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Mayoral and Police and Crime Commissioner Elections, Recall Petitions and Referendums (Ballot Secrecy, Candidates and Undue Influence) Regulations 2023

Volume 833: debated on Wednesday 18 October 2023

Motion to Approve

Moved by

That the draft Regulations laid before the House on 6 July be approved.

Relevant document: 47th Report from the Secondary Legislation Scrutiny Committee

My Lords, this statutory instrument is largely technical in nature and makes updates to the relevant electoral conduct rules to ensure effective implementation of measures in the Elections Act 2022 and the Ballot Secrecy Act 2023.

Undue influence is an electoral offence that criminalises behaviour which seeks, in various ways, to coerce a person to vote in a certain way or abstain from voting. The 2015 Tower Hamlets petition demonstrated that protection from undue influence remains highly relevant and important in 21st-century Britain. However, the offence originated in the 19th century and prior to our changes in the Elections Act 2022 was considered difficult to interpret and enforce.

The Elections Act updated the existing offence of undue influence for UK parliamentary and local government elections in England and all elections in Northern Ireland. The revised offence better protects voters from improper influences to vote in a particular way or not to vote at all. It also provides clearer legal drafting to assist authorities in enforcing it. The purpose of these regulations is to apply the updated offence to police and crime commissioner elections, recall petitions, local authority referendums and neighbourhood planning referendums.

Political intimidation and abuse have no place in our society, which is why Part 5 of the Elections Act introduced a new disqualification order aimed at offenders who intimidate those who participate in public life. The order introduces a five-year ban on standing for or holding public office. The Elections Act also extended the powers of returning officers to hold a nomination paper invalid where a candidate is disqualified under the new order and requires candidates to declare that they are not disqualified under it. These changes apply to Northern Ireland and to local and UK parliamentary elections.

The Act also amended the relevant vacancy rules, including for UK parliamentary elections, to reflect the timing of vacancies occurring as a result of the new order and ensure that those disqualified vacate office. This SI replicates these changes for nomination for police and crime commissioner elections as well as for local and combined authority mayoral elections, and updates the vacancy rules for combined authority mayors.

In addition, the Elections Act introduced a new measure to permit greater flexibility in the use of commonly used names by candidates on nomination and ballot papers. This change means that candidates can use their middle name as a commonly used name—an odd omission from previous legislation on this topic—and amends the existing rules for UK parliamentary elections, elections to the Northern Ireland Assembly and local elections in Northern Ireland.

This change clarifies the law for candidates and returning officers. We know that practice has varied on this at times and across local authorities. Therefore, clarification will also provide consistency. This instrument makes the same change to the conduct rules for local and combined authority mayoral elections in England and police and crime commissioner elections in England and Wales. It also amends the nomination paper completed by candidates at these polls to reflect the new provisions.

I turn to the provisions in the instrument concerning the Ballot Secrecy Act 2023 and pay tribute to my noble friend Lord Hayward for his work on this important new measure. The Act introduced two new offences: first, for a person to be with another person at a polling booth and, secondly, for a person to be near a polling booth while another person is at that booth, with the intention in both cases of influencing the other person to vote in a particular way or to refrain from voting. This Act, which applies to UK parliamentary elections and local elections in England, as well as elections in Northern Ireland, aims to provide polling station staff with a firmer basis on which to challenge suspected inappropriate behaviour in polling stations. This instrument completes the implementation of the Act by extending the new offence to police and crime commissioner elections in England and Wales, MP recall petitions across the UK, and local government, council tax and neighbourhood planning referendums in England.

It is vital that these rules be updated in relation to the Elections Act and Ballot Secrecy Act measures to ensure consistency and fairness across electoral law. Applying these measures across the relevant election rules will modernise and strengthen the integrity of voting and offer necessary protection for electors, candidates, campaigners and elected officeholders. I commend these regulations to the House.

My Lords, I thank the noble Lord, Lord Mott, for his helpful and detailed introduction. Paragraph 2.1 on page 1 of the Explanatory Memorandum reflects the complexities of modern democratic citizenship. Its last sentence must be welcomed; it is a definite no to undue influence. Likewise, it is interesting to note in the Explanatory Note

“the amended candidacy rights for EU citizens introduced by section 15 of the Act”—

for example, form 2A on page 14.

Concerning the police and crime commissioner elections, I draw attention most positively to Schedule 5. There are four pages in the language of heaven—the Welsh language from the lovely land of Wales, which is my homeland. You rarely see Welsh on official Whitehall and Westminster papers, and pages 47 to 50 are distinctive; this is good. Were these pages prepared by the department, was it subcontracted to the Senedd or was it entirely the work of the translation service?

Our North Wales Police force is well regarded. It has major challenges and overcomes them. Its terrain is mountainous, coastal and estuarial and exhibits the great earthworks of the early medieval warlords Offa and Wat. They were not specifically dug to keep us warrior Welsh out of Saxon territory, and today they are notable for the Welsh place names on the western side of the earthworks and for the Saxon on the eastern—the Saxon -tons, for example. Commissioner Dunbobbin is excellent, and for ever amidst the far-flung citizenry. I had the honour of teaching his mother, and observe and know him well. Our recently appointed chief constable is on the Welsh speakers course, and I suggest that the noble Lord visits our constabulary; he would be warmly welcomed by a hospitable chief constable and by our diligent commissioner.

I note that Regulation 11 applies to Wales only. The mayoralty of London is fast becoming a great office of state and sometimes appears to rival our premiership: the City, money, influence, Heathrow’s runways and the Met—it is quite a list. The mayoralty of Manchester has been made a great success; a former Cabinet Minister just knows how.

Has former Cottonopolis, now the home of magical graphene, edged ahead of Chamberlain’s second city, Birmingham? For certain, the mayor, the former head of the ubiquitous John Lewis, has brought further fame to Birmingham and—intentionally or otherwise—allied his HS2 thinking to that of Manchester’s mayor. That is quite a local government alliance. The mayoralty of Teesside appears talismanic to His Majesty’s Government, and its noble presence is in your Lordships’ House. Is it appropriate to describe a group of elected mayors as a “clutch” or a “gathering”? Perhaps the pressured PM of the day would deploy the description of a “gang”. Concerning mayoralties, there do seem to be constant, strong, hitherto unforeseen challenges to Downing Street. However, they are all constitutional, democratic and buttressed by the secret ballot of regional citizens.

Lastly, referendums have edged big time into British parliamentary life. Some 53 years ago, when one entered Westminster, they were not there; now, the unforeseen consequences of devolved Governments in Cardiff, Belfast and Edinburgh have manifested themselves over nearly a quarter of a century. For example, in the Covid emergency, central government was occasionally embarrassed by First Ministers who knew how to deploy well-timed televised press conferences. It really can be a challenge when central government is of one political complexion and the other Governments of Britain are of the opposite—so very obviously critical, angry and ambitious, yet legitimate and constitutional.

I am very proud of the Wales Assembly, now the Senedd. It powers on some 25 years; it is but an eye-blink in the great history of Wales, a sort of infinitesimal timeline. Government is messy and always challenging. Constitutional change is often a step in the dark. A referendum on a British scale is truly an “historic midwife”, but it is constitutional of course. I end again by thanking the noble Lord for his helpful introduction.

My Lords, it is a pleasure to follow the noble Lord, Lord Jones, who I think entered the other place at a point when my role in elections was counting the posters as I walked to my primary school, wondering what on earth this was all about.

After our extensive debates on the Elections Act, I do not think we need to spend a lot of time dwelling on these various measures which are necessary following the changes made by that Act, and by the Ballot Secrecy Act that was steered through so skilfully by the noble Lord, Lord Hayward, who I am pleased to see in his place. I will not dwell on any of these measures, except to say that I think they again really illustrate the need to properly codify all of our electoral legislation, as recommended by the Law Commission some years ago. I would be grateful if the Minister, who I can see is nodding, might confirm that the Government are interested in this idea in principle.

I will, however, say today that the Ballot Secrecy Act was necessary, as shown by the legal advice obtained by the Electoral Commission, and that it provides greater clarity for presiding officers. It is clearly right, therefore, that the provisions of the Ballot Secrecy Act apply to all other elections, to referendums and to recall petitions.

My Lords, I first thank the noble Lord, Lord Rennard, for his kind comments. As he knows, and as I think many others in the Chamber also know, he played a prime role in progressing the idea that we should seek counsel’s opinion from the Electoral Commission to establish clarity in relation to the law, to which I shall return in a moment.

In relation to the noble Lord, Lord Jones, I am reminded that in fact, the first time I ever cast a vote in person—I can say it in Welsh, but I am not sure I could spell it if Hansard asked me to check it—I voted in favour of Sunday opening. This was a referendum in Pembrokeshire at the time that I lived there. I will not go down the Welsh language route.

The first referendum was lost; the second was won. In the Marcher area on Sundays, you would see thirsty men queuing for a bus from Wales to Chester.

I thank the noble Lord for that intervention—it saved me from my attempt to speak Welsh.

Before I move on to one or two aspects of this, I seek clarification on what my noble friend the Minister said as he opened the debate: that is, that on page 51, the note refers to a series of different elections with regard to the application of the Ballot Secrecy Act. There is no reference to parliamentary elections but, as I understood it, he was confirming that the Ballot Secrecy Act would be included when it comes to the general parliamentary elections—I note that he is nodding in response to that, and I appreciate it.

As the noble Lord, Lord Rennard, said, the Ballot Secrecy Act was intended to establish free and fair elections, cover aspects of equality and give power to presiding officers to intervene where actions were inappropriate. In my time of progressing what was the first Private Member’s Bill from this House in four years to complete its passage and only the third in 15 years, I learned a lot about the processes that Private Members’ Bills go through in the House. It is tortuous, unnecessarily long and in some cases distinctly disadvantageous to the proposer of the legislation as regards the manner in which amendments from government are considered and the like. I suggest that either the effective second Chamber group of the noble Lord, Lord Cormack, should look at the way we operate, or some committee should do so. Even having navigated the way through the difficulties in the House, Bills from this House go to the bottom of the queue in the House of Commons, whereas Bills from the House of Commons go to the top of the queue in the House of Lords. It seems an unacceptable variation in the process; therefore there are several needs for change in relation to this.

The noble Lord, Lord Rennard, touched on the question of whether the Bill was necessary. As I indicated in the debate on 15 July last year, in which others here participated, it was unclear whether the officials’ advice that it was not necessary to pass my Bill or the Electoral Commission’s broad advice that it was necessary at that stage was a matter for question. Counsel’s opinion came down quite clearly in favour of a need to change the law. However, out of curiosity I would just like to know whether the Minister can say, now or at a later stage, at which point the officials in the department received the Electoral Commission’s guidance. It is relevant to the process of the Bill and the views expressed to Ministers, to officials and to others on the ministerial write-round. I will not go into great detail at this point about my concerns about the handling of that; I put them in writing to the Minister and have received a reply. I have been offered a meeting, which, as yet, has not been taken up. I understand, given the ill health of the noble Baroness, Lady Scott, and the circumstances of these SIs and so on, that things are necessarily delayed. However, I am concerned about the aspect not of the decision-making process but of the accuracy and consistency of the advice that has been given to Ministers on the ministerial write-round.

I am completely in favour of the regulations as drafted in the SI. I am pleased to see that we are making progress on aspects of the Elections Act, as well as the Ballot Secrecy Act. I share the concern that the noble Lord, Lord Rennard, expressed that we really need some form of consolidation of election law. The fact that one has to have a document of this size, which is only one of a series, to implement the legislation because we have to confirm it in relation to each of the different elections that we have in this country, also acknowledging that there are varied systems in Wales and Scotland, shows that, at some stage very soon, the Government should get around to consolidating all the elections law. It would be in the interests not only of us but of those who are obliged to administer the multitudinous elements of law so that we can all vote freely and fairly at any given appropriate time.

My Lords, this instrument applies measures relating to undue influence to police and crime commissioner elections, as well recall petitions and local referenda in England. These provisions seek to provide greater clarity on this offence, including by specifically covering intimidation.

Undue influence and any practice involving intimidation have no place in our voting system. If we want to call our elections free and fair, we must act proactively to stop those who seek to unfairly influence how others vote. It is right that we update the definition of undue influence to accommodate a modern understanding of the phrase in the statute book. The current law was brought into force 40 years ago, and 100% of the respondents to the Protecting the Debate White Paper agreed that a clear definition should be adopted. We welcome this update of the definition of undue influence. It is clear language—not quite the heavenly language my noble friend Lord Jones referred to—and this point was well supported by the noble Lord, Lord Hayward, who has been a great champion and campaigner in this area.

In addition, we welcome provisions to ensure that disqualification orders are effectively enforced and that those served with them cannot stand in relevant elections. We also support the implementation of the Ballot Secrecy Act to the elections covered in this regulation. Alongside that, we welcome clarity on whether a commonly used name can be used on nomination papers.

I want to press the Minister, given that these regulations include provisions relating to influencing individuals to sign petitions: can he explain how these will be applied to e-petitions and can he provide an update on the application of the broader intimidation offences under the Elections Act? Have any charges resulted from these new offences? I look forward to the Minister’s response.

I thank noble Lords on all sides of the House who have participated in what is turning out to be a relatively short debate. I particularly thank the noble Lord, Lord Jones, for his invitation to Wales; I would be more than happy to visit at any time, and look forward to the very warm welcome which he described. With regard to translation, which I think was the core point of what he asked, as per our existing practice, Welsh forms have been translated by Welsh translation services.

On the comments from the noble Lord, Lord Rennard, I guess that, a few years ago, we would have been in a very different place today, on the eve of two parliamentary by-elections. I think the point he made is incredibly important. It would be wrong for me to do anything other than say that I will come back to him, which I am very happy to do in writing.

My noble friend Lord Hayward also commented on the need to bring election law all together and update it. From a personal point of view, I am very much with him on that. Having had more than three decades in front-line politics, I am aware that there may well be a need for change going forward. I will come back to him in writing, because that is the right thing to do.

My noble friend Lord Hayward asked for clarification on there being no reference to general elections in this SI. For the record, let me make it very clear that the Ballot Secrecy Act 2023 applied the new offences to UK parliamentary elections and local elections in England, as well as to elections in Northern Ireland. These regulations ensure the effective implementation of the Act by extending ballot secrecy offences to police and crime commissioner elections in England and Wales, recall petitions, and local government council tax and neighbourhood planning referenda in England. This is why the Explanatory Notes for the SI do not reference UK parliamentary elections.

Regarding the points made by the noble Lord, Lord Khan, I have not got that information in front of me, but I am more than happy to write to him with an explanation.

In conclusion, these regulations are vital to ensure that the changes already agreed in primary legislation are applied to the relevant electoral conduct rules as intended. Failure to do so would create divergence across reserved electoral law, creating confusion instead of clarity. It would be a negative outcome for electors, as well as for candidates, campaigners and elected office holders, as applying these measures to the relevant election rules will strengthen the integrity of voting and offer further protection to those who wish to take part in public life. I hope noble Lords will join me in supporting these regulations.

Motion agreed.