Elections Bill

Lord Khan of Burnley Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 10th March 2022 Lords Chamber

[Lord Khan of Burnley (Lab)]

My Lords, I welcome the noble Lord’s intent to oppose Clause 17 standing part of the Bill and to probe the new restrictions on the Electoral Commission which, in effect, will prevent it instituting criminal proceedings. This represents a significant change in the role of the commission which, until now and since its establishment, has held the power to bring prosecutions against those who break electoral law.

This will no doubt mean that greater responsibilities are left to the police and the Crown Prosecution Service to enforce electoral law. On this, can the Minister confirm whether additional resources, support and training will be provided for this purpose? The transfer of functions away from the commission will also reduce its overall responsibilities and could mean that the positions of some of its workforce are made redundant. Does the Minister expect that any jobs will be lost as a result of these clauses?

Overall, I am concerned that these measures could be short-sighted and form part of a broader attack on the capabilities of the independent Electoral Commission. At a time when democracy is under threat elsewhere in the world, the UK should stand as a beacon for our values and oversight is crucial to that. If the Government can justify this transfer of functions away from the Electoral Commission for the purpose of effectiveness, they will have our support, but given that other clauses in this Bill undermine the independence of the commission, I am sure the Minister will understand our caution over these provisions.

Let us look at the evidence. The Electoral Commission considers that its

“current powers to establish a prosecution function are consistent with those available to many other regulators”

and that the proposed measure would

“reduce the scope for political finance offences to be prosecuted, relying solely on the police and prosecutors having the resources and will to take action.”

It notes that the current low levels of prosecution for a PPERA offence, referencing one in the past 20 years, have “important implications for deterrence.”

Assistant Chief Constable Pete O’Doherty from Thames Valley Police noted:

“the current state of legislation has created a two-tier system with parties and non-parties being investigated and regulated by the commission with civil penalties imposed, while of course candidates and individuals by the police, who will end up with much more severe sentences and even criminal records. Also the relationship between the police and the commission is very strong, and having organisations that apply two very different pieces of legislation is not ideal. For example, it can cause issues in deciding what should be classed as party and what should be classed as candidate expenses, to give you an example.”

The Government note that the CSPL’s recent report on electoral finance regulation did not recommend that the Electoral Commission should be able to develop the capacity to bring prosecutions. They stress that they are

“committed instead to supporting the police as necessary to enforce electoral regulation proactively and effectively and as stated in the Government’s response to the Committee on Standards in Public Life’s report, the local nature of offences under the Representation of the People Act 1983 means that it is sensible for investigations to lie with local forces police, rather than being run on a national scale. The Government will consider further the Committee’s findings and recommendations, including on enforcement of electoral law.”

Finally, I turn to the PACAC recommendations:

“The Government has not clarified whether more resources and training will be provided to the police and Crown Prosecution Service (CPS) and Public Prosecution Service in Northern Ireland (PPS) to investigate alleged criminal offences under PPERA.


… The Government should set out how it will ‘support the police as necessary to enforce electoral regulation proactively and effectively’, as committed by the Government in its letter to the Committee of 7 October 2021, including what resources it will make available to the police to investigate and bring forward criminal prosecutions under PPERA.


… We urge the Government to commit to review, monitor and report on potential criminal breaches under PPERA and their enforcement, which would assist in bringing forward any further legislative changes to either the civil and/or criminal sanctioning regimes. The Government should publish its findings and lay a statement in Parliament every year.


… The Government should also commit to undertaking a review of the civil sanctioning regime for electoral law offences and its interplay with criminal prosecutions under PPERA and the RPA, providing a timetable for consultation and review of the CSPL’s recommendations in this regard.”


On the Government’s response to the PACAC recommendations, we do not think that the Government have not done enough to address the committee’s concerns.

I finish by echoing the words of the noble Lord, Lord Stunell, that, as it currently stands, this is wing-clipping of the Electoral Commission. It is silencing and reducing its power—a theme that we have seen continuously through different groups of amendments in Committee. I look forward to hearing the Minister’s response.

--- Later in debate ---

[Lord Stunell (LD)]

My Lords, I rise to support my noble friend and Amendment 18 and to thank the noble Lord, Lord Young, who, once again, trumps everybody by having been the Minister, which is a bit of a theme in the debates he has contributed to that I have heard. He is all the more welcome for that, and I hope that in due course his DNA may reappear on the ministerial file so he can complete the job.

I think the case has been made very clear. In fact, the noble Baroness from the Green Party, whose name has just evaporated—the noble Baroness, Lady Jones, I do beg her pardon—made the clear comparison between the fine a party might get from screwing up on its data protection and the fine it might get from screwing up on its election expenses. I think any ordinary member of the public, and indeed any rational Member of this House, would think that if one offence were worse than the other, the election offence is surely the more serious. I hope we shall hear that, subsequent to the new Minister picking up the file, he has been able to talk to the relevant officials who decide these things on his behalf and will be able to give us some idea that the Government will produce their own amendment on Report, or perhaps will assist the noble Lord, Lord Young, in tweaking his, so that it is at an acceptable level for his officials to approve.

I want to make the case that we and my noble friend Lord Rennard set out very clearly to make this proportionate to the fines and the impact that other regulators can have on the behaviour of the organisations they regulate. This may not be entirely in the best interests of those of us in this room, because it could be our political parties that end up paying significant amounts of money. That, of course, is the trouble, because whether the turkeys will vote for Christmas is always a difficult question to answer. Actually, it is an easy question to answer, but how do you overcome the natural reluctance there is to impose on ourselves the burdens that we willingly impose on other people when they offend regulatory standards?

I hope to hear something from the Minister. If he cannot come in at £500,000, could he at least, for goodness’ sake, come in at £50,000 and give those of us here who think this system urgently needs uprating some glimmer of hope that progress is being made?

[Lord Khan of Burnley (Lab)]

My Lords, I first say how much I am enjoying hearing the noble Lord, Lord Young of Cookham, expressing his views in an unconstrained manner. I am also glad that he still has his DNA all over this folder, which means there are some valuable contributions.

The amendments in this group, which would have the effect of increasing the fines the Electoral Commission can apply, raise the question of how the commission can effectively deter non-compliance. This is an especially pertinent question given that the Bill removes its power to institute criminal proceedings.

In the past year alone, the commission has investigated close to 40 different parties, individuals and campaigners. Many of these investigations have led to fines. These include penalties totalling almost £18,000 to the Conservative Party for failing to deliver accurate quarterly donation reports and failing to keep accurate accounting records. In the most recent recording period, however, there seems to be no instance of the commission imposing the maximum fine. Can the Minister confirm how many instances there have been of the full £20,000 fine being applied?

The amendment of the noble Lord, Lord Wallace, raises the possibility that the fine could equal a percentage of the total spend of the organisation—a point that the noble Lord, Lord Rennard, and the noble Baroness, Lady Jones of Moulsecoomb, have raised in relation to bringing it in line with the fairness of other organisations, such as GDPR and the Information Commissioner’s Office. This is significant in relation to raising the possibility of the equal percentage of the total spend of the organisation, because a number of smaller parties have received fines that are as large as the main parties’ fines. I look forward to hearing the Minister address the concerns raised by noble Lords in this group in particular.