Elections Bill

Lord Wallace of Saltaire Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 17th March 2022 Lords Chamber

[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

My Lords, if this amendment is agreed, I cannot call Amendment 44, because of pre-emption.

[Lord Wallace of Saltaire (LD)]

My Lords, I will speak on whether Clause 25 should stand part, which is grouped with these amendments in an attempt to improve Clause 25. I will begin with some remarks about Part 4 as we have so far examined it.

I came away from Tuesday’s Committee much more worried about the coherence of this Bill than I had been until then. We learned that Clause 18 is there primarily to reverse the court’s judgment in the Thanet election case, although the noble Baroness, Lady Scott, in her reply, attempted to persuade us that it does not really change the law; in which case, the clause is not necessary. We learned that Clause 22 was entirely about the threat to our electoral system posed by a body called Advance Together, which, on examination, fought five seats in the 2019 election and gained in total just over 400 votes. We did not learn the purpose of Clause 24. Indeed, after the Minister’s explanation, I and others were more puzzled about the purpose of this clause than we had been before we started, and worried as to whether there is some underhand objective that we have not yet uncovered.

When reading through Section 88 of PPERA last night, which defines “recognised third parties”, I could find no reference to unincorporated associations as recognised third parties. Can the Minister or his staff kindly inform me before Report whether the inclusion of unincorporated associations in Clause 24 is intended to bring these bodies within this category for the first time or whether they were already covered in existing legislation? I also found in the briefing a reference to permitting only overseas-based unincorporated associations consisting entirely of UK citizens, which is not the wording in the Government’s text.

The Minister gave us to believe that the small group of former Liberal Democrats who formed Advance Together, and then merged it into Renew, represented a major threat to the UK, but that foreign money and foreign interference, most evidently from Russia, do not present any serious threat. The Minister suggested that the paragraphs in the ISC’s Russia report and elsewhere that flag up the seriousness of that threat are little more than “innuendo”. It is astonishing that he can suggest that Russian interference should not be a serious concern to us as we consider this Bill—at this point above all.

Now we have Clause 25, which gives full power to the Secretary of State to add or remove descriptions of third parties from the approved list. I am grateful to the Minister for offering us a government amendment to delete the power to

“make such amendments of this Part as the Secretary of State considers appropriate”,

but this is only because the Government consider that PPERA already provides sufficient authority. As I wade through sections of PPERA to understand the provisions of this Bill, with the occasional reference to the earlier Representation of the People Act, I am repeatedly reminded of the CSPL’s declaration in its report on election finance that there is an “unarguable” case in favour of consolidating and simplifying electoral law.

The Minister must recognise, as he struggles to explain and justify this Bill clause by clause, that it totally fails to consolidate or simplify. The Electoral Commission’s briefing for Second Reading stated, accurately, that the changes in Part 4, including these clauses,

“would add new requirements to laws which many campaigners have said are already complex and hard to understand. The added complexity of these changes could deter some from campaigning at elections ... Voters could therefore ... hear from a narrower range of sources.”

It therefore falls to the Minister to justify the inclusion of Clause 25 and the powers that it gives to the Secretary State, and to explain, as we keep asking, what problem it is intended to resolve. If he cannot persuade us that it is necessary, we shall ask for it to be removed.

[Baroness Meacher (CB)]

My Lords, I support the intention to oppose Clause 25 standing part of the Bill, tabled by the noble Lord, Lord Wallace. In so doing, I also support Amendments 41 and 42, tabled by the noble Lord, Lord Collins of Highbury.

Clause 25 introduces significant delegation of powers in relation to Clause 24, as the noble Lord, Lord Wallace, has indicated. We understood from the Minister last week that the purpose of Clause 24 is to protect the country from electioneering by overseas organisations. I am quite happy to support the Government in that purpose. However, the Minister was unable to assure the Committee last week that non-charitable civil society organisations in this country would remain outside the scope of Clause 24 and therefore also, importantly, of Clause 25. I hope that the Minister can clarify this significant point in his summing up.

I do not want to repeat my concerns about Clauses 24 and 25, which I expressed last Thursday, so will focus solely on the delegated powers in Clause 25, and in so doing declare my interest as a member of the Delegated Powers and Regulatory Reform Committee.

It is concerning that, in Clause 25, the Government have provided wide-ranging powers for Ministers to amend Section 88 of the Political Parties, Elections and Referendums Act 2000 to which Clause 24 applies. In a sense, it feels a little unnatural to be talking about Clause 25 when these two clauses are so very closely aligned and intertwined. The Government need a very good reason to introduce Henry VIII powers under which a Minister can amend an Act of Parliament.

I want to focus on Clause 25(1)(b) in that respect. I am sure that the Minister is aware that the DPRRC has particular concerns about this paragraph, which relates to the list of third-party organisations that can exceed the spending limits contained in Section 94 of PPERA. He may also be aware that, in its memorandum to the DPRRC, the department admits that preventing other categories of third party being able to campaign has the potential to impinge on freedom of expression under Article 10 of the ECHR and the right to enjoy a free election under Article 3 of the first protocol of the convention. The department has argued that it is important that, if a legitimate category of third party emerges, it can be added quickly to the legitimate categories to ensure that these restrictions on campaigning remain proportionate and no more extensive than is necessary to meet the aim of preventing campaigning by those with no genuine stake in the UK. As I said, I understand that objective, but this clause seems to go much wider and, with the delegated powers in Clause 25, we have no idea where it may go. The DPRRC is clear that the Minister needs to explain the need for Ministers to have Henry VIII powers to remove third parties. If Ministers are unable to provide a satisfactory explanation, these powers are inappropriate. That is the view of the DPRRC, not my view—I am simply a member.

I have brought this issue to the Floor of the Committee because if the Minister can explain the need for these Henry VIII powers in Clause 25 it may help noble Lords when deciding whether to bring back this issue on Report. I hope the Minister will be able to assure us that organisations based in the UK and which are not controlled from overseas will be clearly excluded by the Bill from Clauses 24 and Clause 25, thus taking fully into account the concerns of the DPRRC.

--- Later in debate ---

[Lord True (Con)]

All those bodies in the current list in Section 88(2) of PPERA are carved out, whatever their description. We will come on to the concerns raised about what is in Clause 25, but I repeat that assurance. In saying that, I understand some of the suspicions and concerns raised by noble Lords.

I do not wish to be adversarial in any way, but the other thing I would say in starting is this. As I have said several times in these discussions, I agree that, one day, ideally, a consolidation Bill would be highly desirable. I fully accept that. There are issues here that are relatively urgent, whether we are agree or not: for example, around foreign money, digital campaigning and so on and so forth. The Government are seeking to make progress on those, but it is not a zero-sum game. In presenting this legislation—by the way, as a Minister who has himself had to try to get his mind round all the various references and cross-references in the Bill—I am not in any way saying that a consolidation Bill, one day, is not a desirable end. Anybody involved in the political world would agree.

Clause 25 is really what this debate is about. The potential problems and suspicions—raised, for example, by the noble Viscount—arise from the perceived view of Clause 25 that has been expressed in this debate. Perhaps I could deal with the first part, which is about potentially adding new categories. We are conscious that, as the world evolves, new legitimate categories of third parties that are not currently on the list might emerge. Because they are not protected by the carve-out in Section 88(2), they might be significantly restricted in their ability to campaign by this provision if they could not be added to the list quickly. That is why Clause 25 makes provision for the amendment of the list of eligible categories of third-party campaigns in PPERA, to add a new category of campaigner that might emerge. That would allow any Government, not just this Government, to amend the list to enable new groups or styles of campaigners to take part. Parliament would have a lock on that, via the affirmative resolution procedure.

[Lord Wallace of Saltaire (LD)]

I simply wish to congratulate the Minister on following so very clearly the precautionary principle in legislating here for something that has not yet happened and might happen, because it would be useful to have this in place if it did happen. That is what I understand him to be saying.

[Lord True (Con)]

I am saying that there is a practical possibility that this might arise. I take it that, however expressed, that was assent from those Benches, and I am grateful for that.

These provisions will ensure that we can be responsive to the emergence of new categories of third parties, or changes to the legal description of existing categories of third parties—there is some legal language in Section 88(2) —so that they are not unduly restricted from campaigning and participating in our democracy in the future. That is added with a parliamentary lock.

I am grateful for the engagement on the points we come to next; I have heard the concerns of the Liberal Democrat and other Benches, most notably, as we heard again in the debate today, from the party opposite. I thank all who have spoken to me on this subject, and the noble Lord, Lord Collins of Highbury, for the points he made on Clause 25 regarding the power to remove—the specific subject of his amendment—or vary the list.

I hope that part of making progress on a Bill is making progress, but it is the person at the Dispatch Box who has the responsibility to listen—my job as a Minister. I hope we can go forward with that in mind.

The Government have listened to the concerns raised. I pay great respect to the Delegated Powers and Regulatory Reform Committee’s recent report on the subject of Ministers having the power to remove entries from the list of eligible categories of third-party campaigners in Section 88(2). That is why I asked my officials to meet, as the noble Lord said, with the TUC and TULO on 7 March to discuss their concerns.

Although powers to update lists in legislation are not unusual—and indeed can be important where, either due to changes in legal definitions or oversight, Governments may need to respond quickly—we acknowledge the concerns that have been expressed. The Government have heard the concerns around whether the power in Clause 25 could be abused by a future Government. I reassure the noble Lord and others who have spoken that before the next stage of the Bill I intend to consider at the very least what further safeguards could be added to the clause, along the lines of, for example, Amendments 42 and 45 from the noble Lord, relating to the role of the Electoral Commission. I have heard the force of opinion in the Committee on these provisions.