Elections Bill

Lord Kerslake Excerpts

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

[Lord Butler of Brockwell (CB)]

My Lords, since the Minister will no doubt address the question that the noble Lord, Lord Collins, raised, perhaps I may just add a supplementary. In addition to asking what problem Clauses 14 and 15 address, why is a strategy and policy statement thought the necessary solution to it?

[Lord Kerslake (CB)]

My Lords, may I add a further supplementary question? In the Written Ministerial Statement, the Minister in the other place, Chloe Smith, said:

“In recent years, some across the House have lost confidence in the work of the Commission”.—[Official Report, Commons, 17/6/21; col. 11WS.]


Perhaps the Minister can tell us whether that is the view of some across the House of Commons or of the Government? Is this change about an issue of confidence or is it something different?

[Lord Scriven (LD)]

My Lords, it is interesting to follow the comments of the noble Baroness, Lady Noakes, who says that this is a strategic statement that is there for five years and not for revision. If we look at page 24 of the Bill, new Section 4E says that there is a power to revise the statement and that the Secretary of State may revise the statement at any time. It goes on further to say that:

“The power under subsection (1) may be exercised … on the Secretary of State’s own initiative”.


If this is a strategic statement, it then goes on to say about revision on page 25 under new Section 4E(4):

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


The view of the noble Baroness, Lady Noakes, is that this is a five-year strategy where the Secretary of State does not want to intervene because it is about the long-term view of the commission. But the Secretary of State can solely decide that not only are they going to revise but that no consultation is needed. May I ask the Minister under what circumstances and for what purpose would the Secretary of State wish to revise the strategy and policy statement? Under what circumstances would the Secretary of State deem it inappropriate to consult on the new statement, particularly if we follow the view of the noble Baroness, Lady Noakes, that this is a strategic view where the Secretary of State does not need to get involved on day-to-day issues because the strategic direction is set for five years? Why have the revision policy and, particularly, why can the Secretary of State determine alone to change the statement without consultation?

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[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.

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[Lord True (Con)]

My Lords, of course I listen carefully. Having listened carefully, I infer that your Lordships view these clauses with somewhat modified rapture. Even if I were as eloquent as Pericles, which I am not, I might not be able to change your Lordships’ minds over the next five to 10 minutes. However, I hope that, as we engage on this Bill—which I hope we will continue doing—these clauses will remain in as we go forward to Report. We should always consider modes of improvement, as well as modes of rejection. I will certainly undertake to have further conversations.

I welcome the noble Lord, Lord Eatwell, on his return from the United States. I understand that he was not at Second Reading, but I will correct the record by saying that I made no reference to the precautionary principle in that debate. It is not my habit to do so. If he finds in Hansard that I did, then I will gladly apologise to him.

I will address the amendments proposed to Clauses 14 and 15, and the excision of these clauses from the Bill. All noble Lords will agree—as I do—that it is vital that we have an independent regulator which commands trust across the political spectrum. This is the view of Her Majesty’s Government. The public rightly expect efficient and independent regulation of the electoral system. We must reflect at all times on the current structures charged with this important responsibility and, where there is a need for change, be prepared to make it. The one thing that will not change is that the Electoral Commission is independent and will remain so.

We believe that the Government’s proposals represent a proportionate approach to reforming the accountability of the Electoral Commission, while respecting its operational independence. I listened very carefully to the noble and learned Lord, Lord Judge, and will examine the Hansard record of his analysis of the clauses. There is no direction in the clause for the Electoral Commission to act in any particular way. There is the requirement to “have regard to” the strategy document —to which I will return later.

Clause 14 seeks to make provisions for the introduction of a strategy and policy statement which will set out guidance which the Electoral Commission “must have regard to” in the discharge of its functions. It is not a direction, as my noble friend Lady Noakes said, in what, under the circumstances, was a somewhat courageous speech and one with which I agreed. She set this out clearly.

It has been claimed that the “duty to have regard” to the statement introduced by the provisions will weaken the independence of the commission. I understand that noble Lords should be concerned about that. It is a perfectly legitimate concern. If that were the case, I would understand where noble Lords were coming from. We do not believe that the duty weakens the independence. It is also argued that the Government are given too much influence. Indeed, it was said that the duty gave “control” over the Electoral Commission’s affairs. Again, in our submission, that is wrong. We strongly reject that characterisation of the measure. This is guidance, not a directive, and, as such, the Electoral Commission will remain operationally independent as a result of this measure. It will be required to “have regard” to the statement in the exercise of its functions. This legal duty does not replace or undermine the commission’s other statutory duties. They will remain.

It is entirely appropriate for the Government and Parliament to provide a steer on electoral policy and ensure that their reforms on electoral law are properly implemented. It is not about meddling with operational enforcement decisions on individual cases or any change in the commission’s statutory duties. By increasing policy emphasis on electoral integrity, however, inter alia the Government are seeking to prevent interference in our democracy from fraud, foreign money and hostile state actors.

At present, the Electoral Commission is not fully held to account by anyone. My noble friend Lord Hayward referred to the issues of family voting in Tower Hamlets, on which I recently read an article by that courageous campaigner for honesty in elections, Councillor Peter Golds, who documents his difficulties in getting the commission to address fully and seriously, as he sees it, the problems presented by this issue. The proposed illustrative document that has been given to noble Lords, for example, asks the Electoral Commission to look into the dangers of fraud and such issues that emerge from family voting. It is reasonable to ask the body tasked with preventing fraud to address the bullying of female voters and to give priority to that.

The statement has a democratic check by being ratified by Parliament, as we discussed on an earlier amendment. Your Lordships have the power to accept or reject these proposals on the statement when it comes forward. The duty to have regard that we are introducing means simply that when carrying out its functions the commission will be required to consider the statement and weigh it up against any other relevant considerations. I do not accept the contention of the noble Lord, Lord Kerslake, and others that a statement is not appropriate for a public body. I agree with my noble friend Lady Noakes in her response to that.

[Lord Kerslake (CB)]

Perhaps I might clarify this point for the Minister. I did not say it applied to any public body. I said it related to the Electoral Commission. There is a critical difference here in its role, its standing and the nature of its accountability. The situation is quite different for other regulatory bodies.

[Lord True (Con)]

I respectfully disagree with the noble Lord on that. The Electoral Commission is a public body and many other such bodies have important duties and activities that impinge on the public and public well-being. I stand by my statement and agree with my noble friend Lady Noakes on that.

The propositions that we are putting forward work in similar ways to other existing statutory duties that require public bodies to have regard to specific considerations in carrying out their functions; for example, the requirement for public bodies to have regard to matters of equality when exercising their functions. The statement will not allow the Government to direct the commission’s decision-making. They—any Government—will not be able to do so. My noble friend Lady Noakes is, again, right.