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.