Elections Bill

Lord McNicol of West Kilbride Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 15th March 2022 Lords Chamber

[Baroness Hayman of Ullock (Lab)]

My Lords, I am speaking to my Amendment 25. In this group there is also Amendment 25A in the name of the noble Lord, Lord Rennard, which is very similar. These two amendments will echo quite a lot of the debate we have had over the last two groups, and I completely echo the words of my noble friend Lord Collins, in his response to the previous group, about many of the concerns we have about this clause.

As we know, Clause 18 concerns notional expenditure on behalf of candidates and others. In the debate we have just had, my noble friend Lord Collins, the noble Lord, Lord Rennard, and others drew attention to the detail of what this clause would mean, how it would potentially work and how election law has changed over time—and not just law. Elections have become more sophisticated and more money is being spent, so we really need to make sure that in future we conduct elections in the right and proper way. The Elections Bill needs to be able to provide that integrity and reassurance as we move forward.

Specifically, my Amendment 25 says:

“The Secretary of State must publish new guidance to candidates on notional expenditure within the period of 12 months”.


Amendment 25A from the noble Lord, Lord Rennard, suggests:

“The Electoral Commission must publish new guidance to candidates”.


To be honest, I do not really mind which; I just think it is important that such guidance is published.

I read the debate in the other place on this part of the Bill. Introducing this clause, the Minister, Kemi Badenoch, said that it

“makes an important clarification to our political finance rules”.

She went on to explain—as did our Minister, the noble Baroness, Lady Scott—that this came from the Supreme Court decision in 2018 after it was

“determined that the rules on notional expenditure for candidates did not contain a test of authorisation”

and

“there were concerns among parties and campaigners that candidates could be liable to report benefits in kind that they did not know about, but could be seen to have benefited from.”

Obviously, there has been a lot of discussion about what that meant in South Thanet and how that has had an impact on political behaviour during elections since.

What came over in particular from the last debate, and is important when looking at what we are talking about now around the new guidance, is the way in which campaigning has increasingly become pressurised on marginal seats. As my noble friend Lord Collins said, that is the case with all parties. He rightly referenced the fact that political income is an area we need to really look at—where it comes from, how our donations are managed and who provides them. This is an area where, if we are not careful, the behaviour of political parties could come into disrepute. I am not pointing the finger at any party, just saying that we need to be very careful around this when drawing up new election law.

Minister Badenoch went on to say that this is why the Government want to make it

“clear that candidates only need to report as notional expenditure benefits in kind—property, goods, services and facilities that are given to the candidate at a discount, or for free—that they have used themselves, or which they or their agent have authorised, directed or encouraged someone else to use on the candidate’s behalf”,

so that “clarity” is provided

“to candidates and their agents on the rules that apply to notional expenditure.”—[Official Report, Commons, Elections Bill Committee, 26/10/21; cols. 299-300.]

In the Minister’s introduction, and later in the debate, the word “clarity” was used a couple of times. If we are talking about clarity, guidance is important. People need to know when any new rules are brought in. As other noble Lords have said, this is adding to complexity. As a candidate or an agent, you need to know exactly what is expected of you, and it needs to be easy to understand.

During a debate on election expenditure in the other place, Craig Mackinlay—who, as we are all aware, was the candidate and is now the MP for South Thanet—agreed with Andrew Bridgen MP that it was worrying that currently

“a candidate in an election could be liable under the law for spending on his behalf that he neither authorised, nor was even aware of.”—[Official Report, Commons, 11/2/19; col. 690.]

I have been a candidate a number of times in local and parliamentary elections—and, once upon a time, in European elections, but of course that will never happen again—and other noble Lords have talked about this. When you are a candidate, you rely an awful lot on your agent. As my noble friend Lord Grocott said, not many people actually want to be an agent; I have managed to dodge it so far. This clarity, this information, about what the guidance will mean and how they are supposed to operate within any new laws is incredibly important.

A number of noble Lords mentioned the Public Administration and Constitutional Affairs Committee’s response to this part of the Bill. The Minister said that the proposed changes in the Bill are broadly welcomed but, as other noble Lords said, there were concerns around this. As the noble Lord, Lord Rennard, said, this included moving forward with clarity—that word again. We need to know where we all stand. The report said:

“The Government’s response to the CSPL report on electoral finance regulation provides no indication of which of its recommendations (not already included in the Bill) the Government is likely to adopt (via amendment), prioritise for consultation or when or how the Government proposes to give legislative effect to recommendations that will not be included in the Bill. The Government should give clarity on its next steps in this regard.”


It would be helpful to have further information. The Government responded to this and said:

“The Elections Bill is bringing forward the key changes to the regulation of expenditure we need to make now, and it already delivers on several of the recommendations made by the CSPL report. The CSPL report puts forward many recommendations that deserve full consideration”.


I would be interested to hear from the Minister which recommendations the Government were referring to. Their response added that

“further work must be done to consider the implications and practicalities of any further changes to complex electoral law.”

It would be helpful if the Minister could update us on any further work in this regard following the Government’s response. If he is unable to provide that information today, it would be very helpful to have it in writing. The other thing that came through from the evidence to the committee was the response by Professor Fisher, who again considered that the term “encouraged by” could lead to confusion. We had a previous debate on this and I think most noble Lords who spoke agreed that “encouraged by” did not provide the clarity that we need. It is used seven times in Clause 18, scattered all the way through it.

Again, we need to make sure that the rules are understood in order for them to be properly complied with, because this is where we came unstuck before. People did not really understand them, which is why we had the issues around Thanet. The noble Lord, Lord Wallace, said that if we are not careful we will constantly be adding complexity in the Bill when what we need in electoral law is exactly the opposite. The noble Lord, Lord Collins, talked about the importance of having consensus when we are looking to change the law on how we conduct our elections.

My amendment would mean that the Secretary of State—and the amendment from the noble Lord, Lord Rennard, would mean that the Electoral Commission—would have to publish new guidance to candidates on the changes. It is important that everyone understands any new responsibilities because we cannot have misunderstanding or misinterpretation. It is not fair on candidates and very much not fair on their agents.

Amendment 30B in the name of my noble friend Lord Collins looks at the threshold for payments in respect of any election expenses. We suggest that the threshold would increase. Section 73 of the Representation of the People Act 1983, which is the section on payment of expenses through election agents, states that:

“Every payment made by an election agent in respect of any election expenses shall, except where less than £20, be vouched for by a bill stating the particulars or by a receipt.”


The Minister may be able to clarify this, but my understanding is that this figure of £20 has not been updated since 1985. Clearly, £20 was worth quite a bit more back in 1985 than it is today.

This is a just a probing amendment to suggest to the Government that they could have another look at the RPA in this area. If you are increasing spending in other areas, this is a simple thing that could be done and our suggestion of £65 in the amendment is really just intended to be a starting point for discussion. Sadly, there is not an awful lot you can buy these days for only £20. I beg to move.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

My Lords, Amendments 25 and 25A appear to be alternatives.

[Lord Rennard (LD)]

My Lords, this debate has shown that the noble Baroness, Lady Hayman, is definitely right that we need guidance on this crucial issue of notional expenditure. Many of us think that we do not necessarily need a change in the law, given that the courts have clarified the existing position and we need further guidance about what those decisions by the Supreme Court and Southwark Crown Court mean in practice for candidates and agents.

I believe that the appropriate body to provide such guidance is the Electoral Commission. That is partly because it can obtain legal advice independent from that of the Government; the commission can obtain advice about the meaning of the law that may be different from the interpretation of the Government of the day. It can advise all parties impartially and fairly. The Government’s view is most likely to coincide entirely with how the party presently in power would like the law to be interpreted, and that is not a good thing in a democracy.