Elections Bill

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Lords Hansard - Part 2 & Committee stage
Thursday 17th March 2022

(2 years, 4 months ago)

Lords Chamber
Elections Act 2022 View all Elections Act 2022 Debates Read Hansard Text Amendment Paper: HL Bill 96-IV Fourth marshalled list for Committee - (17 Mar 2022)
The problem that has emerged, which this clause does not tackle, is how targeted spending by one or other or more of those bodies should be accounted for in local and national campaigning. In national campaigning it is an irrelevant consideration, but in local campaigning it is highly relevant and surely it must be the case that ordinary folk ought to be able to contribute to those campaigns and that the candidates and agents of those campaigns ought to have a duty to say how much help they received. Some of the regulations we have at the moment succeed in doing that, but there was a specific gap, which was appreciated and notified by the Committee on Standards in Public Life in recommendation 21. I very much hope, not with a tremendous amount of expectation, that the Minister may be able to adapt his pro-forma wind-up speech to take some account of the concerns that have been raised in the debate so far.
Lord True Portrait Lord True (Con)
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My Lords, I am grateful to all noble Lords who have spoken. I venture to say that I am unable to alter every word of what I might be advised to say, but I repeat what I said this morning when we had the first group on Clause 25. I hope that those who were present this morning will understand what I said in earnest when I responded to that. I listen to what is said in your Lordships’ House. Sometimes it is not the wisest thing to give a full response on the hoof but to give a commitment to further consideration and discussion with noble Lords in all parts of the House, which I undertake to do.

I will respond in general terms on this clause and will follow up in writing specific points that have been made in the debate. I am advised that it is unlikely that clubs will be affected, but this is why I think it is not wise to give a response on the hoof. I think we need a collective understanding of where it might go and, ultimately, it is for the Electoral Commission to give guidance and advice on these matters.

I enjoyed that part of the debate where the Government’s position was likened to that of Mr Tony Blair. I am not sure whether that was meant as a compliment or otherwise, but I hope that we can move forward in a spirit of understanding. One of those understanding points is that spending limits are an integral part of the political finance framework— I think we all agree on that—and that they ensure a level of fairness between parties and campaigners. The issue that some noble Lords have put is that they do not believe that the clause before the Committee meets those criteria, and I will reflect on what has been said.

Clause 27, which the amendment is designed to take out, is designed to prevent unfair circumvention of spending limits. It is fundamentally unfair that the current rules allow for a party potentially to use another group’s spending limit or resources in order to increase its own spending power. Under the existing legislation, campaigners could game the system by establishing distinct groups that together, working with a political party, have an enhanced spending capacity via multiple limits. Indeed, the noble Lord opposite acknowledged that in his speech. It is right that, where groups work together on a campaign, the spending should be accounted for by anyone involved in that campaign, otherwise spending limits are meaningless, and I think that, again, that is broadly common ground.

The effect of the Bill—noble Lords have questioned this—is to extend the principle of joint campaigning, which applies where third-party campaigners are working together, to cover scenarios where political parties and third-party campaigners are actively working together on a campaign. This is not altering the definition of joint campaigning as it is commonly understood; the measures only apply to qualifying election expenditure, not wider, non-electoral campaigning that groups may undertake. I will come specifically to the point on affiliated trade unions later. Political parties and third-party campaigners will be aware if they are working together on a campaign that involves spending money on regulated election expenditure.

The proposition that the Government are putting forward will simply mean that, where a political party and third-party campaigner are incurring spending together, actively campaigning together, the relative spending for that joint campaign should be accounted for by all groups involved in the spending. This will help to ensure that all campaigners are playing by the rules and make it easier for the public to know who is involved in such campaigns.

The measures are intended to strengthen the principle of spending limits already in law that protect the level playing field by ensuring that political parties cannot use campaign groups to enable them to expand their spending limit potential—what could be seen as a political party outsourcing its regulated spending to a third party. As we discussed in relation to Clause 22 —and the noble Lord, Lord Wallace, has done some research on the matter—during the 2019 general election, the group Advance Together registered as a political party and a third-party campaign group and proceeded to run negative attack campaigns in five constituencies. What can be done in five places can be done in others.

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
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Just on that point—before the Lib Dems jump up in shock and horror—in that case the one organisation registered both as a political party and as a third party. Those are not the circumstances of separate organisations coming together. That particular problem could have been identified by the Electoral Commission and could be subject to provisions to stop a single entity trying to expand its spending limits by becoming more than one type of organisation. This is not what we are talking about in Clause 27.

Lord True Portrait Lord True (Con)
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My Lords, I was coming on to say that. While Clause 22 will ban the same organisation from appearing on both registers at the same time, the effect, as noble Lords have said, of existing joint campaigning rules and this proposed extension is to reinforce that by stopping other ways that spending limits could be avoided and so it maintains the level playing field.

Of course, that will not affect groups spending on campaigns, even on the same issues or with the same objective, separately outside a joint plan, in their capacity as an individual recognised third party or political party. Any regulated spending undertaken by an individual group not as part of a joint campaign will only need to be reported by the group incurring the spend. No political party or third-party campaigner should be allowed to use the facade of multiple groups working together to expand its spending limits on campaigns where the various groups are for all intents and purposes operating as a single group.

The noble Lord has proposed an alternative approach, which, as the noble Lord, Lord Stunell, rightly said, refers to the CPSL recommendations. By the way, the CPSL recommendations came out after the Elections Bill was introduced. When I refer to some of the things we were doing in the spirit of CPSL, it is in that context. But I did make very clear that we took that committee seriously. The noble Lord’s amendments would require the Secretary of State to introduce regulations for the purpose of requiring political parties to distinguish targeted spending from other expenditure in their spending returns.

I appreciate that the noble Lord’s intention, and that of CPSL, is to increase transparency on this important topic. However, this replacement does not match the extent of transparency that Clause 27 creates. There, we get into a point of difference. Targeted spending is more limited in its definition than joint campaigning. It focuses only on the promotion of a single political party and its candidates exclusively, not campaigning in relation to policies or issues that may relate to the electoral prospects of a number of political parties. Furthermore, targeted spending also does not cover negative campaigning intended to, for example, reduce support for other candidates or parties. I know that Members of the other place are particularly concerned by this issue, and it is right that such activity, which is highly prevalent in modern campaigning, is transparent.

Targeted spending therefore does not include all scenarios where third parties and political parties might actively work together. That is not to dismiss the importance of the amendments that the noble Lord has put forward. But focusing only on targeted spending and failing to tighten the rules on joint campaigning, as the noble Lord suggests, would not, in our submission, deliver full transparency for the public and might allow campaigners for parties to—

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
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May I ask a question? The Minister refers to concern down the other end. I also wish to express concern about some of the negative campaigning that can occur in general elections, and I am keen to hear from the Government how they intend to deal with that. The fact is that this clause requires there to be a common joint effort, formally recognised, between a party and another organisation. The fact is that most negative campaigning that takes place does not fall into that category, so this clause can have an impact only on those organisations that have a formal relationship—in other words, the Labour Party.

Lord True Portrait Lord True (Con)
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I accept the point made by the noble Lord about the wider ambit of negative campaigning, and I hope that is where we will find—whenever we finally get there—a measure of agreement across the House, in the context of, for example, digital campaigning. I agree with the noble Lord and the Committee on Standards in Public Life that third-party campaigning should be transparent, and campaigners should participate on equal terms and be accountable. These principles are already represented in current law.

I have heard what so many noble Lords, and people who have a proud record of commitment to the trade union movement, have said in this debate, and, as the noble Lord, Lord Collins, was kind enough to say at the outset, my officials have met with the TUC and the Trade Union and Labour Party Liaison Organisation, and we remain open to continuing those discussions. I have met with the noble Lord and his colleagues, and I am ready to do so again. We have listened closely, and I have listened again today to their concerns that Clause 27 will unduly limit the close relationship between the Labour Party and some trade unions. Much of the expressed concern has centred around the definition of “joint campaigning” and whether it would capture, for example, trade unions agreeing policy or manifesto commitments as part of the Labour Party’s governance structure. Clause 27 does not alter the definition of joint campaigning as it is commonly understood, and the Electoral Commission already provides guidance on what is and is not likely to constitute joint campaigning under the current rules, and we would expect them to update their guidance were new rules to come forward in the Elections Bill to reflect the extended circumstances. We will come onto statutory guidance later.

The Elections Bill also does not change the definition of “controlled expenditure”, meaning that only spending which may be reasonably regarded as intended to promote or procure electoral success in the lead-up to an election is regulated, whether that is undertaken by a political party or a third-party campaigner. In practice, such activity as formulating policy for inclusion in a manifesto is unlikely to meet the Electoral Commission’s “purpose” or “public” tests, which will remain used to determine whether spending is regulated. It also would not include campaigning or advocacy on issues such as poverty or climate change that are not linked to the electoral success of parties or candidates.

Finally, I want to be clear that under the current rules or under the rules proposed in the Elections Bill, a party being affiliated or having a formal relationship with another campaigner does not in itself automatically constitute joint campaigning. Being an affiliated trade union does not mean that all activity of any other member of the affiliation would immediately count as joint campaigning, unless that activity met the Commission’s existing tests for joint campaigning. Affiliated groups running related or complementary election campaigns would not necessarily constitute joint campaigning, as the campaigns may be being run independently of each other. Only if the campaigns were being conducted in pursuance of a common campaign plan would both groups need to account for the spending.

I hope my response has gone some way towards at least assuring noble Lords that the Government are listening and have listened to the debate on this subject. I hear the concerns that have been expressed, but this clause is not intended to target trade unions. I have heard the submissions made about unintended consequences, but, as I fulfil my duty to sit here, listen to and respond with great respect to your Lordships—

Lord Lea of Crondall Portrait Lord Lea of Crondall (Non-Afl)
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Before the noble Lord sits down, would he reflect on the fact that the last two hours have been about something to do with legislation affecting the Labour Party in particular? It would be intriguing to find a similar amount of time in a Bill looking at the Conservative Party in very similar terms.

Lord Scriven Portrait Lord Scriven (LD)
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Before the Minister answers that, could I gently remind Members that it is within the Companion and courteous not to intervene in debate when they were not here and did not come in until 10 minutes after the debate started?

Lord True Portrait Lord True (Con)
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My Lords, I will not follow that. The House is master of its own procedures, but it is up to those who wish to intervene to do so when they wish to give advice to other Members.

What I would say with respect to the noble Lord, and indeed to all those who have spoken—whether they were here at the start or were not—is that I understand that noble Lords on the other side are here because they have a specific concern. The concern or perception that I have heard expressed is that they believe they may be unduly affected. Having heard what has been said, I will endeavour to provide further reassurances and to explore the matter further. If noble Lords opposite and in other parts of the House are ready to do so, I am determined to continue the discussion on these topics beyond today—and indeed imminently, as we move over the next few days.

Lord Harris of Haringey Portrait Lord Harris of Haringey (Lab)
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Could I just clarify what the Minister has said? First, I am not sure that he has yet satisfied the House—he certainly has not satisfied me—on whether the issue being addressed by this is a hypothetical future situation or whether the Government have examples of where this problem has arisen.

Secondly, he talks about further discussion and consultation. I know that that is the sort of process that the Minister would wish to follow, but I was slightly surprised to receive an email from an organisation that is not by any means political but is taking an interest in the implications of the Bill, to tell me that its information—I am not part of the usual channels—is that Report on this Bill is going to start two weeks today. If that is the case, when are all these discussions going to take place?

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Lord True Portrait Lord True (Con)
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My Lords, the noble Lord is a very experienced Member of the House and he knows that a Minister at the Dispatch Box is not in the usual channels. The duty of the Minister at the Dispatch Box is to be here and respond to the House, as I have explained, whenever and at whatever hour. I gave an undertaking at the start of Committee that I would sit here for every minute of every hour of every day of this Bill’s Committee, Report and Third Reading—whatever the procedures are in respect of the House—and I will do so. I do not think that I want to proceed on that issue.

I have sought to explain the rationale behind this clause, and I have heard the concerns expressed. As far as discussions are concerned, I am sure that the noble Lord can liaise with his own Front Bench and representatives, but—as I think the noble Lord, Lord Collins of Highbury, would accept—my door is open, has been open and will be open on this matter.

So that is the position. I repeat that the clause is not intended to target trade unions. However, I understand the perceptions and practical concerns that have been expressed. In light of that, I hope that the noble Lord will accept that the clause should stand part, at least at this point. I undertake to read very carefully what has been reported in Hansard to reflect on the debate, and I hope to have further engagement on this matter. In that light, I hope the noble Lord will withdraw his amendment.

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
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One of the problems that we have had, and I raised this at Second Reading, is the failure to properly consult. The Trades Union Congress and TULO, the organisation of Labour-affiliated trade unions, were not consulted in the first round, unlike other charities and third-sector organisations. It was only after being pushed by me, in a meeting that the Minister organised, that meetings took place, rather late in the day.

The clause has serious consequences. The Minister talks about the definition of joint campaigning being well-established, but where is it in law? Where can we actually ensure that it will not change and then be captured? That is the problem that the clause has, and I suspect he has been unable to reassure anyone in this Chamber about what it may end up doing. We will have to return to it strongly, and I expect that before Report the Minister will not just meet me but will have proper consultations with the TUC and TULO because it is important that these organisations are properly consulted on something that will have such a huge impact.

Lord True Portrait Lord True (Con)
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My Lords, I gave that undertaking in my speech. I accept the reproof but I say to the noble Lord that we have started those contacts—I was not personally involved because I had other engagements at the time but I am responsible for the Bill in this House, though not for its progress up to this point—and, as far as I am concerned, we will continue to do so.

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
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But timing is of the essence, and we are being pushed. There is a reason why this House’s scrutiny of the Bill is so important. How long did the other place take to scrutinise this clause? No time at all; in the two hours allocated to the Bill, this clause was not included. We can see from Hansard that they had no debate on these clauses, but it is a fundamental issue that affects our democracy. I know the Minister is concerned about the time we may take over these issues, but I assure him that I will stay up all night and all day until we get proper consideration of these issues. It is not right that this measure is pushed through without proper consultation and consideration. In the meantime, I will not push my Motion to a vote.

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Lord True Portrait Lord True (Con)
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My Lords, it has been an interesting short debate. I would be working against the Government’s interests if I was tempted into a philosophical discussion about tertiary law and clarity and certainty. I am quite happy to have that discussion outside the Chamber. However, there are important points raised here. Also, the amendment tabled by the noble Lord, Lord Kerslake, as he acknowledged, rather logically fell into our previous debate. I have undertaken to reflect on the debate on Clause 27, and I will add the remarks from the noble Baroness and the noble Lord, Lord Kerslake, into that. There are existing rules on targeted spending for third-party campaigners—placing a cap on the spending—directed at one political party unless the party authorises further spending, in which case it must already report on that.

With due respect to the noble Lord, Lord Kerslake, I will focus on the very interesting interventions—not that his was not, but on the even more interesting interventions—of my noble friend Lord Hodgson of Astley Abbotts and the noble Lord, Lord Blunkett, in the back corner there, whom I thank for his barbed kind words. I hope that the barbs will not be needed as our reflections go forward.

My noble friend Lord Hodgson, as I think is acknowledged on all sides of this House, has considerable expertise in this area. Someone used the phrase that he “speaks for pluralities”. His Amendment 54A would remove a permissive power on the Electoral Commission to prepare a code of practice on the expenditure controls for third-party campaigners and replace that with a requirement on the commission to produce a code of conduct. It then further specifies the contents of such a code.

Even in this short debate I heard noble Lords, including the noble Lords, Lord Mann and Lord Blunkett, using the words “clarity” and “certainty”. While the Electoral Commission has a statutory duty to ensure compliance by political parties and third-party campaigners and does provide extensive guidance to support this, we are certainly not opposed in principle to encouraging the Electoral Commission to improve the current guidance that is on offer. The Government does and will continue to encourage the commission to work with groups that have specific concerns and to aid their understanding of the rules. That is important. Whether we need something further in legislation to ensure that we get the right outcome on guidance—a point that my noble friend is pushing at in his amendment —will need further consideration.

I look forward to engaging with him on this point ahead of the next stage of the Bill, because in debating terms and potentially in practical terms he has raised issues of importance, and the Government will consider carefully what he has said. In that light, I ask him to withdraw his amendment.

Lord Hodgson of Astley Abbotts Portrait Lord Hodgson of Astley Abbotts (Con)
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My Lords, I am grateful to noble Lords who have spoken in favour of my amendment: to the noble Lord, Lord Blunkett, for his support, and to the noble Lord, Lord Kerslake, who was kind enough to veer off his own track to give approval to this.

This is a new car which I am taking round the track for the first time to see how it corners and whether it will crash. We have not crashed, but I will say that there are some improvements that can be made to the car. The noble Lord, Lord Wallace, referred to procedure and whether guidance should come via the Speaker’s Committee to the Secretary of State. What sieves it goes through and in which order are still to be decided, and I quite understand that this could be improved or changed. They key thing is that there must be parliamentary approval from both Houses as the final step. The noble Lord, Lord Mann, and I will sample the delights of the working men’s clubs of Walsall and Aldridge at some date in the future.

The problem with putting codes of practice into primary legislation is that they cannot be changed. We are already suffering because PPERA and the 2014 Act have been left behind by events. Therefore, being stuck with a phraseology that has become increasingly out of date has to be balanced against the ability to move on a bit with changes over time through statutory instruments, which have parliamentary approval. Admittedly, this is not very satisfactory but they are discussed. Guidance is not the right word. There has to be a statutory code to give the protection referred to in the amendment.

I am grateful to the noble Lord, Lord Collins of Highbury, for his support and to the Minister for his further consideration. One can ask for no more. I have brought the car back to the starting point without crashing, which is pretty good.

The use of the term “permissive power” is the problem because it trammels freedom of action. Once how it will work has been written down, one cannot suddenly say, “Oh, we don’t quite like that bit after all”. This is the heart of the problem with third-party campaigning. The Electoral Commission wants freedom to dance around and third-party campaigners want some certainty as to what is happening. The best way to achieve this is via parliamentary approval of codes produced by the Electoral Commission. I beg leave to withdraw the amendment.

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Baroness Hayman of Ullock Portrait Baroness Hayman of Ullock (Lab)
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My Lords, this debate has ranged rather wide of the area covered by my amendments, to say the least. Having said that, it has been very interesting. As other noble Lords have said, the noble Lord, Lord Woolley, made a very important and powerful speech. I say to the noble Baroness, Lady Verma, that I am sure that we would all agree that every vote should count—of course it should—and I totally understand what she is saying. The challenge for us, as parliamentarians, is how we change that—that is a debate for another day, but she raised an incredibly important issue that we have to look at very carefully. Perhaps we should look at areas where we could do something to increase empowerment and engagement—perhaps that is missing from this Bill. I would be really interested to engage more with the noble Baroness to think about how we can support her, from this side, in what she is trying to achieve and to better understand her concerns.

I will not go into the manifesto commitment debate—my noble friend Lady Lister resolved that quite adequately. But she also raised an important concern, as did—

Lord True Portrait Lord True (Con)
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In the Queen’s Speech in October 2019, the Government announced that they would introduce legislation on voter identification. It was very clearly set out in the guidance and briefing that was given around the Queen’s Speech that that would specifically include photo identification and the free identity cards for local authorities. It was an announced and established policy of voter identification, and the manifesto referred to this.

Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett (Lab)
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The Queen’s Speech and the manifesto are different things, and the manifesto did not say “photo identification”.

Baroness Hayman of Ullock Portrait Baroness Hayman of Ullock (Lab)
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That is correct. I appreciate what the Minister said about the Queen’s Speech, but, again, my noble friend is absolutely correct. Members of the Government keep telling us that this was a manifesto commitment, but it is important to clarify the distinction between a manifesto commitment and what the Government decided to go forward with in the Queen’s Speech. We can debate that, I am sure—

Lord True Portrait Lord True (Con)
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That was the Queen’s Speech before, not after, the general election. It was established before the general election.

Baroness Hayman of Ullock Portrait Baroness Hayman of Ullock (Lab)
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In that case, can the Minister explain why it was not detailed in the manifesto?

Lord True Portrait Lord True (Con)
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That is because the manifesto referred to clearly established and announced policy on voter identification.

Baroness Hayman of Ullock Portrait Baroness Hayman of Ullock (Lab)
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In that case, I will come back to the pilot schemes. If the Government were intending to introduce only photographic ID, and that is what the commitment was, why were pilot schemes run without including photographic identification?

Lord True Portrait Lord True (Con)
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My Lords, I think that we should make progress—

None Portrait Noble Lords
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Oh!

Lord True Portrait Lord True (Con)
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Certain pilot schemes, which we have discussed, involve photo ID. I should leave it to my colleague to complete the group, and we can move on to the debate on clause stand part. The reality is as I have expressed it—that was the announced policy and what the Government hope to carry forward.