electoral Commission came to be founded. The Fifth Report of the Committee on Standards in Public Life used these simple words:

“Those who have advocated the establishment of an Electoral Commission have been emphatic that it should be independent both of the government of the day and of the political parties. We agree. An Election Commission in a democracy like ours could not function properly, or indeed at all, unless it were scrupulously impartial and believed to be so by everyone seriously involved and by the public at large.”


Today, the other place has considered the amendments that this House suggested, and it has restored the original Clauses 14 and 15, with some amendments. I welcome the amendments; they are a step forward. But they are a step forward on a ladder on which we had not reached the first rung in the original legislation.

On a separate matter, I am very grateful to the Minister for the conversations we have had. If I may say so, we had a robust exchange of views. I am pleased that there have been improvements, but they do not add very much. What they amount to is this: they make it absolutely clear that the Secretary of State must not issue a statement that might lead the commission to act inconsistently with its statutory duties. Well, that is important, but nobody ever thought that anybody would be able to issue instructions to be unlawful. Well, I suppose somebody might have thought, “We’ll issue instructions to be unlawful”—but I do not think we will consider that in this particular situation. I am perfectly happy to accept that these amendments increase parliamentary supervision of the processes, but I respectfully suggest to the House that, although there is an improvement, it does not address the independence and the perception of independence of the commission.

I respect the decision of the other place—and that is it. I am not seeking to restore the original decision of this House. However, I am proposing that there should be these small amendments to ensure that the independence is established. I also propose to ask the other place to think again about these two amendments; I am not being critical in any way about this because it did not have this material to consider. I will deal with these amendments very briefly, including the words “not bound by”.

I will refer back to the letter which the Minister kindly sent today to all Peers, which includes this passage in relation to “must have regard to”: “The Government’s view is that this duty will not allow the Government to direct the commission’s decision-making, nor will it undermine the commission’s other statutory duties or displace the commission’s need to carry out these other duties. It simply means that, when carrying out their functions, the commission will be required to consider the statement and weigh it up against any other relevant considerations. Therefore, the commission will remain operationally independent and governed by its commissioners”.

I do not understand the words “operationally independent”; the commission is either independent or not. That is at the foundation of the argument against this amendment. Even if it were correct, it does not address this crucial question: the issuing of the statement must mean that the Secretary of State will have an influence on the decisions of the commission. Self-evidently, the commission cannot say, “Aha, here’s the statement, yippee”, and chuck it out the window or put it in the bin. It will influence the decision; that is the point of it and exactly its purpose. On this issue, my amendment is very simple. As I have discussed, I recognise the argument that “must have regard to” also carries this implication of “not bound by”—I do not think that it does, but I recognise the argument. Assuming that I am wrong, and assuming that it does carry that implication, in the context of an elections Bill and the sensitivities which surround all electoral questions, surely it is so much simpler to express plainly and unequivocally in the Bill that the Electoral Commission will not be bound by the statement issued by the Secretary of State. That is what I am seeking with this amendment.

As to the other amendment, your Lordships will remember that I suggested that having two Ministers of the Crown on the commission would ultimately mean that the judge—that is the way in which the commission would do its work—would include two Members of the Government whose Government had issued the statement. In my old life, we called that “judge in his own cause”; that is what it amounts to. Whereas I understand the need for an examination—I am not happy about it, but I understand the argument—it would be much more appropriate and consistent with an independent commission that Ministers of the Crown should not be judging whether or not the commission had followed and had proper regard to the statement given to it by the Secretary of State.

I am asking this House to send back the amendments I have put forward on the basis that the other place could have a chance to look at them for the first time and make up its own mind about whether they are sensible. I urge that they be accepted, that they would make the improvements necessary to the Bill, and that they would make it possible to look everyone in the eye and say, “This is an independent body exercising an independent function”. I beg to move.

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It is a matter for your Lordships to decide whether you wish to pursue things further. I believe, in all humility, that with the amendments laid by my colleagues in the other place—which the noble and learned Lord has, with his utter civility, accepted—improvements have been made to the position in the Bill. On balance, given what I have said about the Government’s position on this proposition and given the offer on the table, in effect, from the Government in the Commons’ proposals, and given the many changes and improvements that have been made—to the noble Baroness opposite I say that we will of course keep the House informed on the vital measures that we need to take to ensure that people are fully informed—and having listened carefully to another brilliant speech of advocacy by the noble and learned Lord, Lord Judge, the judgment ultimately to be made by your Lordships’ House is whether it is appropriate to continue pursuing these matters for a further stage. I respectfully submit that, given that the Government are not likely to—indeed will not—accept the proposals that have been put forward, it may be to the convenience of all that that is accepted. It is of course absolutely within the right of your Lordships to vote and decide as you wish, but I thought it was important that the House should understand the likely position and the Government’s view of these proposals.

[Lord Judge (CB)]

My Lords, I had no doubt whatever that I would ask the House to consider its views and to agree to the Motion in my name. I regret to say this but, having heard the last few observations by the Minister, I am encouraged to make sure that, if this becomes part of the law without the amendments that are included in this Motion, it will be the responsibility of those in the other place who voted for it. Therefore, I respectfully ask the House to agree to my Motion.