Committee (1st Day)
Relevant documents: 13th Report from the Constitution Committee, 5th Report from the Joint Committee on Human Rights, 21st Report from the Delegated Powers Committee
Clause 14: Strategy and policy statement
A1: Clause 14, page 21, leave out lines 6 and 7
I thank noble Lords and join in the general confusion about where we are up to. I speak in favour of the two amendments in this group tabled by the noble Baroness, Lady Meacher. They seem to be a ranging shot on one of the most important issues embedded in this Bill.
I hope that noble Lords will excuse me if I take this opportunity to explore what the amendments do and why it is so important that they and other matters relating to Clauses 14 and 15 are given serious consideration. These provisions are at the heart of the matter which I want to speak about. The question is really: is the United Kingdom to retain, as one of its trusted institutions and symbols of democratic legitimacy, the Electoral Commission, or is it to join an increasingly long list of countries that have, step by step and little by little, eroded their democratic base, undermined trust in their electoral processes and cast doubt on the legitimacy of their elected representatives?
The Electoral Commission was set up as a direct result of recommendations by the Committee on Standards in Public Life, on which I serve. The committee is chaired by the noble Lord, Lord Evans of Weardale, and its first chairman was Lord Nolan. People refer frequently to the Nolan principles but those are in the guardianship of the Committee on Standards in Public Life; so, we believe, is the Electoral Commission. It is a body which emerged from recommendations presented to the Prime Minister by the CSPL. It has since been overhauled and reviewed by the CSPL and there have been changes made in legislation, again based on recommendations made directly by the CSPL. In a report last year, the Committee made further recommendations to the Prime Minister about changes that needed to be made in response to the inquiry and the evidence that it took. All those recommendations were designed to make the Electoral Commission a more effective body, with clear and specific recommendations on how that should be done in each case.
The Electoral Commission was set up on the advice of the CSPL. It was updated on advice from the CSPL, and the Government have before them clear recommendations from the CSPL on how it could be improved further. Our report strongly emphasised what every piece of evidence showed: that to maintain trust in the electoral integrity of our democratic processes, it was essential that the Electoral Commission retains its independence from political interference—interference from any political party or faction, but particularly from the party in power at any one time. Unfortunately, Clauses 14 and 15 take our country in the wrong direction. The two amendments tabled by the noble Baroness, Lady Meacher, try hard to pull it back from the brink, so yes, they have our support.
At Second Reading, I asked whether the Minister would be ready to hand over to a future radical-left Government the powers that the Bill, in its present form, would give them. He is far too skilled an operator to answer that question, but it is very hard to believe that he would. It could start off with something as innocuous as a requirement for the Electoral Commission to have regard to the Government’s manifesto policies; levelling up, for instance, or maybe levelling down, as will surely be achieved as a completely accidental by-product of other provisions in the Bill.
In many areas, but particularly Clauses 14 and 15, the Bill seems to have been drawn up by people who have never been in opposition, which is startling because the Minister has plenty of experience of that, having lived as an oppressed political minority in the Liberal Democrat-run London Borough of Richmond upon Thames. The Minister may protest that there is to be a comprehensive consultation with various bodies before any strategy statements come into force. Of course, the amendments of the noble Baroness, Lady Meacher, very much bear on the question of the terms and conditions on which such a strategy report might be made.
The Minister might refer me to the elaborate wording of proposed new Section 4C, which is in Clause 14. But when I pointed out to him at Second Reading, as many noble Lords did, that practically every outside body that had expressed an opinion on these changes had strongly advised against them, and that the CSPL itself, which created the commission, had said that our electoral processes must be overseen by an independent regulator protected from political pressures and separate from the Government, and that it must demonstrate its impartiality and effectiveness at all times, the Minister’s reply was that the Government take a different view.
Noble Lords should bear in mind that five bodies must be consulted, according to proposed new Section 4C, before any such strategy document moves forward. It would be interesting to know what they will do when they get their first strategy statement. Actually, we do not have to wonder, as they have already commented on the proposals in front of them. Two opted out in disgust, which is why the Scottish and Welsh amendments flow in the next group. The Public Administration and Constitutional Affairs Committee has strenuously protested and recommended that the Government take these provisions out of the Bill. That is three of them. The Speaker’s Committee is packed with Cabinet Ministers, which is an offence when it is the budget holder for the Electoral Commission—a matter we shall talk about later. It is also worthy of note that all but one of the Electoral Commissioners jointly wrote an open letter of protest, pointing out that this fundamentally undermines their legitimacy and our democratic system. Therefore, of the five consultees in proposed new Section 4C, four have expressed vigorous dissent with the proposal and one is packed with Cabinet Ministers.
Interestingly, neither the CSPL or any local government institution was consulted: the one which created the electoral commission, and the people who will receive the benefit of its administration above anybody else. What we learn from this is that a fig leaf of consultation, even when we have a benign regime such as this, is not a safeguard. Under a less benign regime, as seen from the Minister’s viewpoint, that fig leaf could be gone in the space of a short consultation. I repeat my question: is the Minister completely at ease with the provisions in these two clauses? I and my noble friends are certainly not.
A look at the international stage may help noble Lords to understand our deep unease more clearly and explain why we are so strongly in favour of the Minister giving a fair wind, at the very minimum, to the amendment of the noble Baroness, Lady Meacher.
Any power-hungry regime anywhere in the world, on coming to power and wishing to keep it, looks around to take steps to make that happen without having to take too much account of the vagaries of public opinion, if necessary. Some well-understood steps to take are set out in the autocrat’s playbook. High on the list is undermining the independence of the election regulator. Following that, guidance can be produced that facilitates the selection or deselection of candidates, the application of rules and the prosecution of offences—I will not give away any more trade secrets. But noble Lords can see where that goes by looking at Russia today. Mr Putin’s most dangerous opponent in the last presidential election managed to overcome the requirement to get a million signatures on his nomination form, obviously placed there by the election regulator, but it was deemed that there were a few duds in his list of nominees, and, although he had a million valid ones, he was disqualified for submitting fraudulent names—strictly according to the rules, of course.
Another entirely rules-based democratic disaster is playing out in Hong Kong. Legislation on elections there, largely bequeathed by Britain, has been subtly modified by the applications of government strategies on the election regulator. That should give the Minister nightmares. Candidates there could stand for election only if they had signed up to one of that Government’s key manifesto policies—unification with mainland China. It was hardly a surprise that only unification candidates were elected and that the election had the lowest turnout of voters since British handover.
I ask the Minister to consider a hypothetical UK Government with a majority of 80 and a core policy of rejoining the European Union and the power that these two clauses would give that Administration to facilitate their desired outcome. I ask the Minister for a third time: is he completely at ease with forcing these disastrous and damaging clauses through Parliament?
When the Berlin Wall came down, the United Kingdom Government, driven on by Mrs Thatcher, set up the Westminster Foundation for Democracy as a vehicle to help the newly emerging civic societies in eastern Europe understand the basic rules of a democratic multiparty system. There were many exchanges between politicians of all parties in the UK with civic and political organisations in those emerging democracies as part of that effort, and one group visited the Liberal Democrats as part of that study tour. Members of that group had never heard of knocking on doors and engaging with electors. They were absolutely at ground zero. After a day of seminars and discussions, we had a feedback session. There was a lot of enthusiasm and excitement coupled with some trepidation about the lessons that they had learned and the work ahead of them. However, the spokesman for three dour Albanians simply said, “We prefer to win our elections by administrative means”, and that sounds a great deal more chilling with an Albanian accent.
There are some faint echoes of that today. Mrs Thatcher knew the importance and value to Britain of our soft power and our reputation for robust multiparty democracy, fought on a level playing field with a referee who did not take instructions from whichever club happened to be top of the league when the match was played. Mrs Thatcher knew the value of and invested in democracy. Perhaps in a small way, the responses of those same eastern European nations to the current Ukraine disaster show that it was money well invested. I ask the Minister not to throw all that away. Give some comfort to the noble Baroness, Lady Meacher, and adopt her amendments as a small first step to undoing the harm proposed in the Bill. He needs to take these two dangerous clauses out of the Bill, and my noble friends and I will energetically make that case in the debates that follow.
My Lords, when the noble Baroness, Lady Meacher, came into the Chamber, I do not think that she was expecting to have to move any amendments, and when I came into the Chamber, I certainly was not expecting to speak on any of them. But in a few sentences I would like to inject a broader perspective.
At the moment, we see a conflict between democracy and totalitarianism in Ukraine such as we have not experienced since the end of the Cold War. Democracy must win. But at this very perilous moment, the Government are introducing measures to shackle the independent Electoral Commission and put in its place the will of government Ministers. The Minister may say that they have no intention of doing anything naughty, but I would not trust him on that and, even if I did, I certainly would not trust every subsequent Government to go the same way. This is a disgraceful proposal. It undermines the democratic case that we are making to the world, and I hope that the Committee will have none of it.
My Lords, this is the most extraordinary debate that I have ever taken part in, with the noble Baroness, Lady Meacher, first disowning the amendment in her name on the supplementary list of amendments and then moving it formally but not explaining what we are debating. I hope that the noble Baroness remains to withdraw her amendment at the end. Otherwise, we may be in a little trouble.
I was unable to take part at Second Reading on this Bill because I was not in the country, but I have of course read Hansard on that debate and I hope to take part in the remaining stages. I will not range as widely as the noble Lord, Lord Stunell, because I hope to say more about Clause 14 generally when we get to the stand part debate, where I think it would be most appropriate. But I will say a couple of things about the two amendments in the name of the noble Baroness, Lady Meacher, because neither of them is necessary.
Amendment 4A states that the Electoral Commission only needs to comply with the strategic and policy statement if it conforms with its own objectives. The amendment is unnecessary because the only requirement in new Section 4B in Clause 14 is for the commission to “have regard to” the statement. Nothing compels the commission to do anything specific as a result of the statement being published, and nothing in Clause 14 changes the requirement for the Electoral Commission not to do anything which conflicts with its statutory duties. In short, its regulatory independence is already protected by Clause 14.
I was somewhat mystified by Amendment A1 which removes the role and responsibilities from the strategic and policy statement. These strategic and policy statements merely set out what the Government’s priorities are and what the Government see as the role and responsibilities in relation to those priorities. It does not override the commission’s independence but gives guidance as to the Government’s priorities and of course those priorities will be approved by Parliament. Public bodies do not exist in a vacuum; they exist in a political context. The strategic and policy statements just give that context—nothing more, nothing less. Clause 14 does not impact on the independence of the Electoral Commission.
My Lords, this is an astonishing Bill. I understand why there was confusion at the start; I do not blame the noble Baroness, Lady Meacher, in any way and I hope no one else will, given what we are facing today.
This is an outrageous Bill in almost every way: a 171-page compendium of political bias. In the case of the Electoral Commission, I can understand why the Government are embarrassed. As I understand it, the commission pointed out the kind of money that the Conservative Party was getting and where it was getting it from. Given that we are now in the middle of a war in which the Russian state—Mr Putin and his cronies—are invading Ukraine, the fact that some of the money was coming from Russian sources must be an acute embarrassment to the noble Lord and his cronies. That is why they do not like the Electoral Commission.
We just have to look at what is in the news today about the Charity Commission. The story is that the Government are about to put in a Tory placeperson—a placeman, as it happens—as the chair of the Charity Commission, as they have done before. This is what they do, and it is happening throughout our public system. A Member of this House, who used to be a Labour MP, has been appointed to post after post because they supported the Government in the last election and supported the Vote Leave campaign. It is cronyism squared—cubed, probably.
The Liberal Democrats mentioned the Westminster Foundation for Democracy in a speech earlier. I used to be a board member of that foundation and am now on the executive of the Commonwealth Parliamentary Association. We are about to have a seminar, with representatives from all around the Commonwealth, at which we will be talking about good governance. How on earth can we try to put forward the idea that this so-called mother of Parliaments is an example of good governance if this Bill becomes an Act? We must do everything we can, not just to amend it but to scupper it.
Look at today’s amendments: after the two from the noble Baroness, Lady Meacher, we have over 100 government amendments. What on earth is going on with this legislation? We will soon be moving towards Prorogation and the Queen’s Speech. This Bill should be totally abandoned. In many ways we are wasting our time going through amendment after amendment; I do not think there is any prospect of the Bill moving forward.
I am a member of the Parliamentary Assembly of the Council of Europe and the Organization for Security and Co-operation in Europe Parliamentary Assembly. We go around monitoring elections in other countries and we see what happens. If there is no effective independent electoral commission in a country then we criticise that and say it is not a proper democracy. How can we properly participate and show face in these countries if this Bill becomes an Act? It is just outrageous.
I know the Minister has an impossible task. Those of us who have been in the House of Commons know the kind of debates that take place there. Regrettably, the House of Commons these days is not taking the time—it does not have the time—to examine 171 pages and all these amendments in detail, let alone their implications for our democracy. We are dealing here just with the Electoral Commission but there is a whole range of other issues, such as identification, which will make the opportunity for ordinary people to vote much more difficult.
As I say, the House of Commons has not given this legislation the kind of scrutiny that its Members ought to have done. They understand elections more than we do; they take part in them year by year, so they understand the implications of the Bill. We have a responsibility to go through the Bill line by line, but there is no way we can do that in the next couple of months. I hope that at some point—even if not now, it is inevitable that this is going to happen—the Minister will throw in the towel and say, “This is just not going to proceed”. If not, I warn him that we on this side of the House—and I think the Liberal Democrats are filled with the same kind of enthusiasm and determination, as are the Greens and, I suspect, a huge number of Cross-Benchers—will do everything we can to undermine and thwart the Bill and make sure that this abortion—no, that is not the right word.
My Lords, I apologise that I cannot be here for the whole of today. When I spoke at Second Reading, I made my reservations about the Bill quite clear. There are certain aspects that I support, such as tidying up postal voting, but all that that needs is a short Bill.
It is grotesque that we have this Bill before us while people are literally dying for democracy. The best, most seemly and most honourable thing that we can do is to delete these clauses completely from the Bill. They have no place in a Bill of this nature in a country that prides itself on being the mother of Parliaments—it is not the institution, by the way; Bright’s quotation was that the country was the mother of Parliaments, and that is what we are. It is a heritage that we should do everything we can to cherish and preserve. We are exceptionally fortunate in the democracy that we have, warts and all. While people are being mown down in Ukraine and while brave people in Russia, in St Petersburg, Moscow and other cities, are going out on to the streets to protest, knowing that if they are arrested then they might face 15 years in jail—we heard earlier in our deliberations today of that poor man or woman who was in jail in Belarus in a tiny cell with 15 others, all of whom were smokers—we have an absolute duty to cherish and preserve our democracy.
A democracy needs to have a monitoring body. I spoke for the Conservative Party from the Front Bench in the other place when the Electoral Commission came into being. As we said at Second Reading—my noble friend Lord Hayward made this point—it is certainly entirely appropriate to review its operations after two decades, but to shackle it in such a way that the Government are in a position to dictate what it does is utterly and completely wrong.
There is no point in my noble friend, for whom I have considerable affection and regard, pretending that this Government do not mean any ill. I am perfectly prepared to accept that they do not mean any ill, but what if Mr Corbyn had had charge of this? Would we on our side of the House have thought it appropriate that a Corbyn Government should have the power to dictate to an Electoral Commission? One only has to state the words to underline their absurdity. I hope my noble friend will not see that we have protracted debate on this but will say that these clauses should go, and that we do not have to debate them further.
It is a touching gesture. Anybody who considers himself or herself a parliamentarian should be opposed to this particular part of this particular Bill. I hope that message will be received by my noble friend and that he will realise that it should not be his mission to undermine, however indirectly, our parliamentary and electoral democracy because, of course, this applies to elections as well and not just to Parliament.
We are much in the debt of the noble Baroness, Lady Meacher, for tabling these amendments. She introduced them with remarkable brevity. Let us have done with this.
May I ask my noble friend before he sits down just to clarify his comments about the amendments from the noble Baroness, Lady Meacher? Will there also, as I see it, be an opportunity to comment in more detail when we debate the clause standing part? That may be the occasion when I comment on his generous comments about me, for which I thank him.
My Lords, I was not intending to speak on this part but I feel very queasy about the way a number of noble Lords are using the situation in Ukraine to have a go at this part of the Bill. People are indeed dying for democracy, but they are not dying to defend an Electoral Commission—an unelected quango in the UK. I think it is rather unbecoming to use that.
The Electoral Commission is relatively new to the UK’s democratic life and democracy thrived when it did not exist. At the very least, we should stop aggrandising the Electoral Commission as though the electorate depend on it. There are problems with it and there are problems with the way the Government are trying to deal with it. I am not necessarily defending the Government’s way of solving the problem of the Electoral Commission—
The noble Baroness said that we had a functioning electoral system before we had the Electoral Commission. The commission was a move to improve it, just as votes for women was a very great step forward. I am sure she would not want to go back to the time before that.
I appreciate that I am surrounded by Labour noble Lords who object to what I am saying. One of the great advantages of votes for women was that occasionally we get to say the odd thing that does not go with the grain.
I am raising the problem that the Electoral Commission is not necessarily all good. I want to say this about it. There was a great deal of dissatisfaction about the Electoral Commission’s lack of independence in its response to the 2016 referendum, which I referred to in my Second Reading speech. Such were the concerns about the bias of the Electoral Commission in that period that it had to apologise for the bias of many of its members. This is not me saying it—I am quoting the Electoral Commission, which we are all told we have to listen to.
The bias led to many voters feeling that the Electoral Commission was not fit for purpose and was in fact biased against their wishes as an electorate in that referendum. Many of those people were not Tory cronies but Labour voters—Labour voters who may no longer be Labour voters because they became disillusioned by the fact that the Labour Party told them they had got it wrong, they were duped and they needed to think again. While the Labour Benches are very keen on democracy, they were less keen on the democratic decisions of many of their voters in 2016 and subsequently.
At the very least, therefore, it is important that we look at the role of the Electoral Commission critically and seriously. I do not think the way the Government have gone about reforming it will clarify or help things. I will make those points another time. But to say, as has just been said by a number of noble Lords, that we have a responsibility to take the Bill and thwart it, scupper it, throw it out and all the rest of it, seems to me rather to fly in the face of democracy. A little humility is maybe needed to remember that the plans for the Elections Bill were in the Conservative Party manifesto—which noble Lords will be delighted to know I did not vote for, before they all start.
Nevertheless, I clocked that they were there. We in this House are unelected legislators and need to take at least a smidgen of note of what the electorate might consider priorities. Not everything is a Conservative Party plot but one reason many people voted for the Conservative Party in 2019 was that they felt abandoned by the opposition parties.
My Lords, I want to make a Committee point, if I may. Even though I agree with the general statements that have been made about the deep undesirability of Clauses 14 and 15, and the danger they represent to the reputation of this country as a guardian of democracy, my noble friend made quite clear that we would want to see those clauses removed but also indicated his support for the noble Baroness’s amendments, which would ameliorate those clauses slightly if the Bill were to retain them. I am very keen that the Bill does not retain them.
The amelioration has its limits and, in that context, I want to remind the Committee of the report of the Constitution Committee on the Bill in this respect. Paragraph 39 says:
“We are concerned about the desirability of introducing a Government-initiated strategy and policy statement for the Electoral Commission. The proposal will open up to risk the independence of the Commission … it would be dangerous if the perception were to emerge that the Commission is beholden to the Government for its operation and delivery.”
The weakness of the noble Baroness’s amendment, which I know is well intentioned, is that the statutory status of the statement remains and she creates a rather interesting situation, which I had not seen in legislative form before, in which the commission can carry out what the Government suggest if it already agrees with them, which would be a new kind of statutory position. The fact is that there would still be a statement that had some degree of statutory authority behind it.
Governments and governing parties can always criticise what the Electoral Commission says and does and have shown little hesitation about doing so over the years. There has never been a limit on the ability of the Conservative Party to say what it disagrees with in the Electoral Commission’s work. But to create a statutory process, even with the consultation involved, and produce from that a statement which explicitly or implicitly appears to bind the Electoral Commission is highly dangerous. I see that statement as addressing priorities of the commission. Is the commission spending too much time on political finance and donations? Is it spending too much time trying to register groups of people in this country? Should it spend more time trying to find more overseas voters? Such issues are not things on which we want to see the Electoral Commission steered by a statement that has any authority from statute. Let parties both in government and outside it continue to express their views and, indeed, their criticisms, but do not build into our statutory system that kind of statement.
My Lords, I put my name to the amendment in the name of the noble Lord, Lord Wallace of Saltaire, which my noble and learned friend Lord Judge will move this afternoon. As I may not be able—depending on the progress of business—to speak then, it may be for the convenience of the Committee if I make a very short intervention now.
I spent last night reading the illustrative example of a strategy and policy document issued by the Government in September. This document is no doubt designed to reassure but we are left with the question of how much further this clause gives an opportunity to a Government to go in regulating the activities of the commission. That is the subject that should worry us.
The question that I have upmost in my mind is: why have the Government felt it necessary to take this power? The answer may be the one that the noble Baroness, Lady Fox, gave; they feel that the Electoral Commission did not behave properly on the Brexit debate. It will be interesting if the Minister explains that that is the reason. But even if the Electoral Commission fell short of what was expected of it at that time, the right way to deal with that is not by the Government taking powers to direct it. That is why these clauses are very worrying and I hope they will be omitted from the Bill.
My Lords, the processes of your Lordships’ House are enclosed in layers of impenetrable language, punctuated by archaic ritual and layered in complex paperwork that can confuse even the veterans among us. For International Women’s Day I have been exhorting the young people of Britain, particularly young girls, to watch the House of Lords—with some trepidation because it is not easy to understand if you just switch on Lords TV.
Many noble Lords will have noticed, in the great increase in our piles of letters and emails in our inboxes, that the House of Lords is—this is responding particularly to the comment of the noble Baroness, Lady Fox—a place where democracy is being defended. Several noble Lords have said, “Oh well, we don’t have to worry about this Government having the power of control over the Electoral Commission; it’s some other putative Government we are concerned about.” However, when I look at the police Bill, the judicial review Bill, the Nationality and Borders Bill and many others, and I look at my postbag of people saying they are concerned, I know that the public are asking us to represent them, and we have to worry about this Government as well as any potential future Government.
As a further piece of evidence, noble Lords may have seen, a week or so back, the Democracy Defence Coalition’s giant van and billboard parked—deliberately—outside Millbank House, where many of us have offices. That organisation represents hundreds of thousands of people who are concerned about this Bill. The top line in their list was concern about the independence of the Electoral Commission, which is what these amendments seek to address—particularly Amendment 4A.
Coming to the detail of this, I entirely understand the impulse from the noble Baroness, Lady Meacher, to try to put some controls and limits in. But the only way forward is to get these clauses out of the Bill. More than that, I agree with the noble Lord, Lord Foulkes, and others, that this Bill is an absolute mess. As others have said, the number of government amendments makes that very clear. We must not be proceeding with this Bill as an absolute minimum at the moment.
My Lords, I thank the noble Baroness, Lady Meacher, for tabling these amendments and setting an example for all of us in Committee to present our amendments with such brevity in such a concise nature. I declare my interests in the register which are relevant to this Bill.
The noble Baroness’s amendments do their utmost—if these two clauses are to remain part of the Bill—to keep the Electoral Commission as independent as possible from government interference. It might be worth looking at a dictionary definition of independence. It is: the ability to go about one’s business without being helped, hindered or influenced by others. The Minister may say that this is trying to help the Electoral Commission. Independence means that you stay out of the function of that commission.
In response to the noble Baronesses, Lady Noakes and Lady Fox, we have to be very clear what the amendments are trying to omit. The role of the Electoral Commission is not to carry out the priorities of the Government. Yet we see in new Section 4A(2)(b):
“The statement is a statement prepared by the Secretary of State”—
a Cabinet Minister—
“that sets out … the role and responsibilities of the Commission in enabling Her Majesty’s government to meet those priorities.”
The role of the Electoral Commission is not to meet the priorities of Her Majesty’s Government, it is to ensure free and fair elections for all parties—not at the behest of one political party. That is why these amendments, if the clauses stand part of the Bill, are important.
At Second Reading I said to the Minister that when the noble Lord, Lord Cormack, and I are together, there must be fundamental flaws in the Bill. With what the noble Lord, Lord Cormack, has just said, I feel like calling him my noble friend on this particular issue. His powerful words—as upsetting as they are to some noble Lords—are absolutely correct. At this time, when people are fighting for the basics of freedom and democracy, it is wrong that we are having to debate a Bill which tries to put the Electoral Commission’s strategy and priorities in alignment with those of Her Majesty’s Government—a political party. Those are not the free and fair elections which are the basis of a strong, functioning democracy.
It is for those reasons that if at a later stage your Lordships decide to see Clauses 14 and 15 stand part of the Bill, these amendments at least try to bring back a semblance of independence and take away the role of government. That is why these Benches support the noble Baroness’s amendments as drafted.
My Lords, it is a pleasure to follow the noble Lord, Lord Scriven, and we agree with everything he has just said. This is the beginning of our debates on the Elections Bill, so I start by thanking the Minister and his officials for taking the time to meet me and my colleagues to go through some of our concerns.
I turn to the amendments in the name of the noble Baroness, Lady Meacher—again, it is unusual to find such brevity in an introduction—which draw attention to the link between the Electoral Commission and the Government. The noble Lord, Lord Stunell, gave a very clear overview of how the Electoral Commission came into being. He also talked about some of the comments from the Committee on Standards in Public Life.
Our concern is with Part 3 of the Bill, and Clause 14 in particular. We believe it represents a deeply worrying step for our democracy. The Minister and his Government might like to think that it is their party in government today, but legislation is for future Governments. This could be for other parties, including parties not represented in this Chamber. It is not for any Government to dictate the priorities of an independent watchdog, yet these proposals, as we have heard, allow the Government of the day to set the agenda of the Electoral Commission.
The Electoral Commission regulates the elections in which Governments are elected. It is very important that the Electoral Commission has independence from the Government of the day. The existence of an independent regulator is fundamental to maintaining confidence in our electoral systems and, therefore, in our democracy.
That is particularly important when the laws that govern elections are made by a small subset of the parties that stand in elections. Many parties that stand in elections in our country do not have Members of Parliament, and much of the legislation here will be done as secondary legislation, so the commission’s independence needs to be clear for voters and campaigners to see. It must be viewed as fair and impartial. As we have heard, no organisation has given these proposals its full support.
The noble Lord, Lord Stunell, referred to the consultation around the statement, but I have to say that consultation on these proposals so far does not exactly fill me with confidence. If the Committee will bear with me, I will just refer to the Government’s response to PACAC’s fifth report around consultation. In the report, the committee
“urges the Government to provide guidance, as a matter of urgency, on the proposed consultation mechanisms, which should be agreed with the list of statutory consultees in advance of publication.”
The Government’s response says:
“The consultation mechanism for the designation of the Strategy and Policy Statement is already outlined in detail in new sections … Those statutory consultees are: the Electoral Commission, the Speaker’s Committee on the Electoral Commission, and the Public Administration and Constitutional Affairs Committee.”
But parliamentary consequences of the recent machinery of government changes, whereby ministerial responsibilities for elections now sit with the Department for Levelling Up, Housing and Communities, will mean that the Public Administration and Constitutional Affairs Committee may need to be replaced with the Levelling Up, Housing and Communities Committee as a statutory consultee on the statement. Considering that PACAC was one of the organisations most critical of the Bill in its response, I find it very concerning that it is being threatened with removal. I would be very interested to hear the Minister’s justifications for that.
Furthermore, in the response:
“The Government notes the Committee’s suggestion to set minimum timeframes for consultation but considers it would be disproportionate and unnecessarily burdensome.”
Again, I ask the Minister why. Consultation used to be my profession; I was an associate at the Consultation Institute. We lay out best practice for consultation and that is not best practice.
The Minister has previously said that it is important that we have independent regulation so that the public can have confidence in our elections. But the implication of this is that we do not currently have independent or impartial regulation of elections. It implies that somehow the Electoral Commission, as currently constituted, is fundamentally flawed and failing in its duty. That is a substantial claim, and I have seen no evidence for it.
My noble friend Lord Foulkes talked about the importance of good governance and how the proposals in this Bill completely undermine that. He also talked about how we monitor elections in other countries and how on earth we will continue to be taken seriously in the future if we have basically kneecapped our own Electoral Commission and are bringing in many of the other measures in this Bill.
The Electoral Commission is already accountable to the House through the Speaker’s Committee. There are regular questions in the Chamber of the other place precisely to provide some of that accountability. The members of that committee scrutinise the operation of the commission, and there are also procedures at Holyrood and at the Senedd in Cymru to ensure the Electoral Commission self-accounts for its operations in those parts of the United Kingdom. These proposals threaten to end the commission’s independence and put control of how elections are run in the hands of those who have won them, which cannot be right. These look like the actions of a Government who fear scrutiny, and I suggest we have seen that in other legislation in recent times. I ask the Minister: under the current proposals in the Bill, will Parliament be able to amend the statement?
The government response to the PACAC report says:
“Further, to support parliamentary scrutiny during those debates, the Government also provided an illustrative example of the Strategy and Policy Statement which parliamentarians will be able to use to supplement their views.”
We have heard what that looks like from other Members so, again, I ask the Minister exactly how that is supposed to replace the current system and provide sufficient scrutiny going forward.
Elected representatives have an active and vested interest in the regulation of elections, even more so for a Government who have been elected and want to remain in power. It is not right that such a Government can direct the body that oversees what is supposed to be an impartial process. A country where the Electoral Commission is told what to do by the Executive is not a country with free or fair elections. The regulator has to be independent and impartial and must not be subject to political control. I say to the Minister that that message has come across from the majority of noble Lords who have spoken so far today.
We completely understand the aims of the amendments from the noble Baroness, Lady Meacher, and why she is trying to make an appalling situation better and, as the noble Lord, Lord Stunell, said, “pull it back from the brink.” But we agree very strongly with the noble Lord, Lord Cormack, that it is grotesque while people are dying for democracy and that the most honourable thing to do is to delete these clauses from the Bill. Our position is that they should not stand part of the Bill and should be removed. I look forward to the debate on this, which we will come to later today.
My Lords, I thank the noble Baroness opposite for her kind remarks at the outset, and make clear that I have been privileged by and welcomed the discussions I have had with her and other noble Lords in the passage of this legislation so far. I give an assurance to the House that I will always be open for those discussions. We may not agree, but I am concerned to hear the opinions and seek to address the concerns of noble Lords on all sides. I may not be able to succeed, the Government may not be able to succeed, but that is the spirit in which we should go forward.
I hope the one thing we might agree on is our revulsion and scorn—and hatred, actually, which is a word I do not use often—for the activities of the Russian Government and army in Ukraine. But I beg that the enormity of what is happening there should not be adduced as an argument in questions of judgment about the degree of our regulation of electoral amendments, which this amendment before the Committee is about. I do not believe it is comparing like with like. I thank the noble Baroness, Lady Meacher. She seemed a little surprised, but I thank her for putting these amendments before the Committee.
I noted that the noble Lord, Lord Stunell, was in his place and rose swiftly to read a 13-minute speech on these amendments to the House. Perhaps, he was not as surprised as the noble Baroness, Lady Meacher, by the events which occurred.
I did not intervene in the debate because the glory of this House is that it is a free House; it is the master of its own procedures and its own way of going forward. The group of amendments we have just discussed has nothing to do with excising Clauses 14 and 15. There is no amendment to Clause 14, and the noble Baroness suggests leaving out two lines and adding a couple of points to Clause 14. On the Order Paper, we have a clause stand part on Clauses 14 and 15. The appropriate procedure, I venture to suggest, with the greatest respect to your Lordships’ House—protecting and arguing for your right and freedom of procedure, which I, as a Member of this House, regard as one of its glories—is that we should address in Committee points that are before the House in Committee.
No, I said that what was before the House was not a clause stand part debate. I will address the amendment before the House. The proposal to excise Clauses 14 and 15 comes later today, in the sixth group, in your Lordships’ House. The noble Lord, Lord Butler of Brockwell, actually said—
My Lords, I am doing my best, on the basis of only 20 years’ experience in this House, to follow the Minister. Is he saying that he is going to try to improve a clause in Committee, when later we are going to have an opportunity to choose whether to reject the clause as a whole? Of course, we must do both. I hope that it is rejected eventually but in the meantime, the amendment of the noble Baroness, Lady Meacher, goes some way to mitigating its worst features.
No, I am not saying that in the slightest. I will address the amendments of the noble Baroness, Lady Meacher, because that is the proper thing to do in Committee. All I respectfully submit to your Lordships is that, if there is a clause stand part amendment—the noble Lord, Lord Butler of Brockwell, made a clause stand part speech because, as he explained, he is not going to be here later—then the appropriate place for it is probably within that debate. The noble Lord—
Following on from my noble friend, I have only been in this House for 16 years, so I am a relative newcomer compared with some Members, but I have sat through lots of Committee stages. I say this with great respect to the noble Baroness, Lady D’Souza, as she is a former Speaker: in the first debate in a Committee, I have often seen Members take the opportunity to speak more widely than the specific amendment. I do not think that either Back-Benchers or, particularly, the Front Bench should object to that.
No, and the noble Lord, for whom I have the greatest affection, is never slow in coming forward in such debates. Indeed, he used the amendment to say that the whole Bill should be thrown out, not just these two clauses. I assume that he includes in that tackling postal vote fraud, clarifying law on digital campaigning, protecting voters against intimidation and various other things in this legislation. Do I infer that the noble Lord, as he said in his speech, would like to throw the whole Bill out?
I look forward to the evidence being put forward about postal vote fraud. I have certainly not seen a lot of it around where I vote; I have not seen any intimidation at all. Anyway, these things could be dealt with in different ways.
I slightly object to that, because the Minister is extending a response to one point to a general point. He was able to read the Second Reading speeches of all noble Lords, including mine and that of my noble friend, which made our position on postal votes and on intimidation absolutely clear. For the record, I hope that he will understand what the Labour Party’s position is.
I agree completely with what my noble friend has just said. I was saying that there are different ways of dealing with this, rather than in this huge omnibus Bill which deals with so many things and does not allow us to scrutinise matters such as postal votes, fraud and intimidation. These should be dealt with properly, and given the time needed to consider them properly, rather than in this mammoth compendium of a Bill.
I anticipate that we will discuss all those things. I intend, if nature allows, to be present for every hour of Committee on this Bill and every hour on Report, and to give full attention and respect to everything your Lordships say. Perhaps I could get on with the amendments before the House—
I would have done so slightly quicker if the noble Lord had not intervened.
The suggestion before the House, which I will deal with later, is that the Government are attempting to interfere with the operational independence of the Electoral Commission. We contend that that is a mischaracterisation, and I will deal with that at the appropriate time. Reference has been made in the debate to the illustrative statement the Government have published for the Election Commission, which we will discuss later. I hope that all noble Lords will have a look at it. It states:
“This Statement does not seek to interfere with the governance of the Commission, nor does it seek to direct specific investigative or enforcement decisions of the Electoral Commission. This Statement does not affect the ability of the Commission to undertake enforcement activity as they see fit”.
The Government are not seeking to direct, as has been submitted, the Electoral Commission. Amendment 4A seeks to amend Clause 14 so that the commission only has to consider following the guidance in the strategy and policy statement if the commission considers that the guidance aligns with its own objectives. As I have set out, the duty on the commission to have regard to the statement on the discharge of its functions contained in Clause 15 is not a directive; it simply asks the commission to consider the guidance. This protects the operational independence of the commission and means that the amendment is unnecessary.
Amendment A1 would remove the provision for the strategy and policy statement to be able to set out the role and responsibilities of the commission in enabling Her Majesty’s Government to meet their priorities in relation to elections, referendums and other matters in respect of which the commission has functions. First, on a technical note, this amendment would not limit the scope of the strategy and policy statement, as intended, as the clause would still provide for the statement to set out guidance relating to particular matters in respect of which the commission has functions. Secondly—and we will debate this later—it is entirely right that the Government should include within the statement the role and responsibilities of the commission in enabling the Government to meet their priorities in relation to elections.
For any Member who has not already seen the illustrative strategy, I say again that I hope noble Lords will review the document, and that many will find it to some degree reassuring—to the use the phrase of the noble Lord, Lord Butler—and hard to disagree with the content. However, I will listen to the comments on that, as on anything else. The statement sets out the Government’s expectation that the commission should tackle voter fraud, improve accessibility of elections and increase participation. I hope we can all agree that these are important aims that it would be wholly appropriate for an electoral regulator to support. For these reasons, I hope that the noble Baroness will withdraw her amendment.
My Lords, I thank the Minister for his response to this excellent debate. I did table these amendments but did not ask for them to be degrouped. It never occurred to me that they might be degrouped, hence I was a little ill-prepared this morning: I was expecting to deal with them in about six hours’ time. I am incredibly grateful to the noble Lord, Lord Stunell, for picking up the pieces of my confusion and making an outstanding contribution. The clerk has said I could make a few comments at this point—a very few—but I have barely recovered from the incredible response of the Committee to my confusion. Noble Lords have been courteous, amusing, gentle and kind, and I am enormously grateful, I really am.
Let me just explain why I tabled these amendments, despite the fact I feel passionately that Clauses 14 and 15 should not stand part of the Bill and be removed. I worked in Russia at the beginning of the 1990s; I watched President Yeltsin trying to create democracy in Russia and have watched it disappearing. We need to treasure our democracy and these clauses, in my view, will drive a wedge between democracy and a bit of reality in our political process. I completely agree that Clauses 14 and 15 should not stand part of the Bill, but I tabled these amendments to make the point that it is crucial that the Electoral Commission is free and independent to do what it believes is right and proper for it to do.
The suggestion was made from the Conservative Benches that, “Oh, no, it’s fine; these amendments are completely unnecessary because all the commission has to do is to ‘have regard to’ the will, the policy and the strategy of the Government.” But I have worked in these public bodies and am very aware of people asking, “Do we have to have regard to the Government or not?” This is vital, because if these clauses go through and these amendments do not pass, then the chair and the CEO of the Electoral Commission will be very anxious—believe me, having been there—to comply with the will, policy and strategy of the Government. That is the whole point: the commission must be independent, feel independent and act independently. These amendments are necessary unless the ideal situation emerges where the clauses are removed from the Bill. With all that said, I beg leave to withdraw the amendment.
Amendment A1 withdrawn.
1: Clause 14, page 21, line 13, at end insert—
“(3A) The statement must not include provision in relation to elections, referendums and other matters so far as the provision would relate to the Commission’s devolved Scottish functions or the Commission’s devolved Welsh functions.”Member’s explanatory statement
This amendment provides that a statement under the inserted section 4A of the Political Parties, Elections and Referendums Act 2000 (“PPERA”) must not include provision about matters so far as relating to the Electoral Commission’s devolved Scottish or Welsh functions.
My Lords, I apologise to the Committee at the outset for the large number of amendments in this group. They are technical amendments, in the main, and the overwhelming number of those I speak to—Amendments 1 and 2, 21 to 24, 26 to 30, 33 and 34, 36 to 38, 40, 43, 46 to 51, 106 to 108, 110 to 118, 124 to 133, 157 to 160, 162 to 167, 169, 173 and 174—are related to the discussions the United Kingdom Government have had with the devolved Administrations in preparing the policy and drafting the legislation. We undertook extensive engagement with them.
For a number of measures that are within devolved competence, the United Kingdom Government considered that a co-ordinated UK-wide approach would have been beneficial, ensuring consistency and operability for electoral administrators and those regulated by electoral law while strengthening protection for electors and relevant political actors. It is therefore regrettable that while the Government sought legislative consent for these measures, the Scottish Parliament has not granted such consent and the Welsh Government have recommended that the Senedd does not so. In respect to those positions, we have therefore tabled these necessary amendments to ensure that measures in the Bill apply to reserved matters only. In addition, an amendment has been tabled to the digital imprint provisions, which already apply UK wide, to ensure they will continue to function correctly once other parts of the Bill concerning devolved matters are amended.
We welcome the indication from the Scottish and Welsh Administrations, however, that they are considering legislating comparably in a number of areas covered by the Bill. The United Kingdom Government remain committed to working closely with the Scottish and Welsh Administrations to support consistency in electoral law and ensure clarity and coherence are achieved across the United Kingdom for voters, the electoral sector and those regulated by electoral law.
Additionally, this group contains technical amendments in my name that are necessary for the measures to be fit for purpose and operate as intended. I will give a brief description of each and the reasoning behind them.
Amendment 82 relates to voter identification and clarifies the information to be displayed on both the poll card and the large notice in polling stations. These will tell electors which forms of identification will be accepted. Amendments 74 to 77 and 123 to 133 are minor clarificatory drafting changes to Schedule 1 and Schedule 6 to reflect that Northern Ireland-registered voters and GB-registered proxies are not mutually exclusive categories, with a further change to make sure that dates of birth for GB-registered temporary proxies can be checked at Northern Ireland Assembly elections, in line with the intended policy. Amendments 157 to 160 are minor amendments to the European Union voting and candidacy rights provisions in Part 2, to remove an unnecessary reference to Northern Irish local councillors in the transitional provisions for officeholders.
In addition, Amendments 5, 6, 10, 11, 15 and 16 are government amendments relating to the Electoral Commission measures in Part 3. This partly answers the noble Baroness’s questions. I was going to answer them later but, since they have come up now, they relate to the change in the committee which is responsible and reflect the parliamentary consequences of the recent machinery of government change, where ministerial responsibility for elections was transferred from the Cabinet Office to the Department for Levelling Up, Housing and Communities.
As a result, the amendments replace PACAC as the statutory consultee on the strategy and policy statement with the Levelling Up, Housing and Communities Committee which will have responsibility henceforth for looking at electoral matters, in line with the machinery of government. This would also align the consultation requirements with the recent change to the membership of the Speaker’s Committee on the Electoral Commission, where the Levelling Up, Housing and Communities Committee chair has replaced the PACAC chair. The noble Baroness and the Committee will know that the chair of that committee is Mr Clive Betts, who is, I say with all sincerity, a very distinguished and experienced Member of the other place. The amendments are technical in nature, as is the move, and does not result in any other changes to the statutory consultation requirements and process.
Amendments 181 to 196, the final government amendments, are to the digital imprint provisions in Part 6. Once again, these are all technical in nature and aimed at ensuring that the provisions deliver the policy as intended. I urge noble Lords to support these technical and necessary amendments—I apologise if I have missed citing any in my speech—and I beg to move.
My Lords, on this occasion, I have a lot of sympathy with the Minister. As I understand it, these amendments have been tabled because of the consultation that has taken place since the original drafting of the Bill. I commend the Government for the process—I will come to substance of it—and I have sympathy with him.
However, in dealing with this, the Minister has the support of an excellent team—I see the Bill Committee officials here—whereas my noble friends on the opposition Front Bench have, in comparison, a very limited group of people helping them; they are limited in number—I had better make that clear—but able in every way. That makes it difficult to deal with such a complex Bill. However, I ask the Minister to think of the problems of Back-Bench Members, who have no help whatsoever. We have a huge volume of legislation to consider at the moment, not only this Bill, which is big enough in itself, but so many others, and this does create problems for us.
I would have liked to have spent more time discussing these amendments, particularly as they relate to Scotland and Wales. I was a great advocate of devolution in Scotland—and subsequently in Wales—and strongly supported giving more power to the Scottish Parliament. I served as a Member of the Scottish Parliament for four years, so I know the kind of work that is done there. Some of it was very effective, although it is less effective now under the SNP—much less effective than it used to be in the joint Labour-Liberal Democrat Administration. I wonder if all the differences that are now demanded by the current Administration in Edinburgh are genuinely sensible or just for the sake of being different in Scotland. I sometimes think that they just want to be different for the sake of it. I would like the Minister to reassure us that this is not the case in any of these amendments, because what difference is there?
In relation to voting at elections in Scotland and England, people move quite a lot from Scotland to England, so in one year they may vote in Edinburgh and the next year they may vote in London. Therefore, some degree of consistency has an advantage. The only difference that I know of at the moment is the voting age in Scotland, which is 16 for Scottish Parliament elections, but apart from that I think that the procedures are fairly similar. Can the Minister assure us that each of these amendments—as I say, I have not had the time, opportunity and support to be able to go through them one by one—is a genuine, excepted difference? Or has the Minister had his arm twisted and, wanting to keep the SNP Administration quiet, has he just agreed to do what they suggest?
My Lords, I wish to speak to those amendments in this group which deal with the consequences of the Welsh Government’s refusal to grant legislative consent to this Bill—primarily, Amendments 1 and 2, and others. The Welsh Government’s refusal results, of course, in the removal from the Bill of all aspects which relate to devolved elections. I am pleased to welcome these amendments, but I must say that the pleasure is tempered by the sympathy that I feel for my English colleagues, who will have to contend with some aspects of this Bill which they, and I, find very difficult to accept, and which go against the principles which govern free and fair elections in the UK.
At Second Reading, I spoke against the moves to neuter or control the Electoral Commission by the introduction of a strategy and policy statement, which your Lordships’ Committee has just dealt with. I also spoke of the deep disappointment felt in the Senedd at the way in which the UK Government was prepared to overlook or ignore the role of the Llywydd’s Committee, and its role in holding the Electoral Commission to account on behalf of the Senedd itself.
The refusal of the Welsh Government to give legislative consent to this Bill has resulted in Amendment 1, which excludes the Electoral Commission’s devolved Scottish and Welsh functions from inclusion in a statement, and Amendment 2, which defines the elections to which the functions relate, thereby securing the status quo for the commission in Wales. The refusal also has the effect that, in devolved Welsh elections, there will be no need for voter ID, no new constraints on postal or proxy voting and no extension of the overseas franchise.
Our Senedd will continue to be elected by the d’Hondt system—not a perfect system, I would agree, but it introduces a good element of PR and results in a balanced Senedd, where the seats allocated to political parties reflect the number of votes cast. Of course, in the devolved elections for the Senedd and for local government elections, our 16 year-olds will continue to be able to vote—not that this right, or our more proportional voting system, is under threat from the UK Government in this Bill, but I mention both merely to emphasise how much our systems have already diverged. Dealing with even more divergence will become the new normal, as voters and officials cope with different systems for devolved and reserved elections.
I thank the Minister for his letter to Members, in particular for the section dealing with the disapplication of the devolved provisions. I am grateful for his decision to respect the wishes of the devolved Administrations by the tabling of these amendments. I understand the Minister’s disappointment and his concerns about the exclusion of what he terms the “protective measures” in the Bill—modernising the offence of undue influence and the regulation of political finance, for example—but these are issues that can be determined by the Senedd, and it is the Senedd’s right to do so. The Senedd’s Counsel General has already indicated his desire to introduce an elections Bill in the Senedd and, as the Minister himself says in his letter,
“the Welsh Government has expressed support in principle for a number of areas in the Bill”.
The challenge for the Welsh Government will be to take noble Lords’ concerns on board in their new Bill, once they have undergone the due process of scrutiny and consultation.
Although I believe that the rights and responsibilities regarding devolved elections in Wales lie with the Welsh Government, I cannot resist the temptation to add a further challenge or gentle nudge—and that is for the Welsh Government and the whole Senedd to finally come to a decision about the size of the Senedd and an even more proportional system of voting for our Senedd. I know that this is already a work in progress, but we have been waiting in anticipation since the Richard commission reported in 2004.
My Lords, I have one question of clarification to ask my noble friend. During his introduction, he referred to the change of structure of government and therefore the change of structure of committees in the other place, and their responsibilities for dealing with electoral matters. Given that the Government have a habit of restructuring virtually everything virtually every year, whichever party is in power, can I seek clarification that these amendments are future-proofed—in other words, that we are not writing into the Bill the name of a committee that may not exist in one or two or three years’ time?
My Lords, I will briefly make a point about these proceedings. As I understood it, when we debated the amendments in the name of the noble Baroness, Lady Meacher, the Minister said, “We should not have these general arguments; we should be focusing on the specific amendments.” In a corner, as he was, I can see that that was the best sort of argument available to him. Now we have nearly 100 amendments which change the law of this nation, and how much time did the Minister devote to each of them? It was six seconds. This is not a detailed examination of a Bill; it is a Minister who thinks that whatever he happens to want—I am sure that most of these amendments are completely acceptable—should go through without proper debate, consideration and deliberation by this House.
I say that both as a protest and as something that I hope the House will carry forward in its future deliberations on the Bill. It cannot be done at the kind of speed whereby 100 amendments are considered in one grouping. It will not be done, and we will stop it being done.
My Lords, I will speak very briefly to this amendment. I seem to have used my time allocation earlier—I apologise to the Minister for wasting his time. However, as the noble Lord, Lord Lipsey, and my noble friend just pointed out—the Minister probably cannot hear me with my mask on, so I am sorry about that as well—it is six seconds per amendment against 13 per amendment on my part. I apologise for that.
I will pick up on a couple of things. The Minister expressed regret that Scotland and Wales had opted out of the application of Clause 14 in those two nations. He will understand that I think they have shown the utmost common sense in doing so, and I do not think it is a cause for regret at all. I certainly support what my noble friend Lady Humphreys had to say about that.
I will bring the Minister back to the fig leaf of consultation in new Section 4A in Clause 14. I said before that of the five bodies, four were completely hostile and one other was captured by the Cabinet. There is now a proposal here which means that one of those—PACAC—is captured by the Select Committee for the Department of Levelling Up Housing and Communities, and that Secretary of State will be making the strategy statement: that is something else that has got worse as a consequence of that.
I put back into play the point I made before, that if Scotland and Wales are not going to be part of new Section 4A and if PACAC is going to be neutered and transformed, it might be time to add the CSPL as one of those bodies which should be statutorily consulted as the creator and, up till now, the recommender of progress and developments on that Electoral Commission body. I would have thought that some voice for local government in that consultation should be statutory there, of course only for England, because Scotland and Wales have sensibly opted out.
We shall not oppose these amendments but we believe that the direction of travel on this suggests even more reasons for reforming the application of Clause 14 when we get to that debate.
My Lords, I thank the Minister for his introduction. Clearly, these amendments are technical and we agree with noble Lords that they are required.
I agree with my noble friends Lord Lipsey and Lord Foulkes that this enormous number of amendments was chucked at us in one go, with very little time to look at the detail, not just of what they say but of what the implications are. Noble Lords made an extremely important point about that. That has happened with other Bills as well. In debates on the Building Safety Bill, which I have also been working on, an enormous number—38 pages—of amendments were given to us with a very short time to assess them. Can the Minister take that away and think about it for future legislation? It is difficult for noble Lords to assess such amendments in a reasonable fashion.
We need to look at why the amendments are necessary. Clearly, as noble Lords have explained, it is to do with the devolved Administrations. When the Bill was originally proposed, it was for legislating on a UK-wide basis, and that included some areas where the devolved Parliaments in Scotland and Wales could legislate in respect of their own local and devolved elections. Clearly, the Government had to seek legislative consent Motions from the devolved Parliaments. Unfortunately for the UK Government, the Governments of Scotland and Wales both declined to lay consent Motions and requested that all aspects which relate to devolved matters be removed from the Bill, hence the large number of amendments.
I will just draw the attention of the Committee to the fact that, out of more than 350 legislative consent Motions, consent has been denied just 13 times, according to the Institute for Government. UK Bills have been redrafted previously when devolved Administration consent has been withheld under the Sewel convention. Can the Minister say why that option was not considered? Perhaps it was considered and we do not know about that, but it was rejected.
The Government have said that they were disappointed by the move—the Minister used the word “regrettable”—but said that they would respect this request by preparing the necessary amendments to the Bill, which is why we have so many before us in this group. I thank the Minister for apologising for this to the Committee—I appreciate that, as I am sure other noble Lords do.
I want to look at why the Welsh and Scottish Governments did not agree with the Bill. As the Government did not redraft it following the concerns raised but instead decided to plough on regardless, it is important to draw this to the attention of the Committee to fully understand the implications of many of its proposals.
In the Welsh Government, the Elections Bill was scrutinised by two Senedd committees: the Legislation, Justice and Constitution Committee, and the Local Government and Housing Committee. I commend the noble Baroness, Lady Humphreys, on her excellent speech about disappointment in Wales over the Government’s behaviour around the Bill, particularly because they completely refused to listen to the findings of the Llywydd’s Committee.
The Local Government and Housing Committee report agreed with the Welsh Government’s memorandum that consent should not be granted, saying:
“The majority of the Committee believe any proposals to legislate on these devolved matters should be brought forward by the Welsh Government and subject to full scrutiny by the Senedd.”
The Legislation, Justice and Constitution Committee also expressed concern at the lack of engagement between the UK Government and the Welsh Government. Can the Minister say why there was a lack of engagement —what went wrong with that process?
In addition, the committee agreed with the Welsh Government that some of the reserved measures would have a considerable impact on electoral administrators in Wales, particularly around voter ID. The same will happen in England. It highlighted the potential for voter and candidate confusion and complexity for electoral administrators if devolved elections happen close together or on the same day as a reserved election, as happened in May 2021. This could lead to a situation where postal and proxy voting rules were different and voter ID requirements in polling stations were different for polls happening together. My noble friend Lord Foulkes talked about the importance of consistency. Diversion will only cause confusion.
On voter ID, the committee also cited Electoral Reform Society Cymru concerns about poll clerks becoming
“bouncers at the ballot box”
and being required to turn away
“potentially thousands of would-be voters each election.”
Concerns have also been raised by Jess Blair, director of the Electoral Reform Society Cymru, who said that the Elections Bill makes
“sweeping changes to our democracy.”
She said that
“it looks like UK ministers have barely engaged with Wales or Scotland so far. This bill is being swiftly rammed through with little consultation”.
That echoes the concerns expressed already in your Lordships’ House. She continued:
“Moreover, the changes to the Electoral Commission represent a UK government power grab, with ministers given new controls over our elections watchdog. This is a dangerous and unprecedented move that the Welsh Government is right to oppose. This Elections Bill could lead to a ‘two tier franchise’ in Wales, with some elections banning those without ID, and others remaining open and free. Both the Welsh Parliament and Holyrood should use their powers to pause this power-grab bill, and secure changes to protect the right to vote.”
So they have done.
The Scottish Government also recommended that the Scottish Parliament should not give consent to the Bill and would not lodge a legislative consent Motion. The lead committee of the Scottish Parliament tasked with scrutinising the Bill was the Standards, Procedures and Public Appointments Committee. The majority of that committee agreed with the Scottish Government that consent should not be granted.
The committee also noted that the Elections Bill requires Scottish Ministers to be consulted on a draft of the strategy and policy statement for the Electoral Commission. The Scottish Elections (Reform) Act 2020 transferred financial responsibility for funding the Electoral Commission in relation to Scottish elections from Scottish Ministers to the Scottish Parliamentary Corporate Body. The committee considered that the SPCB should be added as a statutory consultee to the statement. Can the Minister confirm whether that will be the case?
On voter ID, the committee noted that changes to reserved elections in the Bill had a potential impact on Scottish elections. It raised concerns about the administrative burdens placed on elections staff by the various new measures; in particular, the administration of voter ID in polling stations and registration staff determining applications for overseas voters and absent voting requests. These concerns for England remain within the Bill, and we will come to them as we move through Committee.
The committee in Scotland heard evidence from the Electoral Management Board for Scotland that voter ID requirements are
“out of proportion to the problem they attempt to address”.
The EMB voiced concern over the effect on polling station staff of having to implement voter ID provisions, saying that polling staff would no longer be able to help citizens in elections, but, instead, officials would be checking voters’ identity papers. It is concerned that it will be a less attractive job given the likely associated conflict and bureaucracy.
On the digital imprint measures in the Bill, the Scottish Government and the UK Government disagreed on whether or not the measures are fully reserved. The UK Government believe that the measures are wholly reserved under the “internet services” reservation in the Scotland Act 1998, but the Scottish Government disagree. Their view is that only the measures requiring removal of electronic material that would breach the new measures are reserved. They view the rest of the measures on digital imprints as devolved and consider that the provisions in the Elections Bill would override measures already in place.
The Scottish Government do not recommend legislative consent in this area. Their initial position is that the existing Scottish regime should remain in place, with any necessary adjustments made to accommodate the reserved aspects of the Bill in relation to the “takedown” of material on the internet. I note that the Minister talked about amendments in the area of digital reform. As I have said, we have not had time to go through the detail of all the amendments. I would be grateful if he could comment on what exactly the amendments and the Bill still mean for Scottish powers in this area.
I want to look briefly at some specific government amendments. Those relating to Clause 14 would remove matters relating to the Electoral Commission’s devolved Scottish or Welsh functions from the scope of the proposed strategy and policy statement. They would remove the requirement for the Secretary of State to consult Scottish and Welsh Ministers on a draft statement. In addition to the UK Parliament, the commission is accountable to and funded by the Scottish Parliament and the Senedd. While devolved matters may be removed from the strategy and policy statement, it remains likely to affect how the commission delivers some devolved functions; for example, in terms of resourcing. It will also affect the commission’s core functions, which benefit voters, parties, campaigners and electoral administrators in Wales and Scotland. Does the Minister agree that it therefore remains important that, if the proposed strategy and policy document is brought into law, the processes for development, consultation and approval should reflect those shared accountability relationships with the Scottish Parliament and the Senedd?
Amendments to Clauses 18 to 27 would ensure that provisions in Part 4 of the Bill did not apply to devolved elections in Scotland and Wales. The Government should set out clearly how the amended clauses on notional expenditure and third-party campaigning will apply when there is a combined regulated period covering both reserved and devolved elections.
I return to the Minister’s comments on PACAC being removed as a consultee. This is a backward step in transparency, and it is of concern.
To sum up, the Government have had to table all these amendments relating to the devolved Administrations because they would not give consent. The reasons for withholding consent are due to concerns that should deeply worry us all; in particular, that the Bill risks disenfranchising voters and threatens the independence of the Electoral Commission. It is a great shame that the UK Government did not heed the concerns of the devolved Administrations and go back to the drawing board.
My Lords, I thank all those who have spoken in the debate. Perhaps I am allowed occasionally to speak as an individual from the Dispatch Box as well as a Minister, and I have not changed a view that I held as Back-Bencher, which is that the minimum number of amendments is desirable and that all Governments should seek to get Bills into the best possible condition before they come before your Lordships’ House. That is desirable, and I made an apology at the outset.
As the noble Baroness, Lady Humphreys, and others pointed out, a significant number of the amendments arise from our decision to respect the recommendations of the Senedd and the decision of the Scottish Government. We believe that some of the issues concerned are important and that we should proceed to legislate, but, as I said in my opening remarks, we intend to continue discussions with the Scottish and Welsh Governments and would be interested to see how they proceed. We have welcomed the indication that they are considering legislating comparably in a number of areas covered.
The noble Lord, Lord Foulkes, asked whether there were areas where we were deferring to the Scottish nationalists. I would not put it that way. Some of the areas were where there was a disagreement. Your Lordships have already indicated that you might also disagree with Her Majesty’s Government—let us say, on the elements relating to the proposed strategy and policy document, and that is one area covered by these amendments, as the noble Baroness opposite said.
However, one consequence of the withholding of the consent Motion will be that the modernised undue influence offence will apply only to reserved and excepted elections. The Government’s view is that a UK-wide application of the measure would have delivered greater levels of integrity by upholding what we submit in this Bill should be a basic principle: that those guilty of an intimidation offence should not be allowed to stand at any election in the United Kingdom. That is why we sought legislative consent from the Scottish Parliament on those measures. Following these amendments, which we have introduced for the reasons that I have given, and if your Lordships give assent to the legislation, offenders will still face a five-year ban from standing for all elected offices in the UK save for the Scottish Parliament or Scottish local government. In respect of devolution, it will be for the Scottish Government to make the necessary changes themselves to disqualify individuals who are disqualified for such offences in other parts of the UK. Other areas of undue influence, sanctions against intimidation, measures on notional expenditure—referred to by the noble Baroness—and third-party campaigning will apply only to reserved and combined regulated electoral periods.
There will be divergence, and in some cases there is already divergence. There is already some minor divergence, for example, between the current version of the undue influence offence in the 1983 Act and the situation in Scotland. That has not so far caused any confusion, and we do not expect this to be any different. We would expect ambiguities to be straightforward for the courts to resolve.
Obviously, we will continue to watch events. I am not anticipating that the Scottish Government would not wish to legislate in this area, or indeed, as the noble Baroness said, that the Welsh Senedd might not. But we are submitting to Parliament the idea that Parliament should act in respect of things such as undue influence, intimidation and the measures on notional expenditure. We have taken the judgment to proceed—showing respect to the devolved Administrations not by waiting, but by excising and allowing them to make their own decisions and proposals.
The noble Baroness, Lady Hayman, asked me a specific question on a specific matter, which I undertake to write to her about, and to place the letter in the House in the normal way. My noble friend Lord Hayward asked about the designation of the new committee. This is in the legislation, because the effect of one of the amendments before the House is to remove PACAC and put in the other House of Commons committee. Ultimately, if this Bill is not thrown out—as was impishly suggested at the start of our proceedings—it will go back to the other place for it to determine. I shall give way to my noble friend Lord Hayward in a moment.
It surely is the case that if a government department is responsible for an important subject such as elections, the scrutiny should be conducted by the committee of the other place that is responsible for scrutinising that department. As I said, that will be the committee that is being substituted, under the chairmanship of Mr Betts. I give way to my noble friend.
I am sorry if I did not make this clear, but I was asking a question about the future structure of committees, beyond the next change. I think I used the term future-proofing, as it takes into consideration Governments’ habit of changing structures. Is there a part of the Bill that will future-proof structural change, so that when we move on from one select committee having responsibility for overviewing elections matters to another committee having that responsibility, it will not require a change to primary legislation?
My Lords, I have not had advice from the Box on this, and that is always a dangerous place for a Minister to be. However, I try to read carefully what I put before your Lordships’ House, and I think it is provided in proposed new section 4C(8) that,
“If the functions of the Public Administration and Constitutional Affairs Committee at the passing of this Act with respect to electoral matters … become functions of a different committee of the House of Commons, the reference … to that Committee is to be read as a reference to the committee which for the time being has those functions”.
Maybe I am parsing that wrongly. If I am, I will apologise to my noble friend and to the Committee and come back with a better explanation—but sometimes a Minister just has to try his best at the Dispatch Box. Does the noble Lord, Lord Lipsey, want to intervene?
My Lords, I am sorry to come back to something the Minister said just before the intervention of the noble Lord, Lord Hayward, but I think the record will show that the Minister said that, when we have passed such amendments as we do, we send them back to the other place for it to determine. I do not think that is the procedure. I thought they came back here, and then we decided whether we accepted them or not. Will the Minister please set the record straight on the procedure?
I think I did set the record straight on the procedure. According to the principle of amity—I have great amity and respect for the noble Lord—I was not going to pick up the fact that he took me to task for saying that someone had spoken for a long time. I did not say that; I said it was an interesting coincidence that a prepared speech was ready at very short notice. I did say to the Committee—I reiterate this, and the noble Lord can give me a few strictures if he sees my departing back—that I would sit through every hour that your Lordships require of me on this Bill.
As for the procedural point that the noble Lord asked me about, if a change is made in this House, it is an amendment to the legislation. If it goes in, it will be a Lords amendment to a Bill that has been sent up here, so it will go back to the other place as a House of Lords amendment. If the other place does not like it, theoretically it can reject it, as it can reject any of your Lordships’ amendments. That is the procedural position, and that is what I meant when I said that the other place would be able to determine matters. The noble Lord shakes his head; perhaps he will tell me what he disagrees with.
May I take up the point that the noble Lord, Lord Lipsey, raised earlier? We are now about to agree—or otherwise—more than 100 amendments, after 42 minutes’ debate. Those amendments are vital in Scotland and Wales, as well as in England, and will determine the future of a whole range of aspects of the electoral structure. This is not giving the matter proper consideration. Perhaps in an unguarded moment, the Minister said that he was prepared to spend all the hours necessary to consider such matters, and we need to consider this in more detail on Report. How can we do that, and look at all the aspects relating to elections in Scotland and Wales as well as in England, without just passing them through in well under an hour?
My Lords, the groupings put before your Lordships’ House are agreed through the usual channels. I can only serve the House in the way that has been agreed through those channels. As for the concern expressed by the noble Lord, Lord Lipsey, I have nothing to add to my explanation. If the substitution of PACAC with the new appropriate House of Commons committee is agreed by your Lordships’ House, it will become a Lords amendment to the Bill, and will go back to the House of Commons and be considered by it appropriately. I have nothing further to add.
Amendment 1 agreed.
2: Clause 14, page 21, line 15, at end insert—
“(5) For the purposes of subsection (3A)—(a) the Commission’s “devolved Scottish functions” are the Commission’s functions in relation to—(i) Scottish Parliamentary general elections, elections held under section 9 of the Scotland Act 1998 (constituency vacancies), and local government elections in Scotland, so far as those functions do not relate to reserved matters within the meaning of the Scotland Act 1998, and(ii) referendums held throughout Scotland in pursuance of provision made by or under an Act of the Scottish Parliament;(b) the Commission’s “devolved Welsh functions” are the Commission’s functions in relation to—(i) general elections of members of Senedd Cymru,(ii) elections held under section 10 of the Government of Wales Act 2006 (elections for Senedd constituency vacancies),(iii) local government elections in Wales, and(iv) referendums held under Part 2 of the Local Government Act 2000 or Part 4 of the Local Government (Wales) Measure 2011 (referendums relating to local authority executive arrangements),so far as those functions do not relate to reserved matters within the meaning of the Government of Wales Act 2006.” Member’s explanatory statement
This amendment defines what is meant by the Commission’s “devolved Scottish functions” and “devolved Welsh functions” for the purposes of the new subsection (3A) added to the inserted section 4A of PPERA.
Amendment 2 agreed.
House resumed. Committee to begin again not before 2.45 pm.