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.

--- Later in debate ---

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.