Amendment 160A

Elections Bill - Committee (6th Day) – in the House of Lords at 6:15 pm on 28th March 2022.

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Baroness Hayman of Ullock:

Moved by Baroness Hayman of Ullock

160A: Clause 28, page 40, line 31, at end insert “or(b) where a person is convicted of an offence under the Terrorism Act 2000.”Member’s explanatory statementThis amendment intends to probe the circumstances of elected candidates being found guilty of terrorism offences.

Photo of Baroness Hayman of Ullock Baroness Hayman of Ullock Opposition Whip (Lords), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Levelling Up, Housing, Communities and Local Government)

My Lords, I have a couple of amendments to Clause 28 in this group, and then further amendments, all looking at disqualification from elected office. My Amendments 160A and 161 to Clause 28 are really just to probe different government decisions as to why the Bill is laid out as it is. Amendment 160A is to probe the circumstances of elected candidates being found guilty of terrorism offences; that is pretty self-explanatory. Amendment 161 was tabled because the Government have put in the Bill that someone could be disqualified for five years from standing for elected office, and it probes the reasoning behind the period of five years. If the Minister could give the Committee some understanding of where the figure came from, that would be very useful.

Amendment 168 to Clause 32 would add fundraising as an activity undertaken for election purposes, because I think pretty much every political party does it as an election activity. Amendment 170 to Clause 33 is tabled so that we can see clearly the details of any disqualification orders given to ensure transparency. I am aware that the noble Lord, Lord Hayward, has an amendment in this group, so I will be interested to hear his introduction to it. Amendment 172 to Clause 34 probes the Government’s intention to vary the offences. It would be interesting to hear from the Minister some more detail on that and how it came to be in its current form.

I shall not give a long speech, as we have a long way still to go on the Bill and it is pretty clear what the Government are looking to achieve by this section of it. There is one issue I will raise, which was raised in Committee in the other place as well, and it concerns the five-year period. Many of the people who go on to intimidate candidates, agents or campaigners—unfortunately, I have been a victim of that, as have many people who stand for elected office—and who commit such crimes and acts, are not really interested in standing themselves to become elected representatives. Some of them are just opposed to the whole idea of how we run our democracies. But is that five-year period going to stop anything? Do the Government think that anything further could be done to manage the problem? Intimidation is becoming an increasingly difficult issue which, sadly, anyone putting themselves forward for public life at any level has to deal with.

We support the Government in their really important effort to do something about intimidation of candidates, be it physically or through social media. The Opposition are happy to work with the Government if there are ways in which we can continue to improve the situation, support people who put themselves forward for public office and protect them from this kind of behaviour. I beg to move.

Photo of Lord Hayward Lord Hayward Conservative

My Lords, the noble Baroness, Lady Hayman, referred to my Amendment 171 in this group, to which I would like to speak. Before I do, and with the indulgence of the House, I refer to some comments made by the noble Baroness, Lady Scott, in Committee last week:

“However, given the important concerns that have been raised on the secrecy of voting, Minister Badenoch will be writing to the Electoral Commission and the Metropolitan Police to confirm our common understanding of the position set out in legislation—that the only people who should provide assistance at a polling booth are polling station staff and companions who are doing so only for the purpose of supporting an elector with health and/or accessibility issues that need such support. We are confident that the Electoral Commission will be able to respond promptly”.—[Official Report, 21/3/22; cols. 750-1.]

I raise that because the Minister wrote to the Electoral Commission and the police last week in very clear terms, covering the points made by, I think, every Member in the debate, and emphasising that there should be no element of doubt. Noble Lords will note that the Minister said that it was hoped that the Electoral Commission and the police would respond promptly. I quote from the letter the Minister wrote to those two organisations. In the penultimate paragraph, she says:

“I would be grateful for a quick response … to reassure Parliament that the secrecy of the ballot is upheld at those polls”— that is, in May—or the Government may be minded to

“strengthen the law in this area, given the constitutional importance”.

I hope that the Electoral Commission and the Metropolitan Police will respond promptly, so that this matter does not have to come back at Report, as it may well have to do. I thank the Committee for its indulgence while I dealt with that, but it is important, given the general view that was expressed.

I move on to my Amendment 171. I am sorry here to possibly be raking over bad memories for the noble Lord, Lord Collins, who has said on a number of previous occasions that he was involved in the Tower Hamlets affair several years ago—and this is driven by the issue of Tower Hamlets and Lutfur Rahman. Lutfur Rahman was banned for five years, which may be where the question from the noble Baroness, Lady Hayman, about five years comes from. That was the maximum penalty available to the election court.

The issue is current because Lutfur Rahman, having been banned for the maximum time available to an election court, is now in a position to stand at the upcoming local elections for mayor in Tower Hamlets. Lutfur Rahman has issued an election leaflet in which he identifies himself as the potential candidate for mayor, with the noble Baroness, Lady Uddin—I did give her notice that I would be referring to her—and Ken Livingstone as prime supporters. That is probably not the ultimate dream team that one could imagine for an election campaign.

The significant thing about this is that Lutfur Rahman can stand again, and he can do so not only because the election court has this maximum but because our election law needs bringing up to date—a matter that I referred to at Second Reading and to which a number of noble Lords have referred on many occasions. Lutfur Rahman is going around Tower Hamlets issuing leaflets that say, in his own words reported recently in East London News:

“I have never acted dishonestly”.

He then goes on to refer to the election tribunal.

Well, Mr Rahman, if you have never acted dishonestly, why is it that in the judgment issued on 23 April 2015 in the High Court of Justice of the Queen’s Bench Division, Richard Mawrey QC, sitting as the judge in the High Court, said—I quote from the formal conclusions in paragraph 672 onwards—

“the First Respondent Mr Rahman was guilty … of corrupt practices”; then, in paragraph b),

“Mr Rahman was guilty by his agents of illegal practices”; in paragraph c),

“Mr Rahman was personally guilty”; in paragraph d),

“Mr Rahman was guilty by his agents”; in paragraph e),

“Mr Rahman was personally guilty”; and, in paragraph f),

“Mr Rahman was personally guilty”?

There are seven different offences of which he was found guilty, and two others where he was found guilty with other people. Yet he seems able, despite the fact that he says he has never done anything dishonestly, to go around already for this election saying “I have never been found guilty of anything”.

The judgment by Richard Mawrey is quite interesting and depressing. It shows the lengths to which Lutfur Rahman and others were willing to go. In paragraph 248, Mr Mawrey refers to Mr Rahman’s

“close cronies, some of whom … have little to recommend them beyond blind loyalty to their leader.”

At a later stage, Mr Mawrey says, in paragraphs 295 and 296:

“As a generalisation, politicians … avoid answering the question … Mr Rahman exemplified this trait to an extreme level. Faced with a straight question, he proved himself almost pathologically incapable of giving a straight answer.”

In paragraph 298, he says:

“Sadly, it must also be said that he was not truthful. In one or two crucial matters he was caught out in what were … blatant lies.”

Lutfur Rahman has said, as I quoted earlier, that he has “never acted dishonestly”. This judgment is a series, almost a litany, of offences that we can only imagine. The judgment given by Richard Mawrey was then referred to the Solicitors Disciplinary Tribunal:

“The matter was heard on 18-20 December 2017. Mr Rahman was Struck Off the Roll.”

So we have somebody who has been not allowed to continue his office as mayor, who has been struck off the solicitors’ roll and who was banned for the maximum available time, yet he is now entitled to stand again for that role. He is also going around issuing messages saying that people claim

“I was found guilty of … corruption … These claims relate to an election tribunal”.

They do not relate to an election tribunal; they relate to an election court. He goes on to say that

“Lord Justice Lloyd-Jones and Mr Justice Supperstone said that the findings ‘did not amount to a finding of criminal guilt’”.

They amounted to breaches of election law in seven different ways.

Lutfur Rahman is appealing for votes in a sectarian manner in Tower Hamlets. He is not appealing for votes in the interests of any broad community. He says in his election broadcast that he “feels the pain” of the community. He does not. He feels the desire to rehold an office from he has been banned and should have been banned for a much longer period. He is not serving the Bengali community in Tower Hamlets; he is serving himself and, in the words of Richard Mawrey, “his cronies”.

It is on that basis that I believe we have the ultimate example of the need for a ban to apply for more than five years. This man should not have been allowed to contest another election at any point.

Photo of Lord Scriven Lord Scriven Liberal Democrat 6:30 pm, 28th March 2022

My Lords, very briefly from these Benches, most of these probing amendments seem reasonable and we look forward to the response of the Minister on the points that have been raised. I will just raise four points.

First, it is always a pleasure to follow the noble Lord, Lord Hayward. I have listened throughout Committee to his detailed analysis of what has happened in Tower Hamlets. I think it is important as we go through the Bill that we remember what has happened in Tower Hamlets, but we must not use it as the sole basis on which to make the law of the land; we have to listen to what has happened there, but making electoral law has to go much wider than just the Tower Hamlets case.

Having said that, like the noble Baroness, Lady Hayman, I want to probe why it is five years in particular. Five years is one election cycle, or could be one general election cycle. If somebody has committed quite a serious election fraud, having a five-year, one-term ban seems rather lenient to most people who would be looking in. What analysis was done by the Government in determining that five years was the particular period?

On Amendment 172, it is pleasing that, if the Secretary of State is going to vary, omit or add to the list of offences, it will be done on the affirmative procedure. Can the Minister give an example of what type of variation would be required? One can understand omitting, one can understand adding, but what kind of variation do the Government foresee could be laid by the Secretary of State? With those comments from these Benches, and my omitting when I first spoke to also wish the noble Lord, Lord True, a speedy recovery and wish him back to his place for Report, we look forward to hearing what the Minister has to say.

Photo of Baroness Scott of Bybrook Baroness Scott of Bybrook Baroness in Waiting (HM Household) (Whip)

First, I thank my noble friend for bringing the Committee up to date with the letter from the Minister to the Electoral Commission and the Metropolitan police that we discussed at our previous sitting. The letter is one thing, but I now wait for the responses to it. I will make sure that my noble friend Lord True knows about that so that we can keep the pressure on to get those responses. That is important.

The act of intimidation and those who perpetrate it have no place in our democracy. Clause 28 would create a new disqualification order for offenders who intimidate those who contribute to our public life. This would be a five-year ban on standing for, holding and being elected to public office. It can be imposed on those convicted of intimidating a candidate, elected office holder or campaigner. After all, it is simply not right that those who try to damage political participation through intimidation are allowed to participate in the very same process that they tried to undermine.

There is no single offence of intimidation in criminal law. Therefore, the new sanction would potentially apply to a wide range of existing intimidatory criminal offences, as listed in Schedule 9. The noble Lord, Lord Scriven, asked what more could be added to that, and I will get some suggestions for him.

Photo of Lord Scriven Lord Scriven Liberal Democrat

I did not ask what more could be added but for an example of variation.

Photo of Baroness Scott of Bybrook Baroness Scott of Bybrook Baroness in Waiting (HM Household) (Whip)

I will get an answer for the noble Lord and write to him.

The list includes, but is not limited to, stalking, harassment, common assault and threats to kill. By creating a new sanction instead of a new electoral offence, we would enable the protection from intimidation all year round, not just during an election period, and extend protection in law to two additional groups: future candidates and elected office holders.

We understand the noble Baroness’s view on intimidating those not wanting to stand—they just want to intimidate. I will take it back because it is a valid point, but I imagine the answer is that there are other laws for that sort of intimidation that do not affect electoral law. I will ensure that the noble Baroness gets an answer.

For the disqualification order to be imposed, the intimidatory offence must be aggravated by hostility related to the status, or perceived status, of the victim being a candidate, elected office holder or campaigner. This ensures that the disqualification is imposed only in instances where political participation is genuinely at risk. The disqualification order is, of course, in addition to whatever other punishment the court applies to the offender for the underlying criminal offence. I think that is extremely important.

Amendment 160A probes the circumstances of an elected candidate being found guilty of terrorism offences. I can confirm that anyone committing an act of terrorism against a candidate, future candidate, campaigner or holder of elective office would already be subject to the disqualification order as currently drafted in addition to the penalties associated with that specific crime. If the offender was a holder of elective office, their office would be vacated in accordance with Clause 29. I therefore urge the noble Baroness to withdraw this amendment.

I heard what my noble friend Lord Hayward said about Amendments 161 and 171, but I am not going to comment on that case because I do not think it would be right to do so. These amendments seek significantly to increase the period of disqualification or incapacity arising from the imposition of the disqualification order or from committing relevant electoral offences, respectively. Changes of this significance require very careful consideration to ensure that these penalties continue to reflect the crime and do not become disproportionate.

The fixed five-year disqualification period provided in Clause 28 is consistent with the existing incapacity arising from a corrupt or illegal practice as provided by Section 160 of the Representation of the People Act 1983. I think that that answers the question asked by the noble Lord, Lord Scriven. The period of disqualification for the proposed disqualification order is designed to strike the right balance between ensuring a sufficient deterrent while remaining proportionate, given the potential interference with the right to participate in free and fair elections, most recently protected under Article 3 of Protocol 1 to the European Convention on Human Rights. I therefore urge the noble Baroness and my noble friend not to press these amendments.

Photo of Lord Hayward Lord Hayward Conservative 6:45 pm, 28th March 2022

Before my noble friend moves off that point, and picking up a comment made by the noble Lord, Lord Scriven, although I have referred on a number of occasions to Tower Hamlets, I have done so because that is the most extreme example. Does my noble friend agree that there are other examples of election offences around the country which may be considered minor, but are indications of the sort of problems we are facing in a number of areas?

Photo of Baroness Scott of Bybrook Baroness Scott of Bybrook Baroness in Waiting (HM Household) (Whip)

Issues from around the country that we need to take note of have been brought forward in this Committee.

Photo of Lord Scriven Lord Scriven Liberal Democrat

My question was slightly different. I appreciate that the Minister tried to answer, but what assessment has been carried out to see whether five years is still relevant? If it is benchmarked against a five-year period within the Representation of the People Act, was that assessed against the types of crime that we are talking about and was that still seen to be the correct benchmark?

Photo of Baroness Scott of Bybrook Baroness Scott of Bybrook Baroness in Waiting (HM Household) (Whip)

It is considered to be the correct benchmark taking into account proportionality and the fact that many of these crimes will have further consequences because other crimes have been committed.

Amendment 168 seeks to widen the definition of a campaigner in Clause 32 explicitly to include fundraising activity as an activity undertaken by a campaigner for election purposes. I can assure the noble Baroness that fundraising activities for a registered party and a candidate are already implicitly captured, as provided by the broad wording that defines campaigners as engaging in activity to “promote or procure” support. However, we will explore options to clarify this further in the Bill’s Explanatory Notes. I thank the noble Baroness for tabling this amendment, but I ask her not to press it.

Amendment 170 to Clause 33 would require a Minister of the Crown to publish a statement outlining the details of the disqualification order in the event that a person were to be elected to the House of Commons while subject to a disqualification order. Further, we note the noble Baroness’s opposition to Clause 33 more generally. As explained, the new disqualification order disqualifies offenders from being elected to various offices. Clause 33 would ensure that this disqualification applies to membership of the House of Commons. To clarify, while the other relevant elected offices already have provisions which state that an election is void because of disqualification, there is currently no equivalent provision in relation to the election of a Member to the House of Commons.

Therefore, Clause 33 has an important role to play in ensuring that the new intimidation disqualification order operates as intended and as I suggest the electorate would expect it to operate. There is no reason why those elected to the House of Commons should be treated as a special case or held to a lower standard than any other elected office in this country. Anyone convicted of a politically motivated criminal intimidation-related offence should not be sitting in the other place for the duration of the disqualification period.

Turning specifically to Amendment 170, I reassure the noble Baroness that it would not be necessary. Although there is no notice requirement in Section 7 of the House of Commons Disqualification Act 1975, in the event that a seat becomes vacant, there will be a Motion for the Speaker to issue their warrant to make out a new writ for the election of a new Member to fill that vacancy. The writ would then be issued, and Members of the House of Commons would be made aware that a vacancy has occurred. I therefore urge the noble Baroness to withdraw this amendment.

I now turn to Amendment 172, tabled by the noble Baroness, Lady Hayman, which proposes to limit the regulation-making powers to amend Schedule 9, which lists the existing criminal offences of an intimidatory nature in respect of which the intimidation sanction can be made. The purpose of Clause 34 is to future-proof the new intimidation sanction so that it remains relevant and can continue to apply to offences of an intimidatory nature, recognising that the nature of intimidation and abuse can shift, and indeed is currently shifting, particularly online. A relevant example of this is the online safety Bill, introduced earlier this month: it proposes new communication offences originally recommended by the Law Commission last year.

In addition to enabling Ministers to respond to and add new offences, the clause ensures that the list provided in Schedule 9 remains accurate through powers to omit offences from the list and vary the description of offences already included in it, if and when any of the listed offences are amended or repealed in law. These provisions will require that any statutory instrument laid using these powers is subject to parliamentary scrutiny under the affirmative resolution procedure. This will ensure that Parliament can scrutinise and decide whether to accept any proposed changes to Schedule 9. I therefore ask the noble Baroness not to press Amendment 172.

Photo of Baroness Hayman of Ullock Baroness Hayman of Ullock Opposition Whip (Lords), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Levelling Up, Housing, Communities and Local Government)

I thank the Minister for the clarification she has provided, particularly around my amendment seeking to include fundraising. It would be extremely helpful if that could be added to the Explanatory Notes. She also explained that the Government want to future-proof intimidation sanctions, particularly online. When the Minister talked about varying the offences, did she mean just varying the descriptions of offences as things change to make sure they are always up to date? It would be helpful if the Minister could clarify that.

Photo of Baroness Scott of Bybrook Baroness Scott of Bybrook Baroness in Waiting (HM Household) (Whip)

No—we are talking about ensuring that the list provided in Schedule 9 remains accurate through powers to omit offences from the list and vary the description. So it is varying or omitting.

Photo of Baroness Hayman of Ullock Baroness Hayman of Ullock Opposition Whip (Lords), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Levelling Up, Housing, Communities and Local Government)

So the “varying” bit is just to do with the description of the offence. I thank the Minister.

As the amendments I have tabled show, my main concern is the fixed five-year period. Other noble Lords have raised that issue too—the noble Lord, Lord Scriven, rightly said that that is only one parliamentary term—so it would be good if the Government could look at that again. I will make another suggestion. If the Government are going to stick with the fixed five-year period, what would happen if there were a repeat offence? Would there be another five-year period, or is there an option to look at a greater sanction if such an offence were committed again? Otherwise, it is not a deterrent if the people just miss out every now and again. It would be good if the Government could have another think about that; otherwise, this issue will come back on Report, because there are clearly concerns about it.

I thank the Minister for her comments on the intimidation of candidates’ agents and campaigners. I am aware that she rightly said that other offences are available for people to be convicted of if they are found to have behaved like that. I know that this is not part of the Bill, but often the effectiveness of the police’s response to such intimidation varies greatly across the country. It would be good if the Government could also consider that in some form or other. For the moment, I withdraw my amendment.

Amendment 160A withdrawn.

Amendment 161 not moved.

Clause 28 agreed.

Schedule 9 agreed.

Clause 29 agreed.

Clause 30: Candidates etc