Moved by Lord Judge
At end insert “and do propose Amendments 23L and 23M as additional amendments to the words so restored to the Bill—
23L: Clause 14, page 21, line 19, after “to” insert “, but is not bound by,”
My Lords, I must get this right. I beg to move Motion A1, as an amendment to Motion A, to insert the words at the end as printed on the Marshalled List. So we are all very much wiser, are we not?
What I am actually talking about is the words in one amendment,
“but is not bound by”.
In the other amendment, the text is much lengthier:
“When the Speaker’s Committee carries out the function in subsection (1)— to which I shall come—
“members who are Ministers of the Crown must recuse themselves.”
So now I hope we know what we are talking about.
On Monday, we had a very interesting debate. A substantial majority of your Lordships’ House—cross-party, I hasten to add—thought it right to remove the two clauses from the Bill. These two clauses have been renumbered, upnumbered and their numbers changed, so I will go back to the original numbers, 14 and 15. We are dealing with the power given to the Secretary of State by this Bill to issue a strategy statement setting out his or her priorities and the guidance to which the commission would have to have regard. This House took the view that that provision would have left the commission exposed and would have been inconsistent with the need for the commission to be—and to be seen to be—independent of the Government and indeed of all political parties.
Perhaps it is just worth looking at the way in which the Electoral Commission came to be founded. The Fifth Report of the Committee on Standards in Public Life used these simple words:
“Those who have advocated the establishment of an Electoral Commission have been emphatic that it should be independent both of the government of the day and of the political parties. We agree. 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.”
Today, the other place has considered the amendments that this House suggested, and it has restored the original Clauses 14 and 15, with some amendments. I welcome the amendments; they are a step forward. But they are a step forward on a ladder on which we had not reached the first rung in the original legislation.
On a separate matter, I am very grateful to the Minister for the conversations we have had. If I may say so, we had a robust exchange of views. I am pleased that there have been improvements, but they do not add very much. What they amount to is this: they make it absolutely clear that the Secretary of State must not issue a statement that might lead the commission to act inconsistently with its statutory duties. Well, that is important, but nobody ever thought that anybody would be able to issue instructions to be unlawful. Well, I suppose somebody might have thought, “We’ll issue instructions to be unlawful”—but I do not think we will consider that in this particular situation. I am perfectly happy to accept that these amendments increase parliamentary supervision of the processes, but I respectfully suggest to the House that, although there is an improvement, it does not address the independence and the perception of independence of the commission.
I respect the decision of the other place—and that is it. I am not seeking to restore the original decision of this House. However, I am proposing that there should be these small amendments to ensure that the independence is established. I also propose to ask the other place to think again about these two amendments; I am not being critical in any way about this because it did not have this material to consider. I will deal with these amendments very briefly, including the words “not bound by”.
I will refer back to the letter which the Minister kindly sent today to all Peers, which includes this passage in relation to “must have regard to”: “The Government’s view is that this duty will not allow the Government to direct the commission’s decision-making, nor will it undermine the commission’s other statutory duties or displace the commission’s need to carry out these other duties. It simply means that, when carrying out their functions, the commission will be required to consider the statement and weigh it up against any other relevant considerations. Therefore, the commission will remain operationally independent and governed by its commissioners”.
I do not understand the words “operationally independent”; the commission is either independent or not. That is at the foundation of the argument against this amendment. Even if it were correct, it does not address this crucial question: the issuing of the statement must mean that the Secretary of State will have an influence on the decisions of the commission. Self-evidently, the commission cannot say, “Aha, here’s the statement, yippee”, and chuck it out the window or put it in the bin. It will influence the decision; that is the point of it and exactly its purpose. On this issue, my amendment is very simple. As I have discussed, I recognise the argument that “must have regard to” also carries this implication of “not bound by”—I do not think that it does, but I recognise the argument. Assuming that I am wrong, and assuming that it does carry that implication, in the context of an elections Bill and the sensitivities which surround all electoral questions, surely it is so much simpler to express plainly and unequivocally in the Bill that the Electoral Commission will not be bound by the statement issued by the Secretary of State. That is what I am seeking with this amendment.
As to the other amendment, your Lordships will remember that I suggested that having two Ministers of the Crown on the commission would ultimately mean that the judge—that is the way in which the commission would do its work—would include two Members of the Government whose Government had issued the statement. In my old life, we called that “judge in his own cause”; that is what it amounts to. Whereas I understand the need for an examination—I am not happy about it, but I understand the argument—it would be much more appropriate and consistent with an independent commission that Ministers of the Crown should not be judging whether or not the commission had followed and had proper regard to the statement given to it by the Secretary of State.
I am asking this House to send back the amendments I have put forward on the basis that the other place could have a chance to look at them for the first time and make up its own mind about whether they are sensible. I urge that they be accepted, that they would make the improvements necessary to the Bill, and that they would make it possible to look everyone in the eye and say, “This is an independent body exercising an independent function”. I beg to move.
I support the noble and learned Lord’s amendments. I will be as brief as humanly possible, first because of his brilliant and forensic analysis of where we are and the importance of the amendments and, secondly, because there has been a tendency over recent times for noble Lords to filibuster their own amendments—I have seen it again and again. Therefore, I just want to comment on the second part of the amendments before us, the recusing of Ministers in dealing with the statement drawn up by the Secretary of State.
The Minister, in dealing with this element, talked about elected Members having traditionally been on the commission. I do not dispute that for a minute, but we are back to where we were when debating this earlier in the week: there seems to be a sad misunderstanding of the difference between Government and Parliament, and the role of Ministers representing a Government dominated by a political party and the role of elected Members, and therefore the commission, in carrying out their duties independently. This is a substantial constitutional matter; I am sorry that there are not more Members in the Chamber to hear it because, obviously, the troops outside will be rallied at the appropriate moment. Given that this is so fundamental to the way in which we conduct our democracy, election processes, and therefore the transparency and trust that people should expect, I believe that we should vote on this tonight. I am surprised that the Minister has not been able to convince his colleagues in the other place that they have got this very badly wrong. I promise them that it will come back to bite them.
I speak to Motion B1. We have already agreed in this House that compulsory photo ID at polling stations is not necessary. At no stage in any of our debates have the Government presented any evidence that compulsory photo ID is necessary, or proportionate, to what they try to claim is a risk of impersonation. In fact, there is proof that impersonation at the polling station is not a significant problem. The number of replacement ballot papers issued in the last general election, mostly because of a clerical error in crossing off the wrong name, was just 1,341 out of over 32 million ballot papers issued. That is an average of two replacement ballot papers in each constituency, or just one for every 30 polling stations. Mostly, they were issued due to clerical error, not fraud. Therefore, spending £180 million over the next 10 years to make photo ID a requirement to be allowed to vote is wholly disproportionate and unnecessary.
In an earlier debate, it was stated by a Minister that if someone claimed your vote, they had stolen it and you could not get it back. However, the replacement ballot paper system means that this is not the case. Unlike someone stealing a parcel of yours at the Post Office, you can get a replacement ballot paper if one has already been issued in your name and an investigation is made, if necessary.
The Minister referred to Northern Ireland and the recent increase in turnout, which I am sure is not due to the popularity of photo ID. If we look back to when photo ID first came in for the 2003 Northern Ireland Assembly election, we see that estimates were that around 25,000 voters did not vote because they did not have the required ID, and almost 3,500 people—2.3% of the electorate—were initially turned away for not possessing the required ID. There are 20 times as many people in Great Britain, so you can do the maths.
However, there is a sensible alternative to the Government’s proposals. It should be seen as a sensible compromise. It would safely address any legitimate concern that the Government claim to have about impersonation at the polling station. Perhaps significantly, it would also fulfil what was in the Conservative Party’s manifesto in 2019.
In addition to the documents considered acceptable to the Government as proof of identity, there is a document already issued to every voter by the official electoral registration officer. That document is the official polling card. In the local election pilots conducted under the Government’s own rules, the poll card was deemed an acceptable form of voter ID in some council areas and was chosen by 93% of voters where it was an option. This compares with 5% choosing to use their driving licence and 1% choosing their passport. Most significantly, the number of voters turned away from polling stations was half the level of that in areas requiring photo ID. That is the real point of the Electoral Commission’s analysis of those pilots.
Every voter on the electoral register is issued with a polling card. There is therefore no additional cost in making it an acceptable form of ID. A fraudster would have not just to impersonate someone at a polling station but to have stolen their poll card in advance. In the unlikely event of it being stolen, it could be replaced, and someone using the original could be arrested at the polling station for using it. So let us offer this compromise from this House. It offers greater security but no discrimination and no great expensive additional bureaucracy.
My Lords, I will not say very much about the amendment in the name of the noble Lord, Lord Rennard, because I wish to concentrate on that in the name of the noble and learned Lord, Lord Judge. All I will say is that I think we need identity cards in this country, full stop.
I feel very troubled tonight. At Second Reading, I made it quite plain that I was strongly opposed to Clauses 14 and 15. I made a similar comment in Committee. On Monday, I was glad to be able to support the noble and learned Lord, Lord Judge, the noble Lords, Lord Blunkett and Lord Wallace of Saltaire, and my noble friend Lord Young of Cookham, when, along with nine or 10 Conservative colleagues, I voted for the amendments in the name of the noble and learned Lord to delete those two clauses.
I am troubled because, frankly, although I accept the good intentions of the Minister, my noble friend Lord True—his integrity is not in any doubt whatever—I do not think that tinkering will really meet the points that were made by those of us who wanted to delete the clauses. It is not for me to say that we should insist, because it is very much the noble and learned Lord’s amendment and he has made his decision, which, again, I respect totally. However, faced with a choice between tinkering and tinkering, I personally think that we have missed the opportunity to put this Bill in order by deleting two clauses that are fraught with danger to our constitution and election system.
The best we can hope for now is really scrupulous post-legislative scrutiny to see how this works out—it is essential that that happens—but we are put under a degree of pressure. Although this is the first stage of ping-pong on this Bill, when I came in this morning, all the robes for Prorogation were hanging up. The Government are clearly determined to prorogue Parliament tomorrow and not to use time later this week—which could have been used—or next week for a battle. I therefore find myself very much in the position of the noble Lord, Lord Coaker, at an earlier stage today, when he praised the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Kerr of Kinlochard, but said, “Really, the time has come”. I believe it is quite clear that the time has come for the end of this Session of Parliament. It is not one that will go down in the history books as a Session of glory or a Session that has enhanced the democratic credentials of government. It will not go down in history as a Session that has seen our country maintain its staunch defence of the rule of law, as it has done in the past, but that is where we are.
Frankly, the most honourable thing I can do tonight is not to vote. I believe that we should have deleted the clauses, but we have not done so. We gave the Commons an opportunity to delete the clauses, but they completely spurned us. They are entitled to do that, but I do not necessarily think that they were wise in taking the line they took. However, that is the line they took, and it is the line they will take if the amendments in the name of the noble and learned Lord, Lord Judge, are passed tonight.
We should just mark this as a pretty sad episode and, as I say, scrutinise the legislation once it is on the statute book. We will need to come back to these issues. We must make absolutely sure that the Electoral Commission is not trammelled in its work and is able, as similar bodies in other democratic countries are, to ensure that our elections are scrupulously controlled, totally impartial and never subject to the whims of any political party—right, left or centre. This is a sad day for me, but that is the conclusion I have reached.
My Lords, I want briefly to refer to Motions B and B1. In this House, we moved and passed an amendment that would have significantly added to the list of possible identifications that could be used by voters. I continue to believe that that would have reduced the risk of genuinely eligible voters finding themselves unable to vote. Nevertheless, that amendment has been substantially rejected in the other place and, as we have just heard from my noble friend Lord Cormack, we are drawing to the end of this Session.
I take some comfort from the words we have just heard from the Minister; I thank him for his engagement with this issue. He assured the House that it will be perfectly possible through secondary legislation to add to the list of identifications that can be accepted. He also assured the House that the Government will monitor the potential for new forms of ID to be used and improvements to the security of IDs, which appeared in our original amendment but have now been rejected. I hope that the evaluation he has promised will show that it is possible to add to the list of further IDs that can be used; that would be desirable. I very much hope that the Minister and the Government will be as flexible as he has said. In the light of his assurances and the clear rejection from the other place, I do not think that it is now our role to pursue this issue further.
My Lords, I support Motion A1, but I want to speak briefly to motion B1, which I also support. My primary concern throughout our debates has been the impact on the ability of people experiencing poverty to exercise their right to vote. I am not going to repeat the arguments, but I hope I can get a couple of assurances on the record from the Minister.
First, I thank him, as I understand he has asked officials to include organisations led by people in poverty— such as Poverty2Solutions and, I would add, the APLE Collective—in their ongoing consultations about the implementation of the Bill, so as to get their expertise on the experience of poverty. I would welcome it if the Minister could place that commitment on the record.
Secondly, I welcome the commitment he has made today to post-legislative scrutiny for evaluation and to keep under review the list of documents that will be acceptable as identification. Ideally, I would like to see a review immediately after the next general election, and I ask that the review looks explicitly at the impact on the ability of people experiencing poverty to exercise their right to vote.
A point I have made consistently is that, yes, while we have looked at groups protected under the Equality Act—although that does not seem to have made much difference to the outcome—it has been quite clear to me that there has been no attempt to look at the impact on people experiencing poverty who are not in a protected group. Given the evidence from the Joseph Rowntree Foundation and others, there is a real danger that their ability to exercise their right to vote will be seriously affected.
So that is all I am asking—those two assurances on the record.
My Lords, in relation to my noble and learned friend’s amendment, I have a short but I believe very important question to ask of your Lordships. What is your Lordships’ House here for if it is not this? My noble and learned friend has demonstrated beyond doubt that there is a risk—a measurable risk, not a fanciful risk—that the Electoral Commission might have its independence damaged and impugned if these amendments are not introduced into the Bill. What would the Government lose by accepting these amendments?
I therefore suggest to your Lordships that we have not yet heard any good reason why these amendments should not be sent back. I am unpersuaded by the argument that because some robes are hanging on hangers somewhere in the building, no doubt losing their creases—which is as good an argument as anything I have heard against my noble and learned friend’s amendments—we should not delay matters for another day, which is available. There is an option: the Minister can go and consult his ministerial colleagues and come back to the House in a matter of minutes and say, “I have listened to the noble and learned Lord, Lord Judge; he has argued a brilliant case and it may well be that he is right”. And if there is a risk that he is right—which is what I believe—we should not let this pass just because it is inconvenient to delay the end of the parliamentary Session.
My Lords, I had not intended to speak, but the fact is that, following what we have just heard, the Order Paper for Tuesday and Wednesday next week has Questions down from noble Lords. It is not as though we are slicing off tomorrow: the Order Paper is there, and it is there for a reason. Somebody worked out, in terms of the management of this place, that the House would sit. People put bids in for Questions, and they are sitting there on the Order Paper. The Minister —to whom I pay tribute for the way in which he has dealt with this Bill—did leave a gap open, which is not completely closed.
On what the noble and learned Lord, Lord Judge, said, we are certainly going to find out what the mettle of the electoral commissioners is made of, as a result of this kind of legislation. This is going to test those individuals—both the officers and the commissioners—in a way that they never contemplated when they applied for or were appointed to their posts.
I do not want to delay the House, but the other day I was reading—and I have not finished it—David Runciman’s How Democracy Ends. I came across this page where he quoted an American political scientist Nancy Bermeo, who had identified six different varieties—David Runciman called them “coups”—of ways in which things get manipulated. These are two of them. I would just like the Minister to explain how this Bill differs from these two examples:
“‘Executive aggrandisement’, when those already in power chip away at democratic institutions without ever overturning them. ‘Strategic election manipulation’, when elections fall short of being free and fair but also fall short of being stolen outright.”
Now where does this Bill differ from those two definitions?
My Lords, I was not going to speak in this debate, but, having listened very carefully, I am deeply troubled at the idea that we would not try to see whether we can persuade the Minister and Conservative colleagues in the other place, right-thinking Conservatives, that there is a significant risk here of gerrymandering elections—something one would think was impossible to imagine in this country.
I think the House has been done a great service by the noble and learned Lord, Lord Judge, who has challenged us to stand up for what we can see is a significant risk. Indeed, when we think about what happens in the other place with the amendments that we are trying to point out are really important to insert in the Bills that are coming through in these final days, we see that they are not even being sufficiently debated. With a significant majority there is a risk that a Government can try to gather for themselves permanent or long-lasting powers that are not designed for the kinds of constitutional arrangements that we have in this country.
I therefore am finding myself deeply conflicted and troubled as to—in the words of the noble Lord, Lord Carlile—what we are here for if it is not consider, and ask the other place to consider, these matters.
My Lords, briefly, we on these Benches will vote for both amendments on matters of principle, because we believe in constitutional democracy and citizens’ rights. Sadly, throughout our discussions on this Bill, the Minister has resisted attempts to discuss this as a constitutional issue and as a matter of principle. Indeed, as the Bill has gone through the Government have removed this area from the Cabinet Office and put it in with housing and local government under the Department for Levelling Up, so that the Commons committee on constitutional affairs will no longer cover such things as this. I regret that, too; it seems to me entirely improper.
I recall the noble Lord, Lord Hannan, making a very powerful speech some while ago on the importance of process in politics. By “process” I take him to mean the way in which we conduct ourselves in the political world, including the rule of law and institutional checks and balances Those conventions of political life are a fundamental part of democracy. That is what this Bill has failed to reinforce. I think we all recognise that a future Prime Minister or a future Government will have to return to this issue and produce a much better Bill that can command more cross-party support.
The amendment in the name of the noble and learned Lord, Lord Judge, addresses the question of parliamentary sovereignty—not Executive sovereignty. My noble friend Lord Rennard’s amendment addresses the question of the right of every citizen to take part in the political life of the country and not to face unnecessary barriers. One of the many adverse effects of the Bill is that it makes it much easier and without barriers for overseas citizens to vote but more difficult for domestic citizens to vote. That is very odd, not entirely democratic and undesirable.
For those and other reasons, and on matters of constitutional principle, which the revising House should have particular concern for, we will vote for both amendments.
My Lords, in his opening remarks, the Minister talked about the post-legislative scrutiny that is going to be on the face of the Bill and said that this would include reviewing and monitoring further forms of acceptable ID. He mentioned that the Bill includes the provision to add further acceptable forms. We welcome that. I hold the noble Lord, Lord Willetts, in the highest regard and thank him for pressing the Government in his previous amendment on the importance of furthering the number of IDs that can be used.
Having said all that, we believe, as the noble Lord, Lord Rennard, said in introducing his amendment, that the Government have simply got it wrong on requiring voter ID to be presented at polling stations. We are disappointed and unhappy that there has been absolutely no movement whatever from the Government on this and that they have not wished to include any further accepted forms of ID in the Bill. If the Bill moves forward on ID as it stands, will the Minister provide assurances as to how the requirements for photo voter ID will be introduced, how local government will be supported, and what mitigations will be put in place to ensure that no elector will be disfranchised as a result of the Bill?
We very much welcome the amendments in the name of the noble and learned Lord, Lord Judge, on the Electoral Commission. There is clear concern, right across this House, about the undermining of the independence of the Electoral Commission. I will not go into any detail because we need to move on. The noble and learned Lord clearly laid out why there are still deep concerns in this House. The small amendments that he has offered would resolve these issues and greatly strengthen the Bill before it reaches the statute book. We agree wholeheartedly with what the noble and learned Lord, Lord Judge, is trying to achieve and support his decision to ask the other place to think once again on what is a matter of extreme constitutional importance.
My Lords, for the convenience of the House—I know it is late and I have made my arguments and placed them before your Lordships—but I was asked a couple of specific questions.
In response to the queries of the noble Baroness, Lady Lister, there has been correspondence with her and officials through the list of organisations that we consulted. We have affirmed that there is and will be ongoing consultation as part of the implementation programme. I can certainly say in the House that we will undertake to continue to consult the organisations that have been discussed as we go forward. I can give her that assurance.
One thing raised in the debate was that the noble Lord, Lord Carlile of Berriew, said that we were doing this because of Prorogation. That was something injected into the debate by another Member of your Lordships’ House. I remain at the disposal of your Lordships. If noble Lords wish to be here again and again on this matter, I will rise to respond. The matter referred to is immaterial.
However, the noble Lord, Lord Carlile, also asked whether I could go and consult colleagues in the other place. Because of the exquisite courtesy of the noble and learned Lord, Lord Judge, the Government had been advised of what he was proposing. When I said to your Lordships that these proposals would not be acceptable to the Government, and potentially, perhaps your Lordships might consider, to the other place, that was not off the cuff; it was an advised response. That is the advised position from me at the Dispatch Box, and should these additional amendments be sent back, I would not anticipate that the short passage of time would alter that advised position.
It is a matter for your Lordships to decide whether you wish to pursue things further. I believe, in all humility, that with the amendments laid by my colleagues in the other place—which the noble and learned Lord has, with his utter civility, accepted—improvements have been made to the position in the Bill. On balance, given what I have said about the Government’s position on this proposition and given the offer on the table, in effect, from the Government in the Commons’ proposals, and given the many changes and improvements that have been made—to the noble Baroness opposite I say that we will of course keep the House informed on the vital measures that we need to take to ensure that people are fully informed—and having listened carefully to another brilliant speech of advocacy by the noble and learned Lord, Lord Judge, the judgment ultimately to be made by your Lordships’ House is whether it is appropriate to continue pursuing these matters for a further stage. I respectfully submit that, given that the Government are not likely to—indeed will not—accept the proposals that have been put forward, it may be to the convenience of all that that is accepted. It is of course absolutely within the right of your Lordships to vote and decide as you wish, but I thought it was important that the House should understand the likely position and the Government’s view of these proposals.
My Lords, I had no doubt whatever that I would ask the House to consider its views and to agree to the Motion in my name. I regret to say this but, having heard the last few observations by the Minister, I am encouraged to make sure that, if this becomes part of the law without the amendments that are included in this Motion, it will be the responsibility of those in the other place who voted for it. Therefore, I respectfully ask the House to agree to my Motion.
Ayes 181, Noes 202.