Amendment 45

Elections Bill - Report (2nd Day) – in the House of Lords at 3:40 pm on 25th April 2022.

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Lord Judge:

Moved by Lord Judge

45: Clause 15, leave out Clause 15

Photo of Lord Judge Lord Judge Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Convenor of the Crossbench Peers

It is a very strange thing but, quite by accident—I promise it is by accident—I happen to have my copy of the Bill open at a part I have not really studied, called “Undue Influence”. Suddenly I find myself thinking, “What a very good thing to prevent that happening in this Bill.”

I have addressed your Lordships on a number of occasions about the Bill, particularly these clauses, including Clause 15, which we are discussing now. Noble Lords have listened with patience and courtesy and I have listened to the Minister with great patience. I regret that I am unconvinced by what he has said in the House so I intend to seek the opinion of the House at the end of this debate, but I intend to be brief.

I really do not think that anyone in your Lordships’ House can have the slightest doubt about the constitutional imperative that the Electoral Commission should be politically independent—independent of all political influence, whether direct or indirect, over the electoral process. If anyone disagrees with that, would they please say so? Any possibility that the party in government may have influence over the electoral process should be rejected.

Clauses 15 and 16 are repugnant to that foundational principle. They require the commission to have regard, at the very lowest, to pay close attention to the strategy and policy principles, and to follow the guidance, of the Government of the day. The importance of this feature of the language, which is tucked away but needs emphasis, is that the Electoral Commission will exercise its responsibilities in relation to the strategy and policy statement to enable Her Majesty’s Government to meet those priorities. If we rephrase that, it says that the Electoral Commission must enable the strategic and policy priorities of the Government to be met. That does not sound like independence. These are directive provisions. The word “duty” is used, imposing unequivocal statutory obligations on the commission that will govern—or, if not govern, will certainly influence —its own performance of its responsibility, and perhaps, dare I say it, is meant to influence it.

The commission, which everyone agrees—so far, at any rate—should be independent of government, is to be subject to a statutory duty to enable the Government to achieve their priorities: that is to say, their priorities, strategies and guidance to the extent that they relate to the electoral system. That is what the Bill says. This proposal came out of the blue without reference, consultation or, astonishingly—to me, at any rate, as someone who does not have a political background—for a proposal that has a constitutional impact, without cross-party discussion of any kind.

There is a problem with the Electoral Commission, as I have heard from all sides: it does not work as well as it should; it is inefficient; it does not do this, it does do this and it was wrong to do that. I have heard them all. Fine, but this proposal is not an answer to that problem. I simply ask us all to think: if this proposal had been included in the original Bill in 2000, outrage would have been expressed on all sides of the House of Commons. That is the problem.

What protections are we being offered? Before the Secretary of State produces the statement with his priorities and strategies, he must consult—not have anyone’s agreement or consent, but consult. He must consult the Electoral Commission. Fine, but the Electoral Commission can give us some evidence of how the consultation process is likely to be treated. It made a submission proposing that these clauses should not be applied. Okay, one might say that the Electoral Commission is biased, but I have seen nothing to suggest that the Secretary of State took any notice whatever of what it said.

The second group to be consulted is the Speaker’s Committee, a body which includes two government Ministers. I know that there are other members, including Back-Benchers; there are a total of nine members, but two are government Ministers. That is described in a system I come from as someone being a judge in his own cause. More important, perhaps, is that the power of checking whether the Electoral Commission has followed the guidance and strategy, and so on, is vested in the Speaker’s Committee. In other words, the judgment on the Electoral Commission is being made by a body which includes two government Ministers.

The third group to be addressed was the Public Administration and Constitutional Affairs Committee, or PACAC, a cross-party committee of the House. The consultation process has now been changed; I understand that the removal followed a recent machinery of government change, and it is now the Levelling Up, Housing and Communities Committee. However, when this Bill was first promulgated, PACAC was the consultee. I shall return to PACAC in a moment, but it responded in the most unequivocal language after a close analysis of the whole of these provisions by suggesting that they should not be included in the Bill. For this purpose, I shall come back to it. Is there any evidence to suggest that the Government took the slightest bit of notice of that recommendation by a unanimous, cross-party House of Commons committee? Not that I have seen or that has been drawn to my attention.

What is this protective system? It is a consultation process, but there is nothing in statute requiring the Secretary of State to pay attention. No doubt they will be read; no doubt somebody will read them to the Minister and he will discuss them, but there is absolutely nothing in the Bill which says that the Minister must attend to the committee and that it should at least have some power to say that this is wrong. As it is, we end up with a situation in which the protection system is simply this: the Secretary of State asks these three bodies, they tell him what they like and then he does what he thinks. That is the full extent —apart from, ultimately, the provision coming to Parliament—of the protection given against what looks like, as I have submitted to your Lordships, something completely repugnant to the independence of the Electoral Commission.

It gets worse. There is a review provision, not dealing with typos and so on, but there the consultation process is reduced to one body. I do not think that three are very impressive but three are more important than one, and exactly the same position applies. Ultimately this has to be seen as the most important concern. A quinquennial review is required. In fact, a review can take place at any time: after an election or after a new Government have been put in power. Whenever it takes place, the powers that are currently being invested in the Secretary of State with this Government will be invested—and one day it will happen—in the Secretary of State chosen by a Labour Government.

What will the consequence of that be? Naturally enough, the Secretary of State will look at the way the powers have been exercised by the party formerly in power. He or she will decide that that is not agreeable, or appropriate, or has not worked. Suddenly, we will have a new system—a new statement—with new strategies, priorities and guidance being issued by the new Government to the same Electoral Commission. I do not know; it is a very strange independent body that can be tossed around like a football. That is what it comes to.

I come back to PACAC, because PACAC, having ceased to be a consultee under this process, nevertheless wrote to the Secretary of State for Levelling Up, urging the Government to accept this amendment, as it had recommended in the first place. A few words from that report sum up everything that I want to say today. It rejects the purported government explanation to justify these clauses. It said it was “extremely concerned” about the potential impact of these provisions, and concluded:

“The risk inherent in these provisions is evident for all to see. This is an unacceptable risk to the functioning of our democracy”.

That is a cross-party view in the other place and of course I agree with it. I urge the House that we should protect the Electoral Commission from this proposed newly minted augmentation of executive power. I beg to move.

Photo of Lord Blunkett Lord Blunkett Labour 3:45 pm, 25th April 2022

My Lords, I support the noble and learned Lord in his amendments, to which I have added my name. We have a cross-party understanding, I believe, that, whatever their intentions, the Government have got this wrong. When the House has the kind of unanimity that it has in relation to the Electoral Commission’s powers and the strategy and policy statement process, it is incumbent on any Government to listen and to learn.

The noble Lord, Lord Wolfson, in his dignified and honourable resignation from the Front Bench—I believe we unanimously regret that he felt he needed to resign—said in his resignation letter that we have to take into account how others see us.

The noble and learned Lord referred to the legislation in 2000. I was a Member of the Cabinet at the time. We had a majority of 179. We could have pushed anything through, but the outrage which would have emerged universally across our media, as well as from the Benches opposite, would have driven us back inevitably to a situation where we would have had to think again. I ask the Government, with less than half that majority, to think again. It is not what might be intended, it is how that intention might be perceived—as well as the real outcome. There is the potential for a Trojan horse to lead us down a path which could be regretted at length as part of our constitution. Crucially, this will be seen from outside the country in the way that the noble Lord, Lord Wolfson, perceived in relation to the rule of law.

Gideon Rachman from the Financial Times has written a book called The Age of The Strongman. In it, like many others who have written on this subject, he poses the real and present challenge of the international democratic process being undermined by the clash between the strong autocratic leadership of those outside the democratic fold; those within the purview of the democratic fold who are leading their nations into autocracy and the diktat of the centre; and the participative democratic world, which involves people being listened to, not just in parliaments but across the nations, and taken notice of.

I am afraid to say that the clauses with which we are dealing this afternoon are a measure of a Government who have not understood that they should be on the side of the participative democratic processes which defend us against the creeping autocracy we see internationally at the moment. It is as serious as that. The Electoral Commission and the electorate as a whole, who were polled over the weekend, have demonstrated their concern. Most people will not understand the detail of the Electoral Commission—why would they? However, they do understand when a Government start to believe that their party and their place in government are one and the same thing—they are not.

I tried to put this across in recent legislation in other areas of public policy. The Government govern for the nation as a whole; they do not govern for a particular political party. Of course, they will want to implement their manifesto and the mandate they have been given by the electorate. By the way, there is no mandate at all on this; there is no suggestion, as there has been in other parts of the Bill, that the Government had indicated, in their manifesto and during the election, that they wished to deal with the Electoral Commission in this way. There have been suggestions from one or two Members of this House at Second Reading and at Committee that somehow the Electoral Commission attracted the notice of the Government—or the Conservative Party, I should say—in terms of what happened in the 2016 referendum. This was backed up by the noble Baroness, Lady Fox; I was sat next to her at the time, and it was a rather half-hearted effort to defend the Government on this particular set of clauses.

There is no argument for it; there is no problem, as the noble and learned Lord explained. What we have is a solution in pursuit of a problem which does not really exist. Fundamentally, we have a vision and message going out from this legislation that will be rued by us all if we do not get this right. I have a very simple appeal to the Government: take these amendments and accept them when they go back to the Commons tomorrow; withdraw the proposal because it does not have support anywhere in this House, in the other House, other than the three-line Whip, or across the country; and allow us to unify on consulting properly on whatever perceived problems the Government—or the Conservative Party—Labour, the Lib Dems or the Cross Benches might have about the operation of the Electoral Commission. Consult properly, undertake this in a democratic fashion, understand how we are seen as a country and get it right.

I ask the Government to please understand this afternoon that some of us, at least, will go to the wire on this one. So let us be prepared to go into next week if we have to, to ensure that we defend our democratic processes and practices. If we do not, somewhere in years to come, someone should ask each of us, “Where were you? What did you do? Did you understand what you were passing? Were you in favour of it? If you were not, why did you not vote against it?”

Photo of Lord Young of Cookham Lord Young of Cookham Conservative 4:00 pm, 25th April 2022

My Lords, I will make three brief points in support of the amendments of the noble and learned Lord, Lord Judge. The first follows a point made by the noble Lord, Lord Blunkett, who has just made a forceful speech. As my noble friend Lord Cormack mentioned in an earlier debate, I was my party’s spokesman and I was in the shadow Cabinet of William Hague, now my noble friend Lord Hague, when the Bill establishing the Electoral Commission went through. As the noble and learned Lord, Lord Judge, implied, had the Blair Government sought to include these two clauses in that Bill, my party would have strongly opposed that. They conflict with the recommendation of the Neill commission’s report that

“An Election Commission in a democracy like ours could not function properly, or indeed at all, unless it were scrupulously impartial and believed to be so by everyone seriously involved and by the public at large.”

If it was right for my party to oppose those clauses then, it is right to oppose them today.

Secondly, I respectfully disagree with the argument in defence of the Government’s position put forward by my noble friend the Minister on March 10:

“It is entirely appropriate for the Government and Parliament to provide a steer on electoral policy … By increasing policy emphasis on electoral integrity … the Government are seeking to prevent interference in our democracy from fraud, foreign money and hostile state actors.”—[Official Report, 10/3/22; col. 1643.]

It is not the Electoral Commission that requires a steer, for example, on the importance of protecting our democracy from foreign money; it is the Government. The steer that my noble friend described—the statutory requirement to

“have regard to the statement”— should be in precisely the opposite direction to the one in the Bill.

My third and final reason is related to the first. I have left the Government five times, which is more than anyone else in the Chamber—even the noble Lord, Lord Blunkett. Once was at the request of the electorate in 1997 and three times were, sadly, at the request of the then Prime Minister, but the last was of my own volition, one month after the current Prime Minister took office, when he illegally prorogued Parliament. That was the first of a number of steps that injure out democratic institutions—in that case the House of Commons. It was followed by the failure to defend the judiciary from the “Enemies of the People” attack by the Daily Mail, the attempted interference with the verdict on Owen Paterson, the resignation of the Prime Minister’s independent adviser Alex Allan—instead of the Home Secretary—and the evident disregard, shown from time to time, for the role of your Lordships’ House and the Ministerial Code. These clauses are another step in the same direction; they are disrespectful of the ground rules of our constitution, and they should not be in the Bill.

Photo of Lord Grocott Lord Grocott Labour

My Lords, we have heard three splendid speeches, and I intend to be very brief. I will pick up on a comment made by my noble friend Lord Blunkett, who is of course quite right that the public will not be interested or involved in the details of this legislation. But I have no doubt whatever that they have an acute sense of fairness. In Committee, I suggested that, for the Government to give instructions to the Electoral Commission is akin to a party in a football match—one of the two teams—giving instructions and guidance to the referee prior to the match. I do not think that anyone in Britain would think that that was a fair situation. I do not think that anyone could seriously contend that that is not what would happen if these two clauses become law.

What I find particularly persuasive is that this letter from the Electoral Commission, which many of us have, is, unsurprisingly, signed by every single member bar the Conservative nominee—I make no criticism of the fact that he did not sign it, but it was signed by everyone else. It argues against these two clauses. As they say,

“It is our firm and shared view that the introduction of a Strategy and Policy Statement – enabling the Government to guide the work of the Commission – is inconsistent with the role” of an “independent electoral commission”. If anyone is wavering on this, just substitute the words “Conservative Party” for “Government”. It is nothing to be ashamed of, and I strongly support political parties; I have been in one all my life and I would go as far as to say that they are the lifeblood of our democracy. I do not regard as superior human beings those people who have not joined political parties. If we substitute the word “Government” with “Conservative Party”—because of course Governments consist, in the main, of one political party—it reads as follows: “It is our firm and shared view that the introduction of a Strategy and Policy Statement – enabling the Conservative Party to guide the work of the Commission – is inconsistent with the role of an independent electoral commission.” Is there anyone here who could possibly dispute that statement? Forgetting about the Government for a moment, for one political party in a contested situation—which is precisely what elections are, which is why they can get fraught and need adjudicators—to give an instruction to the referee, or the Electoral Commission in this case, is clearly inconsistent and unacceptable as part of our electoral procedures. I urge everyone to see the fairness of that argument and to support the amendment from the noble and learned Lord, Lord Judge.

Photo of Viscount Hailsham Viscount Hailsham Conservative

My Lords, I rise very briefly to support the amendment put forward by the noble and learned Lord, which has, if I may say so, attracted very wide support on all Benches of this House.

Others have already identified some of the aspects of Clause 15 that are truly objectionable, so I will not go into any great detail, save to say that, on any view, the powers given to the Secretary of State are very extensive. They are, as has been said by a number of your Lordships, designed to make the commission an implementer of government policy. The requirement on the Government to consult is extraordinarily limited, and the obligation on the commission to report compliance will expose the commission to the cry “Enemies of the People”, as happened in 2016 when the judges held that Brexit required the consent of Parliament. I might remember, too, that the Lord Chancellor of the day did not push back on that criticism. I acknowledge that the substantive statement is subject to the affirmative resolution procedure, but I also point out that, in the House of Commons at least, that will be the subject of the most strenuous whipping. In any event, of course, the statutory instrument procedure is not subject to amendment.

I have been in public life for 40 years—not as long as my noble friend Lord Cormack, but perhaps long enough—and I have come to a very settled conclusion: if you give powers to the Executive or to officials, in time they are certain to be abused or misused. That will certainly happen. As my noble friend Lord Young of Cookham—I have known him for over 60 years—rightly pointed out, the present Prime Minister illegally thought to prorogue Parliament. I am told by reading the newspapers that, at this moment, the Government are thinking of simply abrogating the Northern Ireland protocol—a treaty obligation to which the Prime Minister signed up very recently and on which, at the time, he incorrectly stated that it did not create a hard border between Northern Ireland and the rest of the United Kingdom.

As has been rightly said, in particular by the noble Lord, Lord Grocott, election law is extraordinarily sensitive. I for one am not prepared to give powers to a Government that, if used, misused or abused, will certainly damage yet further the respect for our democratic institutions. It is for that reason that if, as I hope, the noble and learned Lord moves to test the opinion of the House, I shall support him.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, I would like to join in on all these comments about the Prime Minister’s failings, but I just do not think there is time in this debate.

I support the noble and learned Lord, Lord Judge, and will obviously support the amendments, but before I speak to those specifically, I hope noble Lords will not mind if I speak briefly about what we are facing this week—and possibly next week—because the Government have created a legislative deadlock. This was not the fault of your Lordships’ House; it was the fault of the Government, and if this legislation is not passed in the next few days, it falls completely. I have no problem with that—I would like to see it all fall—but the fact is that that probably is not a position your Lordships’ House can take. However, we can obtain very significant concessions from the Government. They will not want to lose all these Bills, and this is an opportunity for us to throw out the worst bits of the legislation that we have all argued about over the past few months.

I make a plea to the Labour Front Bench and the Cross-Benchers that we maintain the maximum amount of toughness in the face of what the Government are trying to push through this House. We should not fumble this opportunity to improve Bills that we have tried to improve, only for almost all those amendments to be ripped out by the other place. So, I am looking forward to today. I have sat here and listened to the speeches with a real smile on my face; it has been wonderful.

Amendments 45 and 46 are a perfect example of why we should not back down. We have to insist that we will not pass the Bill if Clauses 15 and 16 remain in it. The Electoral Commission, as we have heard, said it best, and I agree. It says that the proposals are

“inconsistent with the role that an independent commission plays in a healthy democratic system.”

This Government are trying to reduce the amount of democracy we have in Britain, and that is a terrible failing for a democratically elected Government.

The Greens are very grateful to the noble and learned Lord, Lord Judge, for leading on these essential amendments. I am sure he is going to carry the House with him, and we will obviously vote for them again and again—as many times as it takes to force the Government to drop them or lose the Bill entirely.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, it is always a great pleasure to follow the noble Baroness. I frequently do not agree with her; today, I most certainly do and I think, to use the words of the noble Lord, Lord Blunkett, this is one that we take to the wire, because this is completely unacceptable in a Bill of this nature. In no circumstances could I possibly condone the Bill if it goes forward with these clauses in it.

As I was listening this afternoon to some excellent speeches, I thought of those famous words of Acton: “Power corrupts; absolute power corrupts absolutely.” I am afraid we are in danger of our Government being corrupted. I use those words deliberately and slowly, but it is a real risk, because the arrogance that we see from this Government—my noble friend Lord Hailsham referred to this—is something that, in my 52 years in Parliament, I have not seen before. Coupled with it is a disinclination to disagree agreeably, and in a democracy it is very important to be able to do that.

For a Government to take these powers to themselves is something up with which we should not put. I referred to this in previous debates, at Second Reading and in Committee. We have here a potential seizure of power that, as my noble friend Lord Young of Cookham said, we would not have countenanced from the Labour Government, with their massive majority, 22 years ago, when he and I—he was leading—were dealing from the Front Bench with the Bill that established the Electoral Commission.

Of course, there are things wrong with the Electoral Commission. If they are so very wrong, if would not have been a dishonest thing to say that we will abolish it. I would not have favoured that, but to say that we will subvert it—that we will place ourselves in a position where we can undermine it—is an arrogance that defies belief. We just cannot have this in a Parliament, and the trouble is that if a sea change happens, it tends to stay.

One of the reasons why your Lordships’ House has such an excessive legislative burden on its shoulders is that in 1998, the then Labour Government—I was talking to the noble Lord, Lord Coaker, about this this morning —provoked by some Conservatives who kept Labour up late night after late night, decided that every Bill would be timetabled. When the Conservative spokesman said, “We, of course, will reverse this”, we all thought that that was absolutely right. And when Conservatives came into government, did they? No, because it was convenient for government. But the result of that convenience for government has created a situation where legislation is not scrutinised in the other place, hence the excessive workload in your Lordships’ House.

We should beware of going down slippery slopes. The noble and learned Lord, Lord Judge, has performed a signal service in putting down these two amendments. I believe it is our duty, it is incumbent upon us, to curb that arrogance of power and to make sure that these clauses are deleted from the Bill, or that the Bill—for all that it contains some things that are entirely acceptable —falls. That is the ultimatum we must place before the Government, and I hope they will see sense.

Photo of Lord Stunell Lord Stunell Liberal Democrat

I thank the noble Lord for giving me a turn.

The case for removing these two clauses has been very powerfully made already and my point is a very simple one which will not take very long. These two clauses, if they remain in the Bill, will put in the hands of a successor Government the essential tools to immediately deliver the very first task set out in the autocrat’s playbook, which is, when you take power, make sure you keep it. In the UK, that means making sure that you have the Electoral Commission under your thumb.

I have only one question for the Minister. Taking him fully at his word that this Government would never in a million years use these powers to distort the actions of the Electoral Commission or to raise the bar for opposition candidates or opposition parties in any future election, what happens when the million years is up? What happens when another Government, less imbued with the deep ethical principles so clearly exhibited by the present Administration, less scrupulous about fair play and with less commitment to truth and accuracy, take office? Can the Minister say to your Lordships, in all honesty, that it will be safe to put these clauses on the statute book, just waiting for that ruthless successor Government to exploit? It could be an ultra-left Government with little regard for constitutional conventions, balancing the books or protecting industry from red tape, and perhaps ready to repudiate international treaties, undermining all those Conservative values that the Minister espouses so much.

Does the Minister think it is safe to leave these clauses in the Bill? I have seen the noble Lord in action. I do not believe that he is either so naive or so short-sighted as to believe it would be safe to do so, and it would not be in the long-term interests of the Conservative Party for these clauses to be in the Bill. I, my noble friends and other noble Lords all around the House have powerfully expressed the view that we are ready to help him get off the hook and to take these two clauses out of the Bill.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Chair, Secondary Legislation Scrutiny Committee, Chair, Secondary Legislation Scrutiny Committee

My Lords, I apologise to the noble Lord, Lord Stunell, and to the House, for having pushed him so rudely.

When one sees the way the tide of opinion is flowing strongly, it is very easy to think that it is best to keep one’s head down and not provide a cautionary word about being careful what we wish for in taking these amendments through—should the House so decide. I note and appreciate the concerns expressed in powerful speeches this afternoon. These are replicated in the briefing from the Electoral Commission referred to by the noble Lord, Lord Grocott. Several letters in the correspondence columns of the broadsheets have carried an equivalent message.

I also recognise that the drafting of parts of these clauses can best be described as uncompromising. The noble and learned Lord, Lord Judge, referred to this, though I think he was slightly dismissive about the consultation processes provided for in Clause 15, in new Sections 4C and 4D. He pointed out that the procedures for scrutinising secondary legislation are proving increasingly inadequate and ineffective for modern conditions. He knows that I agree with him. I am pleased to be able to tell him and the House that the Secondary Legislation Scrutiny Committee, which I chair, will publish a further end of term report at the end of this week. This will give grist to his mill—and indeed to mine.

Among the concerns raised is the use of what can be described as tertiary legislation. I spoke to the noble and learned Lord in advance of this debate, so he knows broadly what I shall say about creating bodies over which there is absolutely no parliamentary control but which, none the less, have powers that concern some of the most fundamental aspects of our society. One recent example is the College of Policing, an independent body able to introduce regulations and codes that affect every one of us.

The noble and learned Lord, Lord Judge, and my noble friend Lord Blencathra have made common cause in attacking this. I entirely support them. To come to the point, I am not yet convinced that, if these two amendments were agreed, we would not be creating another body equivalent to the College of Policing, but this time for electoral purposes—an equally important part of our national life.

Am I enthusiastic about Clauses 15 and 16? Not at all, but I recognise that there is some parliamentary involvement and approval in this process. If these amendments were accepted, the Electoral Commission—with all the criticisms that have been made of it, fairly or unfairly—would float free from any even minor scrutiny or accountability. In my view, this would be even less desirable.

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, it is a pleasure to follow my noble friend Lord Hodgson. I wish him a very happy birthday.

Noble Lords:

Hear, hear.

Photo of Baroness Noakes Baroness Noakes Conservative

I wish to make two points about these amendments. I do so in the hope—but not the expectation—that noble Lords who have set their faces against these clauses will look at them in a more favourable light.

First, all public bodies must be accountable, whether they are independent regulators or carrying out other kinds of function. This should not be a controversial statement. The role of the Speaker’s Committee, as set out in PPERA, with its focus on budgets and plans rather than outcomes and actions, provides a weak accountability framework. Indeed, the report on election fraud from my noble friend Lord Pickles, who I am glad to see in his place, found it ineffective. Clauses 15 and 16 beef up the Speaker’s Committee so that it can hold the Electoral Commission to account on the basis of the policy and strategy statement, remembering, of course, that that statement is not just the creature of government and must be consulted on and approved by Parliament. Anyone who opposes Clauses 15 and 16 really should explain how they would ensure that the Electoral Commission will be properly accountable, because the current arrangements are simply not fit for purpose.

Secondly, there is a myth that the strategy and policy statement is a de facto power of direction or involves giving instructions—I think that was the phrase used by the noble Lord, Lord Grocott—to the Electoral Commission. Clause 15 could not be clearer. There is no obligation on the commission to follow the statement. There is no alteration of the core duties and obligations set out in PPERA. The commission’s only duty is to have regard to the statement and report annually on what it has done in consequence of it. That report might, in theory, say that it has done nothing in consequence of the statement, but given the generally bland nature of these policy and strategy statements, I think that would be unlikely.

The opponents of these clauses, however, say that the strategy and policy statements will influence the Electoral Commission, with the implication that influence is always malign. I believe that the independence of the Electoral Commission is founded in the independence of the thought and integrity of the commissioners themselves, and those commissioners are not appointed by the Government. Genuinely independent commissioners will do what they think is necessary in accordance with their statutory obligations, and they will do that whatever the Government tell them to do. The commissioners are the first line of defence against undue influence. Influence can be a positive thing, too. I hope noble Lords would have no problem if, for example, a statement influenced the commission to focus on important issues such as those that arose in relation to Tower Hamlets. I remind noble Lords that the Electoral Commission did not cover itself in glory when first encountering the issues there. I urge noble Lords not to support these amendments.

Photo of Lord Hayward Lord Hayward Conservative

My Lords, I shall cover two or three points. I shall not go into detail about some of my concerns about the Electoral Commission, except to make a limited comment about difficulties I have at the moment. I will start by referring to comments made by the noble Lord, Lord Grocott, earlier in relation to referees. I wear my rugby referee’s tie with pride today because it is an indication of the impartiality one is required to have under all circumstances. No player or spectator ever accused me of not being impartial. They may have accused me of being incompetent, and did so volubly from the touchline, but they did not accuse me of not being impartial.

I must disagree with both my noble friends Lord Hodgson and Lady Noakes. As far as I am concerned, there are ways of dealing with the problems of the Electoral Commission. As I think many Members know, I have had more problems and more dealings with the Electoral Commission over the last 12 months than virtually anybody in this Chamber—and, my godfathers, does it not drive you barmy? I have sympathy with the Government because they are trying to tackle the problem. All I shall say on my latest difficulty, which has been running for four or five days, is: will the Electoral Commission please look at itself rather than passing to others the responsibility for policing matters—administering elections and the like? This problem has run since 2013 to my full knowledge. It keeps saying that other people need to deal with these matters but it does not look at itself.

These clauses are not a way of tackling the problems that I and others have faced with the Electoral Commission. As the noble Lord, Lord Grocott, said, in effect, they tell us that the home team at a rugby match shall have the right to speak to the referee and tell him how he will referee that game. I am sorry, but I disagree with the noble Baroness, Lady Noakes: if you are giving guidance, however softly and subtly you do it, you are influencing the Electoral Commission and not giving others that opportunity to influence it in the same way. We need to look at the way that the commissioners are appointed, and we may need to look at the way that other organisations around it operate, but the one thing we do not need to do is to tie the commission to guidance from the Government.

The only part of the comments I made when we debated this matter previously that I want to repeat is that I have had the pleasure—or difficulty, for that matter —of being on a panel abroad looking at international elections. That is a process which many Members of this House have participated in. I want the honour— I use “honour” deliberately—of being able to say to other countries, “Look at what we do. Follow that as closely as possible, because that is the best way to run your elections”. However, with these two clauses in the Bill, I am afraid that I could not do that.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat Lords Spokesperson (Cabinet Office) 4:30 pm, 25th April 2022

My Lords, my name is on these amendments. We have had a very powerful debate from all sides of the House, and I suggest that we now ought to move towards the Minister’s response.

I remind the Minister of the constitutional context we are in and of his responsibilities as, in effect, the only member of the Government with responsibility for the constitution and constitutional propriety. Noble Lords may not be fully aware that, since the last reshuffle, there is no longer any Minister within the Government who has been given the specific responsibility of being Minister for the Constitution. The responsibility for this Bill has been moved from the Cabinet Office to the department for levelling up, communities, local government and various other things which provide a very extensive portfolio for Michael Gove. That leaves the Minister in some ways stranded, but in other ways he is the only member of the Government—apart from the Prime Minister himself—who specifically has responsibility for constitutional propriety among his major responsibilities.

The Minister will be well aware that the noble Lord, Lord Wolfson of Tredegar, referred to issues of constitutional principle in his resignation letter and that, before him, the noble Lord, Lord Faulks, also resigned on a matter of constitutional principle. I hope that the Minister will address the constitutional propriety of these two clauses in winding up. After all, we are in a wider constitutional crisis, both domestically—I have referred to the context of that—and internationally, given what is happening in Ukraine and the growth of autocracies around the world.

The noble Lord, Lord Finkelstein, who sadly is not in his place, addressed Britain’s constitutional crisis in his article in the Times last Wednesday. He reminded his readers:

“The British constitution, because it is unwritten, is particularly vulnerable to its limitations being resisted at the top of government … It is the responsibility of parliamentarians, and in particular Conservative ones, to insist” that constitutional rules and conventions are followed. I welcome the reaffirmation made by the noble Lord, Lord Finkelstein, of the Conservative Party’s proud tradition as the constitutional party—from Burke through successive Salisburys to the noble Viscount’s father, Lord Hailsham—and I regret our current Government’s failure to maintain fully that tradition.

I invite the Minister to explain to the House how he considers these proposals to be compatible with Conservative principles of limited government and parliamentary sovereignty. If he cannot reconcile the tried and tested principles of Conservatism—about which he has often spoken eloquently—with these proposals, he should accept that they should be removed.

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, we very much welcome these amendments. We thank the noble and learned Lord, Lord Judge, for tabling them and for his excellent and clear introduction on his concerns about the implications of leaving these clauses in the Bill. I will be brief, as he and many other noble Lords made excellent speeches today.

We have made it extremely clear on previous stages of the Bill’s consideration that we are extremely concerned about its intention to make provisions for a power to designate a strategy and policy statement for the Electoral Commission, drafted by government. As other noble Lords have said, this would allow political interference in the regulation of our elections and calls into question the independence of the Electoral Commission from government and political control. This simply cannot be allowed to happen. It is a dangerous precedent. If we look at similar democracies such as Canada, New Zealand or Australia, there is always a complete separation between government and the electoral commission. It is essential that our regulatory framework strikes the right balance between upholding the independence of the Electoral Commission and ensuring it is properly scrutinised and held to account. The noble Lord, Lord Hayward, made some good points about the fact that we need to look at how it operates, but this is absolutely not the way to go about it.

I remind those noble Lords who have said that this is not of any concern that new Section 4B(2) in Clause 15 says that:

The Commission must have regard to the statement when carrying out their functions”—

“must”, not “may”. That is what really concerns us. We have had many excellent speeches, so I urge the Minister to listen very carefully to what has been said in the defence of our democracy. That is what we are talking about. We fully support these amendments and urge other noble Lords to do the same when this is put to the House.

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee, Minister of State (Cabinet Office), Chair, Intergenerational Fairness and Provision Committee

My Lords, I have not detected universal enthusiasm for these clauses in the debate, but I will seek to persuade your Lordships that they should remain. Of course, in remaining, one of the things they do is provide a basis for further discussion.

Your Lordships’ House is a revising Chamber, but we do not have here amendments to revise. These amendments would simply remove clauses on the basis of arguments which, in my submission, are exaggerated in their concerns, although I understand and share the concerns for democratic responsibility and respect. We have even heard several threats to kill the whole Bill. I must remind noble Lords that this is a Bill that prevents election fraud and abuse; introduces the first controls on digital campaigning; cracks down in many ways on foreign spending; and improves the integrity of postal voting. These are matters which have wide assent across the Chamber and across both Houses. It would not be wise or proportionate for your Lordships to consider killing those proposals on the basis of this particular issue.

Photo of Lord Cormack Lord Cormack Conservative

Would my noble friend accept that if the Government withdraw these clauses, on which there is a great deal of opposition, the Bill will go through? Several of us have said that it has many excellent features. We do not want to kill the Bill, but we do want to remove this anti-democratic element from it.

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee, Minister of State (Cabinet Office), Chair, Intergenerational Fairness and Provision Committee

My Lords, I can only respond to the language I heard in the debate and, of course, that will lie in Hansard. Of course I listen to the range of concerns set out by your Lordships. The main concern that I hear, and understand, is about the potential impact on the independence of the Electoral Commission.

I stated in Committee, and I do so again now, that the Government’s proposals take a proportionate approach to reforming the accountability of the commission to Parliament, which some who have spoken have admitted could be reviewed, while respecting its operational independence. I agree with the noble and learned Lord, Lord Judge, and others that it is vital we have an independent regulator that commands trust across the political spectrum.

By the way, the noble Lord, Lord Stunell, asked would I worry if the Labour Party had such powers on the statute book. I remind your Lordships that the Labour Party is a great constitutional party, and I would trust it to use the responsibilities and powers that it had in an appropriate manner.

In previous debates, parliamentarians across both Houses identified areas of concern with the commission’s work. My noble friend Lord Hodgson of Astley Abbotts spoke to this. Under the existing accountability framework, in practice, parliamentarians are limited in their ability to scrutinise and hold the commission effectively accountable. The report by my noble friend Lord Pickles, whom I am pleased to see in his place, obviously alluded to certain issues that he felt had not been fully addressed. These measures will seek to remedy this by providing guidance, as approved by Parliament, for the commission to consider in the exercise of its functions, and by giving the Speaker’s Committee an enhanced role in holding the commission to account in how it has performed its duties in relation to the proposed statement.

It has been suggested, several times, that the “duty to have regard” to the strategy and policy statement placed on the commission in Clause 15 will weaken its independence and give Ministers the power to direct it. The Government strongly reject this characterisation of the measures. The Electoral Commission will remain operationally independent and governed by its Electoral Commissioners as a result of this measure, after as before. This duty does not allow the Government to direct the work of the commission, nor does it undermine the commission’s other statutory duties.

Photo of Baroness Wheatcroft Baroness Wheatcroft Crossbench

I wonder, given what the Minister has just said, whether he could explain the purpose of new Section 13ZA, on the examination of the duty to have regard to the strategy and policy statement, which states:

“The Speaker’s Committee may examine the performance by the Commission of the Commission’s duty under section 4B(2) (duty to have regard to strategy and policy statement).”

What is the purpose of having the ability to examine the commitment to the policy statement? What would the Government do if it found that “have regard” had not been sufficient?

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee, Minister of State (Cabinet Office), Chair, Intergenerational Fairness and Provision Committee

My Lords, I say to the noble Baroness that it is not a power to direct. The Speaker’s Committee is not a government institution; it is part of the architecture that is there, and has been there, to oversee the work of the commission. That was inherent in previous legislation; this legislation seeks to improve its ability to do so. What the legislation means is that when carrying out its functions, yes, the commission will be asked to consider the statement, but weigh it up against any other relative considerations.

The noble and learned Lord, Lord Judge, knows the respect I have for him. I have enjoyed discussing this matter with him and no doubt may again if he has his way in your Lordships’ House today, which I hope he will not, but our contention is that there are a number of safeguarding provisions around parliamentary approval and consultation built into Clause 15. I outlined that at length in previous debates and will not repeat it here. I believe, notwithstanding the noble and learned Lord’s remarks, that those safeguarding provisions should reassure those who have expressed concerns about strategy and policy statements being drafted by future Governments that may have ill intent.

The statement will set out guidance and principles. We have published an illustrative example, which is hardly the most threatening document ever published in the history of mankind. We ask that the commission have regard to that statement in the discharge of its functions. The statement will provide the commission with a clear articulation of principles and priorities, approved by Parliament, as it is reasonable for Parliament to do, to have regard to when going about its work, particularly in areas where primary legislation is not explicit and the commission is exercising the significant discretion it is afforded in terms of activity, priorities, and approach. My noble friend Lord Hodgson of Astley Abbotts made some important remarks on what he described as tertiary legislative powers.

Under these proposals, Parliament will have an important role in debating and scrutinising the content of the statement, which in turn will influence how the commission exercises its discretion. The noble and learned Lord, Lord Judge, doubted the adequacy of the provision for statutory consultation set out in Clause 15, but I do not agree that a statutory consultation process for the statement is nugatory. The provisions state that the Secretary of State must review and consider submissions from all statutory consultees before submitting a new statement for parliamentary approval. Furthermore, any new or revised statement will be subject to approval of the UK Parliament, thus ensuring that the Government consider parliamentarians’ views and that Parliament has the final say over whether any statement takes effect.

The proposed removal of Clause 16 is also put to your Lordships. It was noted in Committee that the Electoral Commission is already accountable to Parliament through the Speaker’s Committee—this again takes up the point made by the noble Baroness. However, the Speaker’s Committee’s existing remit is narrowly restricted to overseeing the commission’s finances, its five-year corporate plan, and the appointment of Electoral Commissioners. The purpose of Clause 16 is to expand this remit to enable the Speaker’s Committee to perform a scrutiny function similar to that of parliamentary Select Committees. As the noble and learned Lord acknowledged, that committee does not have an inbuilt government majority. By allowing the Speaker’s Committee to scrutinise the commission’s activities in light of its duty to have regard to the strategy and policy statement, we will give the UK Parliament the tools to effectively review the commission and hold it accountable.

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee, Minister of State (Cabinet Office), Chair, Intergenerational Fairness and Provision Committee

My Lords, as the noble Lord knows, the Speaker’s Committee is sui generis. Obviously, it has senior representation from political parties in the House of Commons. I have enormous respect and affection for the noble Lord. It is not reasonable to impugn the integrity of a Speaker’s Committee and I do not think that he was doing so—

Photo of Lord Blunkett Lord Blunkett Labour

I was not, in any way, impugning the Speaker’s Committee. I was picking up the point that the Minister had just made about the corollary of a Select Committee.

Photo of Lord True Lord True Chair, Intergenerational Fairness and Provision Committee, Minister of State (Cabinet Office), Chair, Intergenerational Fairness and Provision Committee

My Lords, I am glad that the noble Lord rose. I had started to make it clear that I was not making any such proposal. The analogy I was using is just a mechanism in terms of the way that the committee will be able to conduct its reviews, effectively holding the commission accountable on a broader range of its activities than is currently allowed in law. As I sought to explain to your Lordships, that remit is currently narrowly restricted.

For the reasons that I have set out, I urge that my noble friends and noble Lords across the House oppose the amendments put forward by the noble and learned Lord, and that Clauses 15 and 16 stand part of the Bill.

Photo of Lord Judge Lord Judge Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Convenor of the Crossbench Peers

My Lords, I thank everybody who has participated, including those Members of the House who do not agree with me. It is fun to listen to alternative arguments.

I have just a couple of points to make. The problem with these clauses is that they were inserted without any kind of discussion. When constitutional issues are being addressed, and when, in particular, the independence of the Electoral Commission and its performance are being addressed, surely, of all things, that is something for cross-party discussion, and it is for the cross-parties to make up their minds how to make the Electoral Commission do its job and perform its function better than it has. That is a matter for Parliament: I am not going to advance different solutions to this, but the problem is that nobody has asked anybody else. That is why I describe this proposal as “new minted”. It is “new minted”, and that is one of its problems.

The other problem is with the phrase “must have regard to”. I “must have regard” to everything the Minister says. I am going to listen to it; I am going to be influenced by it. I might not feel quite as strongly as I did against him—I do not know—but the point is that you have to have regard to the statement by the Minister of the Government’s strategies, priorities and guidance, and that would influence any body of people, however independent-minded they are and wish to be. That, surely, is the point of this legislation. The Government want the commission to be influenced by the strategy and priorities paper.

If the Electoral Commission says, “Well, we have seen what the Minister has to say. We have read the statement and we think it’s a load of rubbish”, what happens then? Apart from anything else, the noble Lord, Lord Pannick, will be briefed on a judicial review by the Government that the Electoral Commission was not exercising its powers correctly, and he would probably win. As I have told noble Lords before, he never won a single case in front of me; and as I have also told noble Lords before, on every occasion when he appealed, he won.

Photo of Lord Pannick Lord Pannick Crossbench

I would just add, on a serious note, that the noble and learned Lord makes an absolutely correct point. If the Electoral Commission said, “We do not agree with this document and we are not going to follow it”, there would be a real danger of judicial review. There would be a real danger, in particular, because this document would have the approval of Parliament, it having been whipped through.

Division number 1 Elections Bill - Report (2nd Day) — Amendment 45

Aye: 265 Members of the House of Lords

No: 199 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Amendment 45 agreed.

Clause 16: Examination of duty to have regard to strategy and policy statement