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Election Law Reform

Work and Pensions – in the House of Commons at 7:10 pm on 11th February 2019.

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Motion made, and Question proposed, That this House do now adjourn.—(Paul Maynard.)

Photo of Craig Mackinlay Craig Mackinlay Conservative, South Thanet 7:35 pm, 11th February 2019

I am pleased to be afforded the Floor of the House for this Adjournment debate on the reform of election law. Many might ask, “What does it matter?” Naysayers might say that this is a debate in defence of ourselves. Well, perhaps, but this is serious. Our election law is a mess, leaving candidates and agents exposed as never before to the real risk of criminal prosecution, so this cannot wait—it needs solving now.

Election law is important, as it defines the type of democratic institutions that we have. The playing field must be fair and equal, and seen to be so, and the results of elections need to be respected as just and fair. That must be encapsulated in our election law.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Human Rights), Shadow DUP Spokesperson (Health)

I thank the hon. Gentleman for giving way before he gets into the thrust of his contribution. I asked his permission to intervene beforehand.

In Northern Ireland we have made many, many changes to electoral law, particularly for stricter controls on registration and identification. That is not the subject of this debate, but does the hon. Gentleman agree on the need for voter ID in the mainland? We have done it in Northern Ireland, and it has done away with a lot of discrepancies in voting. That may be a separate issue but, none the less, does he agree it is important?

Photo of Craig Mackinlay Craig Mackinlay Conservative, South Thanet

I thank the hon. Gentleman. He raises a wider debate about voter registration, and I would not object to its application on the mainland. I see nothing wrong with every single voter having a unique identifying code so that people cannot vote in two places, for instance. I would welcome moves towards that.

Through no design of mine, and for obvious reasons, I have come over the past two years to know, rather too closely, the intricacies of election law. I do not intend my contribution to descend into a personal rant against the Electoral Commission, the Crown Prosecution Service and Kent police, which led me to a three-month trial and subsequent acquittal, but I hope some good can come from my experiences by being a catalyst for the reform of election law, which was recently described by a retired professor of election law, Bob Watt, as a “compost heap”.

We have two key statutes: the Political Parties, Elections and Referendums Act 2000, often referred to as the PPERA; and the Representation of the People Act 1983, often called the RPA. The PPERA was enacted to reflect the reality of modern politics, and it created the Electoral Commission, a statutory body with powers over election processes and guidance setting for candidates, agents, political parties and, importantly, local authority electoral staff.

The Electoral Commission has a budget of £17 million and employs 134 staff. It oversees and controls national party spending, donations and reporting and the regulation of third-party campaigners, among other things. Members may not be aware that it is from the PPERA that ballot papers have thereafter had the candidate’s name and the logo of the national political party for whom they are standing. That was a recognition of the reality that the electorate vote for political parties. Few of us in this House would be so bold as to claim that the electorate vote for us solely as individuals—if only that were true; they vote in larger part for the party messages, for the perceptions they have of party leaders and for the national party manifestos. This legislation set spending limits of close to £20 million for registered political parties to spend across the UK in the regulated period of a year prior to a planned and forecast election as envisaged by the Fixed-term Parliaments Act 2011.

We then have the law that is more relevant to us. It is relevant to candidates and agents across elections, no matter what their type, be they parliamentary, Assembly Member, council, mayoral or police and crime commissioner elections. I refer to the Representation of the People Act 1983, which is the legislation I would like to focus upon this evening. I wish to focus on two small sections—sections 90C and 90ZA. It was on the construction and interpretation of these two sections that the entire case against me was founded, and it is from these things that we need to learn and change. In broad terms, the 1983 Act governs candidates’ returns, spending limits, timings, agents’ and candidates’ responsibilities, and, importantly, various offences, notably against those not authorised to spend money on a campaign. There is a clear prohibition in section 75 of the Act, with punitive criminal sanctions against those who spend without the authority of the election agent.

Those small sections are detailed and they are often not understood, so I will advance to the House what they mean. Section 90ZA explains the common meaning of “election expenses”. Subsection (4) outlines the concept of “incurred and authorisation”, and this accords to the long-held view that election expenses can be so only if incurred or authorised by a candidate or agent. This interpretation, relied on by all political parties, has roots going back to 1868 legislation in another form. If not authorised, an offence can be committed by the person incurring expenses under section 75 of the Act. This seemingly clear interpretation was to prevent those who might want to interfere with an election from doing so—or else face criminal proceedings. It also provided candidates and agents with the power to control what is spent on the campaign they are legally responsible for.

Section 90C explains what to do if goods, services or facilities are provided free or at a discount, for instance, where a friendly printer provides printed material, perhaps as a party supporter. It is clear and people fully understood what it was there for; the concept was simple. The section dictates that the item, service or facility given free or at an undervalue should form part of the election expense return at a proper market value rate, subject to some simple de minimis rules.

My case passed through a long trail of court interpretations before criminal trial. At an early application to dismiss, which was rejected, we argued that the normal interpretation of section 90C—the discount or free provision—could apply towards a candidate’s election expenses only if such a good, service or facility had been properly authorised in the first place by the candidate or agent under the normal authorising provisions of section 90ZA. It has long been the understanding of colleagues in this House and experienced election law Queen’s counsel, some of whom write the textbook on election law, that the rules always intended that agents were responsible for the finances of election campaigns. Candidates will be focused on meeting electors and winning votes during the campaign period—we will all be familiar with that. The law intended agents to be involved in all the spending decisions in a campaign, either by spending themselves or permitting someone else to spend on their behalf. They, or the candidate, are meant to authorise any spending on the campaign, so that all expenditure goes through them. As a result, the agent is then liable to produce a full, “true” return of all this spending and be responsible for keeping within the legal spending limits.

The Act also takes steps to try to ensure that others are dissuaded from spending on an election campaign without this authorisation from the agent or candidate. Section 73(6) and section 75 provide for offences for people who make payments for the campaign or who spend on campaigning without the agent’s express permission. Anyone spending or making such payments without authorisation—written authorisation should be the norm—risks committing an offence. If others are willing to take the risk of committing an offence by spending or paying expenses without authorisation from the agent, that would be a criminal matter for them. This does not mean there is a free pass for people to flout spending limits by simply refusing to give authorisation for spending which others decide to incur anyway. So it is clear that the baton of the risk of illegal activity passes from the agent or candidate to the individual deciding to incur the unauthorised expense. We all have some strong and great supporters in our constituencies who are keen to help, but I expect that none would flout the wishes of the candidate and agent and decide to place themselves in jeopardy. Then there is a deterrent to third parties incurring expenses without authorisation.

The judge in an early part of my ordeal did not agree with this long-held interpretation and interpreted that the legislation should mean that anything used to the benefit of a candidate or to denigrate their opponent, used either by the candidate or, more worryingly, simply “on their behalf”, should be included in a candidate spending return, regardless of whether it was authorised or not. This was appealed to the Court of Appeal, in front of the Lord Chief Justice. That appeal was successful and the normal ground was seemingly restored.

The Crown Prosecution Service, with the Electoral Commission attaching itself as an interested party, appealed the Appeal Court decision to the Supreme Court. That appeal was heard on 23 May 2018, with judgment given on 25 July last year. In summary, that decision overturned the Appeal Court decision and has to stand as the ultimate authority on the interpretation of sections 90C and 90ZA of the 1983 Act.

Photo of Andrew Bridgen Andrew Bridgen Conservative, North West Leicestershire

I wish to recap. Worryingly, 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.

Photo of Craig Mackinlay Craig Mackinlay Conservative, South Thanet

I am grateful to my hon. Friend, as he has encapsulated the issue in a few brief sentences. I will be expanding on that in the remainder of the debate.

The Supreme Court decision ruled that under section 90C free goods, services or facilities for the “use” or “benefit” of the candidate, arranged either by them or on their behalf, must be included in an election return. In addition, and this goes to the point made by my hon. Friend, authorisation or even, it would seem, full knowledge of the candidate or agent is not required, and only active refusal might—I stress might—be the only possible defence. It is difficult to see how that could be done if the candidate or agent is unaware of the matter concerned or the costs involved.

The Electoral Commission does not come off unscathed by that Supreme Court judgment. Paragraph 28 of it states that

“the Electoral Commission's helpful guidance documents issued over several years, whilst they certainly both address the question of apportionment of expenditure between party and candidate, and deal with the concept of free or discounted services, nowhere appear to alert readers to the possible link between them, nor to the application of the notional expenditure rules to what must sometimes be a difficult exercise of separating local from national expenditure.”

Let us overlay that statement about the Electoral Commission with some of its own written output on the launch of a consultation on a new draft code of practice on 10 September 2018:

“We hope these Codes will make it easier for you to submit your own or your party’s returns, simplifying the process and removing any blurred lines that there might have been”.

It goes on:

“In responding to this consultation you’ll help us to further demystify the process and remove any confusion that you or your party may have over the process of campaign reporting.”

So, we have an acknowledgement by the Electoral Commission of problems in election law and it was admonished, to a degree, by the Supreme Court.

The only reference in the draft code published in September last year to the Supreme Court judgment is a single paragraph on page 4 of a 23-page document, which is as yet without statutory force. That single paragraph says:

“This notional spending falls to be declared as election expenses in the candidate’s return even if the items provided have not been authorised by the candidate, the candidate’s agent or someone authorised by either or both of them, R v Mackinlay and others (Respondents), UKSC 42, 25 July 2018.”

That is it: this fundamental change in interpretation encapsulated in a few lines in a draft code of practice, with no guidance as to what it might mean in practice. If the hope was, to use the Electoral Commission’s words, to demystify and remove blurred lines, the Electoral Commission has comprehensively failed.

Photo of Mark Harper Mark Harper Conservative, Forest of Dean

I think my hon. Friend has answered this question, but to pick up the point made by my hon. Friend Andrew Bridgen, did the Electoral Commission suggest in the draft code of conduct how a candidate was supposed to know, or to be able to account for, that information in any practical way? Or did it leave that open?

Photo of Craig Mackinlay Craig Mackinlay Conservative, South Thanet

My right hon. Friend highlights exactly what he might have expected, but I am afraid he will be disappointed, because that is it. There is not one additional word of guidance as to how this change of interpretation might be administered on the proper battleground of elections.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

The hon. Gentleman is making an important and helpful speech. Was the issue of whether the money was national spend or local spend within a political party relevant to the finding he is describing? For example, some Conservative national spend for an individual constituency might not have been authorised by the agent. Was that the reason the decision was made in the way that it was?

Photo of Craig Mackinlay Craig Mackinlay Conservative, South Thanet

The hon. Gentleman highlights the issue at stake, which is at the core of the Supreme Court judgment, but we are still left with this ambiguity as what others might do that the candidate might not know about. Matters of which the candidate has little to no knowledge, and activity that they certainly had not authorised, would have to be part of an election return.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

I have great sympathy for the ordeal, as he described it, that the hon. Gentleman has gone through. We all have experience of elections and agents. The central point that he has indicated is really important: individual authorisation should be obtained from the individuals concerned. That requirement should be adhered to and, if that has not happened, that is deeply regrettable.

Photo of Craig Mackinlay Craig Mackinlay Conservative, South Thanet

The hon. Gentleman makes reference to the full understanding of election law dating back to 1868 and in its various guises since. It is only now that the Supreme Court has overturned what we had all accepted as the normal happenings and procedures of election law for all these years. It has confounded many election specialists.

Let me pick up where I left off. As yet, the draft code has no statutory force. In just 51 days, we will be appointing candidates for local elections and in 80 days the local elections will be taking place throughout the country, possibly in just about every constituency. The Electoral Commission currently proposes to put thousands of local election candidates into battle with no clue as to what they should do to stay properly within the newly interpreted law.

Photo of Alex Chalk Alex Chalk Conservative, Cheltenham

Does my hon. Friend share my concern that these issues, with which the Electoral Commission is grappling very late in the day, have been known to us for many years? Regrettably, the Electoral Commission has dragged its feet in addressing these issues. It should do so in a way that provides clarity and certainty for people who could otherwise be liable to prosecution.

Photo of Craig Mackinlay Craig Mackinlay Conservative, South Thanet

I thank my hon. Friend for his intervention. There is one person in this House who has been liable to prosecution: I have had the full force of that.

As I shall ask a number of times in my speech, is the Electoral Commission fit for purpose? Was the commission’s preferred interpretation of the relevant sections of the 1983 Act, which it used in support of my prosecution and, it seems, for no other obvious purpose, included in the 2015 guidance for candidates and agents? No, it does not appear anywhere. Did it find its way into the revised guidance for the 2017 general election, under which everybody in this House fought for election? No, it does not appear anywhere. Armed with the result of the Supreme Court judgment, to which the Electoral Commission was attached as an interested party, did the commission finally incorporate it into its most recent guidance for the local elections in England in May 2019? Did it incorporate within that guidance the definitive Supreme Court interpretation of sections 90C and 90ZA of the 1983 Act? I think you know the answer, Madam Deputy Speaker, and it is no. Why did the Electoral Commission intervene, at public expense, if it had no intention of advising candidates and agents, on pain of criminal prosecution, as to the proper interpretation of law following the judgment in its favour? Is the Electoral Commission incapable of speaking with itself? I ask once more: is it fit for purpose at all?

A huge grey area has now opened up. What if someone decides, without recourse to the candidate or agent for authorisation, to print and deliver thousands of leaflets saying “Vote for X”? This could cost the individual thousands of pounds, which they decide to pay themselves. Once it is printed and delivered, they inform the candidate and agent about the unwanted help that they have provided and paid for. Unknown to them is the fact that the candidate has no headroom left in their election budget for this kind of spending, which would breach the legal spending limit. The leaflets are clearly for the benefit of the candidate and they have obviously been used. They are notional, as they are free, because the third party has paid for them. The Supreme Court’s new interpretation of section 90C requires that that cost must be recorded, and in the circumstances that would breach the spending limit for the candidate and agent, with all that that might entail.

Candidates and agents need to know the risks they face. Clear warnings should be given in Electoral Commission guidance. Remember that it is candidates and agents who face criminal sanctions if spending limits are breached. Under the Supreme Court’s judgment, they lose control of spending should anyone else decide to offer their support for free, whether it is wanted or not. How can anyone hope to budget for an election campaign under such a system? We all need clarity from the Electoral Commission. It pushed for this interpretation of the law and won at the Supreme Court, so how do we deal with it in practice? At the next election, might people provide free goods and services on behalf of, say, Jeremy Corbyn, or my right hon. Friend Mrs May, to the extent that they breach their spending limits? Will we then find them massively embroiled in police investigations and court cases? There are those who may decide to take such action and spend money simply to cause chaos. The Electoral Commission has yet to step up to the plate and explain how the interpretation that it pushed for and won on in the Supreme Court will play out in practice.

I shall dwell only briefly on some of the errors that have put people to threat of financial and criminal sanction, at the doors of the commission and its guidance. The commission offers, in its own words, “bespoke advice” to campaigners and parties. Let me highlight but one recent publicised example. Vote Leave sought that bespoke advice, on offer for free, in respect of activities during the referendum campaign. It seems that Vote Leave acted on that advice and has now been accused of breaking the law—by acting on Electoral Commission advice, which is now considered to be the wrong advice. You could barely make it up.

Battle buses have probably been part of election campaigning since buses were invented. An investigation into the Conservative party concluded with a report published on 16 March 2017 and led to fines. No similar investigation was made into the use of battle buses by any other party or by any third-party campaigners. There appears to be a lack of even-handedness in the activities of the commission across much of what it does and whom it pursues. Its status and reputation are not helped when its current director of regulation has posted anti-Conservative social media messages in the past and has provided witness statements for court use against Conservatives, including me, but against no other political party.

All political parties and candidates use correx boards—we are all familiar with them in this House. They have become the usual stock in trade at all elections. These boards are rugged—we are familiar with their construction—and would last for many years, save for the inevitable criminal damage, I am sorry to say, that characterises many modern election campaigns. Across all of these documents—of 2015, 2017, and 2019—is there one word of advice on how correx boards should be treated and how criminal damage should be reconciled and accounted for? Everyone will be familiar with my answer by now—it is no. There is not one word of advice.

The Electoral Commission offered substantial evidence during my criminal trial. Its view was that correx boards should be written off and recorded in full at the first election that they are used. I can only say, “Really?” Then say so in published guidance. Let us examine what its current perceived position really means. Let us say that successful candidate X wins in a safe seat that is likely to be held for many years. That is common for many in this House. If the boards were to be expensed through the election return at the first outing, at the second outing, there would be nothing to declare because they cannot be counted twice. The new Opposition candidate at the second election would be at an immediate disadvantage on needing to buy expensive correx boards just to keep up, while the sitting MP would have a zero cost to declare, allowing a spending advantage, as budget could be used for additional leaflets or other election promotions. I ask again: is the Electoral Commission fit for purpose? Does it actually understand what it is there to regulate?

Let me give a few examples of the perversity of the law and the situation we now find ourselves in following the Supreme Court judgment. This would certainly apply should we face—heaven forbid—a premature general election. What would be the status of a supporter—or, probably more accurately, a spoiler—deciding to hire an aircraft with a trailing banner of support which is not wanted or assented to by the candidate or agent? The benefit test and the on behalf test under the Supreme Court ruling would have been met, the candidate would probably have seen it and, as such, they would need to account for it as an election cost, potentially exceeding their election budget and placing themselves under threat of prosecution under the criminal code. That would mean a loss of seat, fraud charges, a criminal record, costs and loss of any professional qualifications—potential ruination.

How would senior members of a party possibly tour the country at an election, as is the usual and expected standard practice? This would be deemed, under the benefit test under the Supreme Court, to be in support of the candidate in the particular constituency visited. The Nicola Sturgeon helicopter alone would break the budget of the candidate visited, as would the security and travel costs for the PM or the Leader of the Opposition.

I have saved the most perverse example, which is relevant to this age of digital campaigning, until last. What if a foreign national or hostile foreign Government were to spend on Facebook advertising in support of—or denigration of—a candidate but it is entirely unwanted by that candidate? The benefit and use tests under the Supreme Court ruling would have been met. If the candidate were able to obtain the cost of the advertising from Facebook and find who placed it—in itself a tall order—how many impressions would be relevant? Were the impressions seen by non-voting businesses or by minors, they would not be an election cost, but impressions viewed by those of voting age would. However, the law requires and Election Commission guidance states that an honest assessment needs to be made. Under the newly interpreted understanding of section 90C of the 1983 Act, an honest assessment would need to be made. Might this pitch the election expenditure over the limit, with all that follows? The double entry of election expenses requires, at all times, the identification of donors. So, madly and perversely, the candidate could find themselves in a double illegality because a second illegal activity would be deemed to have taken place by the recognition and deemed acceptance of an illegal foreign donation.

It is very easy to speak in an Adjournment debate just to have a moan, but tonight I wish to conclude with some solutions—I have a number of them. Might higher local candidate spending limits and lower national party spending limits be the answer, so that any interpretative complications at the margins would at least allow sufficient latitude for the candidate to be on the correct side of the law and spending limits? Legislative change needs to be forthcoming—it is urgent; it is needed almost within days. I have proposed a most simple and elegant solution. It is available to Ministers under a simple statutory instrument, which I recommend be passed with all haste.

Schedule 4A of the 1983 Act lists what are election expenses under part 1 and what are not election expenses under part 2—for instance, if a candidate drives themselves around in their own car. The Secretary of State has wide powers under section 15 of the Act to make orders to add or subtract from parts 1 and 2. A simple addition, in these words, to part 1 would clarify the law and revert matters to what I believe Parliament always obviously intended under the Act. It reads:

“Notwithstanding that a matter might fall to be included within Part 1”— that is the “what is”—

“of this schedule because of section 90C of this Act”— the deeming provision that the Supreme Court has now come to—

“it would only be deemed an election expense if section 90ZA(4) also applies.”

It is section 90ZA(4) that requires authorisation by an agent. In easy terms, this would restore, within three-and-a-half lines, the position that election expenses can only be so if properly authorised by a candidate, agent or somebody properly authorised by them. With this in place, we can start to unload what has been described as the compost heap of election law in due course and replace it in the longer term with legislation that is fit for purpose. But candidates and agents deserve protection right now.

Photo of Jonathan Lord Jonathan Lord Conservative, Woking

I am fortunate to have an excellent agent, Simon Ashall, who is fully trained, but—my hon. Friend has brought this issue out in his excellent and important speech—even he is in a muddle about some aspects of our current electoral law. There were 3,304 candidates at the last general election, and only a few hundred, at most, will have had a professional agent. A really good and experienced agent does not feel that he can be on top of things. My hon. Friend is absolutely right. We need robust and effective electoral law and regulation, but it also needs to be simplified, fair-handed and clear. I thank him for bringing this debate to the House.

Photo of Craig Mackinlay Craig Mackinlay Conservative, South Thanet

I thank my hon. Friend for those robust and powerful words. As he describes, when experienced election agents treat these laws with fear, this is not a position by which any political party will be able to recruit election agents in the future. The barriers should be clear. One should know where the RPA or the PPERA kicks in. But, as my hon. Friend says, how can anybody know what cannot be known? Those are the realms that we are now in.

Candidates and agents deserve protection. There are elections in 80 days’ time and nominations for candidates close in just 51 days. I ask the Minister to act urgently, with that simple proposed statutory instrument of three-and-a-half lines, to bring clarity to the law and protection for all candidates and agents.

Photo of Alex Chalk Alex Chalk Conservative, Cheltenham 8:11 pm, 11th February 2019

I thank my hon. Friend Craig Mackinlay not only for giving an excellent speech, but for making such an important contribution to this critical field. People watching this from the Public Gallery, or perhaps reading the debate later, may be surprised to learn that these issues are of such seriousness that if candidates or their agents get them wrong, there is a decent possibility that the matter will be resolved with an individual standing up in court, potentially at risk of losing his liberty, his reputation and, indeed, his livelihood. If that is the consequence, it is critical that the legal landscape is clear, and I am afraid that I respectfully agree that it is not clear.

Let me give the House just one small example of how we find ourselves in a situation where people’s campaigning activity might owe more to their appetite for risk than to the correct campaigning message. In 2017 in Cheltenham, one of the issues was whether I should be putting out a leaflet that mentioned Cheltenham repeatedly throughout. Under one view, if it was simply a national message that would apply to Cheltenham, it could be national expenditure. But under another view, it could be allocated as local expenditure. People watching this should understand that if someone gets that judgment wrong, they could end up being prosecuted for breaking their limit.

I thought that there was a risk involved in allocating that as a national spend so I declined to do so, but others took an entirely different view, mentioned Cheltenham a lot and simply allocated the spending as a national spend. It turns out, however, that the Electoral Commission has decided after the event—through these provisional codes of conduct—that circumstances where the constituency is mentioned should be classed as a local expense. Well, if that is right, the implications are absolutely enormous.

My hon. Friend has already delivered a devastating critique of the Electoral Commission, but one of my criticisms is that it is so slow to act. It knew about this situation in 2015, and yet two years later, when it came to the 2017 election, had it sorted the situation out? No. Had it provided any guidance? No. Candidates like me were simply left to fend for ourselves and make a judgment based on our appetite for risk. I had zero appetite for risk, so I took a cautious approach; others did not, and the net effect was that there was not a level playing field. If the Electoral Commission is not there to ensure a level playing field, what on earth is it there to do?

Photo of Ian Lucas Ian Lucas Labour, Wrexham

The hon. Gentleman is making a very important point. I am a member of the Select Committee on Digital, Culture, Media and Sport, and I am particularly interested in this debate because of the inquiry that we have been carrying out into fake news. One issue that is crucial in all this, but that we have not really discussed today, is the advent of social media campaigning. If we are talking about not being up to speed, I have been on a huge learning journey on the Committee since I was re-elected in 2017. Frankly, I am sure that most of the Members of the House will not be aware of the scale of change that has happened in this area in recent years. The issue regarding local and national spend that the hon. Gentleman mentioned is just one of those changes. We need urgently to reform the law to take account of what actually happens in campaigns today.

Photo of Alex Chalk Alex Chalk Conservative, Cheltenham

The hon. Gentleman makes a good and fair point, but I would say that the law will inevitably struggle to keep up with every last twist and turn. That is one of the reasons that we need to have an Electoral Commission that is agile and nimble, and can provide assistance to candidates. My first criticism of the Electoral Commission is that it has singularly failed to show that agility and nimbleness. That is not simply an academic criticism; it is echoed in how elections are run, and it means that we do not have a level playing field.

Photo of Mark Harper Mark Harper Conservative, Forest of Dean

I think that the situation is actually slightly worse than my hon. Friend says. When listening to the speech of our hon. Friend Craig Mackinlay, it struck me that the Electoral Commission had been quite nimble and agile in some ways, in the sense that it decided to back a legal action that made the current position more complicated and less straightforward. What it actually should have been doing was being less nimble and sticking to the existing understood provisions in the law, rather than trying to change them. There is enough change in the system, as Ian C. Lucas says, without muddying up things that everyone in this House thought were very clear.

Photo of Alex Chalk Alex Chalk Conservative, Cheltenham

The Electoral Commission needs to do two things. First, it needs to be nimble and agile in responding to developments in campaigning practice. Secondly, it needs to show judgment when matters come before its desk. That judgment means using common sense, but it also means being scrupulously impartial and scrupulously independent. That is not just a statement of the obvious. It is something that is set out in the code of conduct for electoral commissioners, which says:

“Commissioners, and the Commission as a body, are accountable to Parliament. Within the Commission, Commissioners are accountable to the Chair. Commissioners are expected to act at all times to further the Commission’s aims and objectives, and uphold its impartiality.”

Impartiality is key. Section 2 on conflicts of interest goes on to say:

“The failure to declare an interest and then act appropriately can affect the validity of a decision. The test in all matters is—would a fair-minded and informed observer conclude that there is a real possibility of bias? The issue is not just whether there is bias, but instead could there be a reasonable suspicion of bias? Decisions must be made in an impartial way without any opinions being formed beforehand”.

And yet we have an extraordinary situation whereby the director of regulation of the Electoral Commission—the person who comments on the fines imposed on political parties, and who, perhaps more than anyone else, should be impartial and be perceived to be impartial—wrote on Facebook when David Cameron became Prime Minister:

“Just can’t understand what people were thinking—do they not remember the Tories before?”

She went on to say that she

“doesn’t want to live under a Tory government.”

She also wrote that she could “not believe” that she lives

“under a Tory PM again! What is wrong with people? Grrr! Words have failed me.”

This is the person who is making decisions on whether to proceed with prosecutions or investigations against my hon. Friend. How on earth does that satisfy the test? I remind the House that the test asks

“would a fair-minded and informed observer conclude that there is a real possibility of bias? The issue is not just whether there is bias, but instead could there be a reasonable suspicion of bias?”

Well, if that test is not crossed in this case, what on earth is the point of the Electoral Commission?

Photo of Chloe Smith Chloe Smith The Parliamentary Secretary, Cabinet Office, Assistant Whip 8:19 pm, 11th February 2019

It is a pleasure to be here with you tonight, Mr Deputy Speaker. I thank my hon. Friend Craig Mackinlay for raising this issue. I am glad that we have been able to have a lengthy debate in which to fully understand these matters. He has raised a number of important points, and I am glad of the opportunity to respond. I also thank my hon. Friend Alex Chalk for adding his remarks, and all those who have done so through interventions.

First, I do recognise the very difficult time that my hon. Friend the Member for South Thanet has recently gone through. I hope that he takes solace not only from his acquittal but from the further remarks that the judge went on to make about the good faith in which my hon. Friend was operating. It must be said, however, that while he was acquitted, one person in the case was found guilty of breaching electoral spending rules. The rules that govern the spending of political parties and candidates at elections are important. They provide for a level playing field, as has been discussed, both for parties and candidates. The extent of their importance and the seriousness of any breach can be seen in the judge’s remarks during sentencing on the other part of the case. I will not say anything further tonight on the details of that case, but I do want to address the points on electoral law raised by my hon. Friend. The first of those concerns the Supreme Court judgment on notional expenditure, and the second touches on the divide between candidate and party expenditure. A few other points have been raised, but I will focus on those raised by my hon. Friend.

I should say at the outset that the laws that govern our elections are an integral part of the UK’s democratic framework and therefore something that we should be proud of, respect, protect, and aim to promote. They ensure that there is a level playing field for all candidates, parties and campaigners participating in UK elections, provide a level of protection in regulating the registration of campaigners and parties, ensure that election-related expenses are accounted for, and provide checks and balances. In addition, the Electoral Commission, as the regulator, plays an important role in the electoral framework to ensure that candidates, parties and campaigners are complying with the law.

Let me turn first to my hon. Friend’s point about his disagreement with the Supreme Court’s ruling that there should be no additional requirement for a candidate or an agent to authorise the provisions of free or discounted goods or services. He speaks of amending the primary legislation that governs this point and proposes that it could be amended by way of a statutory instrument so that authorisation becomes required in both types of case. The Government are considering this judgment very carefully and will continue to do so, as will I, in the light of the arguments that have been put tonight. There are serious implications for the law on notional expenditure for electoral candidates. We will continue to talk to the political parties to understand the implications for future campaigns and to consider potential solutions. Indeed, I will be discussing this only tomorrow with a cross-party delegation from the other House.

However, one point I would make tonight is on whether this could or should be done through primary or through secondary legislation. That deserves some consideration. It may not be appropriate, entirely, to seek to amend the primary legislation, as proposed, through the use of the order-making power that is found, as my hon. Friend set out, in paragraph 15 of schedule 4A to the RPA 1983. That schedule sets out the general categories of election expenses. His proposed changes would be a fundamental change to the meaning and effect of notional expenditure provisions in that legislation. It is therefore a fair consideration that any such amendment should be done by primary legislation rather than by an order-making power. I offer that to the House in terms of considering the complexity of the change that we might be looking at.

Photo of Mark Harper Mark Harper Conservative, Forest of Dean

I approach this matter with care, as I have been in my hon. Friend’s position in the past and know how complex this legislation is. May I just probe her on the answer she is giving to my hon. Friend Craig Mackinlay? I thought that his solution was not actually making a fundamental change but putting the legislation back to what we all thought it was, and what I think Members had thought they were doing when they legislated in the first place.

Photo of Mark Harper Mark Harper Conservative, Forest of Dean

I see that my hon. Friend is nodding. I do not think that he is suggesting using order-making powers to make a big change but saying that we should use those order-making powers to put the legislation back to what we all thought it was before the justices in the Supreme Court made their decision last July.

Photo of Chloe Smith Chloe Smith The Parliamentary Secretary, Cabinet Office, Assistant Whip

I thank my right hon. Friend. As he says, he has stood at the Dispatch Box in this role, and he, too, will have grappled with the intricacies of the RPA, the PPERA, and more besides. I understand his point, which I would answer by way of an example. Only tonight, I have just come from leading a statutory instrument debate on a further election expenses order. I am a very lucky Minister. I have had the opportunity to be part of three of four election-related debates in only one day. That measure was perhaps a more straightforward example of candidates’ electoral spending limits. We therefore have, at this very moment, some very practical examples before the House of what I would suggest is the right use of that order-making power. That was a different order of thing, I would suggest to my right hon. Friend, than even the way that he characterises this proposed change. We do need to consider whether such a thing should be done by order-making or in primary legislation. Whatever the genesis of the problem—whether it came from the Supreme Court or from a different source—it is right that we give it that consideration.

Photo of Mark Harper Mark Harper Conservative, Forest of Dean

Can I just check the Government’s position on this? I know what the view of my hon. Friend the Member for South Thanet is—that the position was clear before last year and the Supreme Court’s decision in July changed the understanding of the position. Is it the Government’s understanding that before the Supreme Court’s decision, the law was clear, as my hon. Friend set it out, and then the Supreme Court changed everyone’s interpretation of it? In other words, do the Government think that there is something that we need to fix, or do they think that the Supreme Court just set out what everyone thought the law was and therefore we do not need to do anything to fix it?

Photo of Chloe Smith Chloe Smith The Parliamentary Secretary, Cabinet Office, Assistant Whip

I think it is fair to say that the Government certainly recognise that the position has been brought into a lack of clarity. The net position right now is that candidates and agents may well be seeking a clearer understanding, and so the question is how to help to provide that. I will come on to ways of doing so.

I want to turn briefly to the arguments put by my hon. Friend the Member for South Thanet about how party and candidate spending rules interact. He is arguing, quite understandably, that the law in this area requires reform as well—again, due to a lack of clarity. The Supreme Court itself acknowledges that separating local from national expenditure can sometimes be a difficult exercise. Certainly, the Government’s view, absolutely, is that ensuring that the electoral framework is well understood and operates effectively is important for all of us. One piece of work that is going on is that since 2017 the Electoral Commission has produced a series of updated non-statutory guidance documents on electoral spending for political parties, candidates and third-party campaigners for parliamentary general elections, local government elections, and other elections. That includes specific guidance on managing spending returns and others.

In addition, the Electoral Commission has been working on new statutory codes of practice for registered political parties and candidates. Those are intended to add clarity and give examples of how the law applies to different kinds of electoral spending. I will make a few points on the codes, which I hope will be helpful, and then on what the Government will do.

The code for candidates clarifies the qualifying expenses for candidates that must be declared in a candidate’s spending return and candidate expenses that are exempted. It provides guidance on the cases or circumstances in which expenses are regarded as incurred for the purposes of a candidate’s election. The code also seeks to provide clarity on notional expenditure, which has been discussed at length tonight.

The code for parties similarly clarifies the qualifying expenses that must be declared in a party’s spending return and includes general principles on all campaign expenditure incurred and on expenses that are excluded. As well as guidance and codes, legislative change is always an option to reform electoral law, and we should look at that carefully.

Photo of Mark Harper Mark Harper Conservative, Forest of Dean

I am grateful to the Minister for being so generous in taking interventions. Can she set out for the House how the position outlined by my hon. Friend the Member for South Thanet is treated? In other words, if a third party decides to be helpful and spends a candidate’s money on their behalf without their authorisation, how does the code of conduct say that that should be accounted for, in her understanding of the law? The way that my hon. Friend set it out was quite worrying.

Photo of Chloe Smith Chloe Smith The Parliamentary Secretary, Cabinet Office, Assistant Whip

I am not in a position to set that out on the Electoral Commission’s behalf, because it ought to speak for itself. I do not intend that to be a weaselly get-out, but these codes are the work of the Electoral Commission, and it is for the Electoral Commission to hear these concerns, respond to them accordingly and, in due course, lay the codes before the Commons, and I will come back to that.

Photo of Andrew Bridgen Andrew Bridgen Conservative, North West Leicestershire

We are not accusing the Minister of any weaselly get-out, but she and the Electoral Commission have to understand that there will be no weaselly get-out for any of us if we find ourselves in this situation without clarity on election law. This is a very worrying situation.

Photo of Chloe Smith Chloe Smith The Parliamentary Secretary, Cabinet Office, Assistant Whip

I quite agree, and I hope that that has been clear from the words I have used and repeated tonight. It is in all our interests—I say that in the widest possible sense of the democracy of which we all have the privilege and honour of being part—that these rules are clear. I simply meant that I am not in a position to answer in detail the question asked by my right hon. Friend Mr Harper about paragraph x, y or z of the code, because that information is available to the House from a different source, and the House should scrutinise that for itself.

Photo of Craig Mackinlay Craig Mackinlay Conservative, South Thanet

As I said in my speech, we have three bits of guidance: the 2015 guidance for general election candidates; the 2017 guidance, refreshed for the general election; and now the 2019 guidance for local election candidates. The Supreme Court judgment came before the publication of the 2019 rules. My right hon. Friend the Member for Forest of Dean asked a clear question: what was the intent? Was the intent of Parliament where we once were and what we all understood, or was it what the Supreme Court has finally come up with? If the Electoral Commission is so keen on what the Supreme Court came up with, why has it not put that in its latest 2019 guidance for local candidates? That is the reason I am trying to put the pitch back to what we have all understood for many years—from 1868 onwards—by a simple three-and-a-half-line statutory instrument. I recommend that this be given the most urgent consideration.

Photo of Chloe Smith Chloe Smith The Parliamentary Secretary, Cabinet Office, Assistant Whip

My hon. Friend reiterates a number of important points. He is right that this requires urgent consideration, and I have confirmed that the Government are looking at the position and want to help ensure that there is clarity. In this House, we are legislators; we are responsible for looking at the law and whether it is clear. As to the regulator’s responsibility to provide usable guidance promptly, I observe again that the Electoral Commission is separately accountable to the House. There have been questions tonight from my hon. Friend and others that the House will wish to satisfy itself of for its oversight of the Electoral Commission, which, as you know, Mr Deputy Speaker, is through the Speaker’s Committee. I encourage Members to direct some of their questions to that source. That is the right thing to do.

What I can talk about is the Government’s next steps, so let me add something in relation to the codes of practice that I have mentioned. First, the commission concluded its public consultation on them in December 2018, and Ministers will review those draft codes before they are put to Parliament. Again, I emphasise that because that is the right and proper opportunity for the Government to contribute their part, but also for this Parliament to do so. The commission aims to have them approved by Parliament in time for elections in 2021. The Government will continue to work with the Electoral Commission on the statutory codes of practice, because we recognise the importance of having clear and accessible codes to provide further clarity on electoral spending.

Photo of Alex Chalk Alex Chalk Conservative, Cheltenham

There can be no doubt but that the Minister is attending to these matters with her customary diligence. Does she agree with me, however, that we can have endless codes of conduct, but that will not address the potential mischief? The situation is that somebody who is being mischievous could in effect sabotage a candidate’s campaign by flying an aeroplane towing a banner at great expense, and that may render the individual liable to conviction, punishment and disgrace. No code of conduct is going to solve that, is it?

Photo of Chloe Smith Chloe Smith The Parliamentary Secretary, Cabinet Office, Assistant Whip

Yes, in short, I do recognise the example given, and I am very grateful to my hon. Friend for expounding it. I am also grateful to my hon. Friend the Member for South Thanet, who added other compelling examples, whether about leaflets or in relation to other hostile actors seeking to do such harm. I understand those concerns, and I am glad they have been laid out clearly in examples tonight.

Photo of Mark Harper Mark Harper Conservative, Forest of Dean

The Minister is being generous in giving way. I want to pick up a point she made about the code of conduct. She talked about clarity, but from listening carefully to my hon. Friend the Member for South Thanet, I think that while part of the problem is about clarity, post the Supreme Court’s decision, the issue is not really clarity. The law is clear, because of the Supreme Court’s judgment, but the problem is that the law, as the Supreme Court set out, is not a good outcome because it allows others to cause mischief. This is not about making the law clear; it is about changing the law back to what we all thought it was in the first place, and only we in this Parliament can do that.

Photo of Chloe Smith Chloe Smith The Parliamentary Secretary, Cabinet Office, Assistant Whip

Yes, and this brings me neatly to the concluding part of my remarks. This is precisely the piece that we in the House and the Government would seek to consider, which is whether we should change the law to provide such clarity. The argument has been put very well tonight that there is a lack of clarity. That has been exemplified and expanded on, and the question remains about the consideration of that judgment and its implications for the law on notional expenditure for electoral candidates.

It is right that we continue to talk to the political parties to understand the implications for future campaigns and to consider potential solutions. Indeed, the Government proactively put this forward as a topic of discussion at the parliamentary parties panel, which we use to consult on these issues, last December. As I mentioned earlier, I will be meeting representatives from across the parties as soon as tomorrow to discuss their views.

Photo of Jonathan Lord Jonathan Lord Conservative, Woking

I thank the Minister, on behalf of colleagues, for those assurances. Given the importance of this matter, could she give us some sort of timeline? There are different ways to get this new understanding sorted out and on to the statute book, but whichever way her Department chooses, may we at least have a timeline so that this important matter is sorted out once and for all?

Photo of Chloe Smith Chloe Smith The Parliamentary Secretary, Cabinet Office, Assistant Whip

I would like to be able to do so, but I am not in a position to do so. My hon. Friends in the Whips Office will have heard that request, and they may in turn be able to advise me about what may be manageable in the forthcoming parliamentary business. However, I intend to continue considering the matter carefully, as I hope that I have outlined, because we need a better understanding of a few related complexities. For example, were we to make the change, how would we avoid the possibility of further abuses being committed between categories? Proper consideration needs to be given to such a change and to which power could be used to do that, as I said earlier. I give the House a commitment that I will continue to consider those important aspects with Cabinet Office officials.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Human Rights), Shadow DUP Spokesperson (Health)

On that point, I think that the thrust of what hon. Members have put forward tonight is the need for clarification. They also referred to the upcoming council elections in May. Many of us are seeking that clarification before May, so can the Minister give some indication of what will happen?

Photo of Chloe Smith Chloe Smith The Parliamentary Secretary, Cabinet Office, Assistant Whip

I thank the hon. Gentleman for that intervention and, indeed, for his earlier expression of support for improving the integrity of all elections through the use of voter ID at polling stations. I have set out tonight a number of the tools being used to try to give that clarity: the guidance from the Electoral Commission, the work on the codes and the question of legislative reform. As he will have just heard, I am unable to commit to a clear date for legislative reform tonight, because our considerations need to continue, but I hope that some elements of the existing guidance may still be helpful to all candidates and agents, not just those of us in this Chamber, in the upcoming local elections.

Let me come to a conclusion. It is also important that we have cross-party consensus on any legislative options, because these matters, which apply to our entire democratic framework, ought to be above mere party politics. We would require that consensus before we could proceed with a legislative option. I thank my hon. Friend the Member for South Thanet again for raising this important matter. As he and I have set out, these rules exist for a good reason: they create a level playing field by ensuring that all associated candidate and party costs are accounted for within electoral spending limits, and they prevent the misuse of electoral spending. The Government will continue to work with the regulator to ensure that there is clear guidance on electoral spending, including through the codes of practice to which I referred. We will continue to consider the implications of the Supreme Court judgment, with a view to protecting those important principles that underpin our democratic framework, which include fairness to candidates and agents and of course the concept of a level playing field, which has been well articulated tonight.

Question put and agreed to.

House adjourned.