Electoral Commission Strategy and Policy Statement

Tuesday 6th February 2024

(2 months, 1 week ago)

Lords Chamber
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Motion to Approve
18:06
Moved by
Baroness Penn Portrait Baroness Penn
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That the draft Strategy and Policy Statement laid before the House on 14 December 2023 be approved.

Relevant document: 8th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

Baroness Penn Portrait The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Penn) (Con)
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My Lords, the Government are committed to strengthening the integrity of elections so that our democracy remains secure, modern, transparent and fair. The statement we are debating today sets out the Government’s priorities when it comes to these important areas and the Electoral Commission’s role in enabling the Government to meet them.

It is the Government of the day who hold the responsibility for setting out the policy and legislation on how elections are run, who can participate with regard to registration, franchise and candidacy, and how elections and campaigning are regulated. These fundamental elements of the policy framework are separate but directly relevant to the role of the Electoral Commission, which, as an independent statutory body, oversees elections and regulates political finance. In other words, the Electoral Commission’s statutory remit exists to regulate the framework set out by the Government of the day’s electoral policies and legislation as approved by Parliament. Therefore, it is entirely appropriate for the Government to set out their policy priorities for the commission to have regard to in the delivery of its functions.

In their 2019 manifesto, the Government committed to protecting the integrity of our democracy. The Elections Act 2022 delivered this commitment by tackling voter fraud, improving the accessibility of elections and increasing participation in elections. All of these are government policy priorities which the commission, due to the nature of its role and statutory functions, plays an essential role in supporting. This is why the statement requires the commission to have regard to matters such as tackling voter fraud, supporting returning officers in ensuring the secrecy of the ballot inside polling stations, and supporting participation by informing the public about the franchise and electoral registration when carrying out its relevant regulatory functions.

The statement provides guidance on the commission’s role in supporting the Government’s ambitions to combat foreign interference through compliance with the political finance framework, and to improve transparency in UK elections through the new digital imprint regime. The statement also strengthens the accountability of the Electoral Commission to Parliament, via scrutiny of the Speaker’s Committee, which was given the remit under the Elections Act 2022 to allow it to examine the performance of the Electoral Commission in relation to its duty to have regard to the statement. Once the Statement is designated, the Speaker’s Committee will have the opportunity to consider the commission’s actions across a range of areas relevant to the statement, and will be able to report to Parliament its view of the commission’s performance of its duty to have regard to the statement. Such a report would provide an opportunity for greater parliamentary awareness and interest in the Electoral Commission’s performance.

I acknowledge that the provision for the statement was closely debated during the passage of the Elections Bill, now Act, two years ago. The Government listened carefully then to points raised by noble Lords and made several changes to address them. We added a safeguard in the legislation to ensure that a future Government could not attempt to use the statement to inappropriately interfere with the commission’s responsibilities in relation to the rules set out in the Political Parties, Elections and Referendums Act, as well as prohibiting any references to any specific enforcement or investigatory activities against any particular person. We also added a requirement for the statement to go through an enhanced parliamentary procedure.

Throughout this enhanced scrutiny process, we have listened carefully to representations. In response to the statutory consultation, the Government substantively revised the draft statement to provide clarifications and reassurances relating to the operational independence of the Electoral Commission. A full list of those changes would be too long to detail, but I will outline their main effects. First, the Government amended the draft statement to provide additional reassurances. That in no way amounts to the Government directing the commission. Secondly, the revised draft clarified that the statement articulated the Government’s priorities and not the commission’s. Thirdly, the revised draft clarified that the commissioners and the commission’s executive leadership remain responsible for determining how the commission exercises its functions.

The Government then laid the revised draft of the statement before Parliament for 60 days to allow for further comment by parliamentarians. During this period the Government received two further representations, from the Speaker’s Committee and the Levelling Up, Housing and Communities Committee. Both representations reiterated principled objections to the statement that had been articulated during the statutory consultation, particularly around concerns that the statement undermines the commission’s operational independence. These sentiments are referenced in the amendment to the Motion tabled by the noble Lord, Lord Khan of Burnley.

After careful consideration, the Government decided that the revised draft statement of June 2023 should remain unamended, save for minor stylistic changes. It is that version that has now been laid before Parliament for approval. As I have just set out, this is because the Government had already made significant revisions to the statement after the statutory consultation, to provide clarifications and reassurances relating to the operational independence of the Electoral Commission. The Government are emphatic that the statement must always be compatible with the foundational principle of the commission’s operational independence. The commission will be required only to have regard to the statement in the exercise of its functions. This legal duty does not replace or undermine the commission’s other statutory duties or give the Government powers to direct the commission’s decision-making.

The statement will help to ensure that the Electoral Commission operates as an effective, operationally independent regulator, discharging its responsibilities efficiently and commanding the trust and confidence of both Parliament and the public. I beg to move.

Amendment to the Motion

Moved by
Lord Khan of Burnley Portrait Lord Khan of Burnley
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At end insert “but that this House regrets that the draft Strategy and Policy Statement has been laid, despite significant concerns raised by the Speaker’s Committee, the Electoral Commission, and the Levelling Up, Housing and Communities Select Committee, during the statutory consultation process, and the finding by the Speaker’s Committee that the statement as drafted is ‘not fit for purpose and inconsistent with the Commission’s role as an independent regulator’”.

Baroness Noakes Portrait Baroness Noakes (Con)
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My Lords, the noble Lord was not in his place at the beginning of this debate—not by a very long way. I do not think it appropriate for him to speak in the debate.

Lord Evans of Rainow Portrait Lord Evans of Rainow (Con)
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My Lords, through the usual channels we agreed that the noble Lord can speak.

Lord Khan of Burnley Portrait Lord Khan of Burnley (Lab)
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My Lords, I apologise to the House for my slight delay in getting here; there was an emergency that I had to deal with. I thank the Minister for her introduction and for meeting me and my noble friend Lady Taylor of Stevenage ahead of this debate.

I point to the fundamental issue sitting at the heart of this debate. We have tabled the amendment because this statement is unnecessary and the Government have provided no evidence for why it is needed. Unfortunately, nothing we have heard from the Ministers in the other place or here today proves otherwise. I pay tribute to the much-missed Lord Judge for his work in this area during the passage of the Elections Act. He tabled amendments seeking to remove Clauses 15 and 16, which provided for the policy statement we are discussing today. The amendment enjoyed overwhelming support. There was cross-party agreement that the commission’s independence is vital to the health of our democracy. In moving the vote, Lord Judge said:

“I really do not think that anyone in your Lordships’ House can have the slightest doubt about the constitutional imperative that the Electoral Commission should be politically independent—independent of all political influence, whether direct or indirect, over the electoral process”.—[Official Report, 25/4/22; col. 23.]


Clauses 15 and 16, now Sections 16 and 17, are repugnant to that foundational principle. They require the commission to have regard to—at the very lowest, to pay close attention to—the strategy and policy principles and to follow the guidance of the Government of the day. The House benefited hugely from Lord Judge’s wisdom and expertise on this issue, and we are poorer for not having his thoughts in today’s debate.

Following the passage of the Elections Act, the Government’s strategy and policy statement has been the subject of consultation. This includes statutory consultation with the Levelling Up, Housing and Communities Select Committee, the Speaker’s Committee on the Electoral Commission and the Electoral Commission itself. The Select Committee found that the statement assumes that

“Government priorities must automatically also be Commission priorities, and for the most part reads as though the Commission was an arm of Government”.

The Speaker’s Committee reported that the

“uncertainty, confusion, and new legal risks”

being introduced

“are likely to reduce the Commission’s … effectiveness, in return for no material benefit to the democratic process”.

18:15
In addition, the Scottish Government said that the statement was
“an unwelcome and unnecessary interference with the independence of the Electoral Commission”,
with a risk that its impact
“could read across to devolved elections”.
The Welsh Government said that the statement
“will undermine the Commission’s successful adaptation to devolution”
and represents
“a backward step for the Commission and wider governance of the UK”.
The draft statement does not appropriately reflect the complexity of the commission’s existing accountability to each of the UK’s legislatures. While the statement excludes the commission’s devolved functions, some cross-cutting areas of the commission’s work are funded jointly by the three Parliaments. The statement does not properly reflect this, creating a risk that the UK Government’s guidance on the statement could affect work undertaken for the other legislatures to which the commission is accountable.
In 2000, the previous Labour Government set up the Electoral Commission to act as a guardian of our democratic system. At the heart of that decision was a need for a central pillar of independence within our politics, a body that the public could trust and that would not suffer interference from the Government of the day or from future Governments of any colour. An independent body must be allowed to work independently and without interference from any political party. As my honourable friend Florence Eshalomi MP said:
“Handing Ministers in the government the ability to set the agenda of the independent Electoral Commission is a dangerous politicisation of the watchdog”.
It seems that the commission is not legally bound to follow the strategy and policy statement, only to have regard to it. What does that mean? What happens if the commission finds itself conflicted between the statement and the statute? Can it be challenged in the courts, and if so by whom—by political parties, by non-party campaigners or by the Government themselves? If it is not law, how is it to be enforced? Who decides whether the commission is compliant? This statement in effect sets priorities for the commission. That has not only operational but budgetary consequences. What are the implications for the commission if it thinks that the Government’s statement is unnecessary and completely ignores it?
We agree with the Electoral Commission’s strongly held view that the introduction of a strategy and policy statement enabling the Government to guide the work of the commission is inconsistent with the role that an independent electoral commission plays in a healthy democracy. This statement has no precedent in the accountability arrangements of electoral commissions in other comparable democracies such as Canada, Australia and New Zealand. If made law, these provisions will enable a future Government to influence the commission’s operational functions and decision-making. This statement will seek to guide the priorities of the commission, including its enforcement work, with a requirement to regard the Government’s view.
The draft statement is currently neither necessary nor likely to assist the commission in its pursuit of the aims and objectives already approved by the Speaker’s Committee and adopted by the commission. As the Speaker’s Committee has said, in its view
“the Electoral Commission generally performs its role effectively”
and the draft statement is
“likely to hinder, rather than enhance, the Commission’s work”.
In light of the scathing consultation responses and feedback in relation to this statement, I hope that the Minister and the Government will think again. I ask all noble Lords to support our amendment to the Motion to help the Government to think again.
Lord Rennard Portrait Lord Rennard (LD)
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My Lords, I too apologise for my slightly late arrival in the Chamber; earlier business finished more rapidly than might have been expected.

I thank the Minister for her briefing meeting with me and others last week to discuss these measures. In response to her points now and then, I say that “substantive” is a subjective word. She says that substantive changes have been made to the policy and strategy statement being imposed on the Electoral Commission, but nobody outside the Government agrees with that description. The Electoral Commission itself certainly does not; its briefing to us sets out the commission’s clear view:

“The introduction of a mechanism such as a strategy and policy statement—by which a government can guide an electoral commission’s work—is inconsistent with this independent role”


of the Electoral Commission.

Our Secondary Legislation Scrutiny Committee highlighted the fact that the Speaker’s Committee—the body responsible for holding the commission to account on behalf of Parliament—objects to the draft statement as being

“not fit for purpose and inconsistent with the Commission’s role as an independent regulator”.

The Electoral Commission is not like other regulators, such as those for the utility industries. Its role includes advising on the framing of election laws and it helps to police them. It is not appropriate, therefore, for the party in power to set the commission’s policy and strategy. Putting the governing party in charge of this is like letting GB News set the strategy and policy for Ofcom; Southern Water to set if for Ofwat; or Eton College to set it for Ofsted.

I led for my party during the 11 days of debate in this Chamber on what became the Political Parties, Elections and Referendums Act 2000. All parties were agreed throughout this process on the essential need for the Electoral Commission to be independent of government or party. Its creation was proposed by the Committee on Standards in Public Life—a body created by Sir John Major to try to clean up the reputation of politics. It was legislated for on the basis that it

“must be as independent of the Government of the day as our constitutional arrangements allow”.

The late and greatly respected Lord MacKay of Ardbrecknish led for the Conservative Benches, in opposition on this occasion, during all those debates. He defended the principle of the Electoral Commission’s independence. He argued that our election laws should not be subject to control by what he called “Tony’s cronies”. So I say now that the Electoral Commission should not be subject to control by Michael Gove and his cronies.

I will give four examples of how this Government have history in seeking to change the rules of elections to favour themselves. The first is the introduction of very specific forms of photo ID in order to vote at a polling station. This made it far harder to vote than anything required by any evidence of fraud in Great Britain. The introduction was defended by the Government on the basis that ID is required to collect a parcel from a post office. Surely, then, forms of ID acceptable at a post office should be acceptable at a polling station—but they are not. Despite evidence of people being turned away from polling stations and many more failing to attend because of specific ID requirements, the Government refused to act on the advice of the Electoral Commission to allow wider forms of safe and reliable voter ID to be used.

The Electoral Commission’s chair, Mr John Pullinger, was interviewed recently in the Financial Times. The article stated:

“Conservative ministers have ‘opened themselves’ up to the charge that a new voter identification scheme is designed to benefit the Tory party, according to the head of the UK elections watchdog”.


This fact was admitted by no less a person than Jacob Rees-Mogg. This Government are imposing classic voter suppression techniques taken from the Trump Republican playbook.

Secondly, this Government have a history of seeking to undermine the independence of the Electoral Commission. This is the seventh Government since the commission was created, and none of the previous six Governments sought to control it in the way that is now set out. The excellent previous chair of the commission, Sir John Holmes, found that his term of office was not renewed by the Government after he and the commission pursued illegal activity by the Conservative Party. This resulted in a senior Conservative Party official escaping jail only on compassionate grounds, but after a damning judgment by Mr Justice Edis.

Conservative MPs wanted revenge. This series of investigations was followed by the then Conservative Party co-chair, Amanda Milling MP, writing in the Daily Telegraph in August 2020 to say that, if the Electoral Commission failed to make the changes that the Government wanted,

“the only option would be to abolish it”.

An independent election watchdog should not operate under such threats in a democracy.

Thirdly, this Government have, in effect, ended the principle of the level playing field that was first established to provide fair elections in Gladstone’s day. As a funding arms race developed, in 2000, a national limit for political parties to spend in a general election was established. Since then, six different Governments have not seen any need to raise this limit and only one political party has generally come close to spending the legal maximum—the Conservative Party. Increasing the national party expense limit from around £19.5 million to around £36 million is clearly designed to benefit one party only—the Conservative Party.

Meanwhile, the Electoral Commission said that the Government had provided no evidence of the need for this increase. When I questioned this most significant change to our election laws, I was told that it was an exercise that had been performed by successive Governments of all political colours. It is not, therefore, an unusual law. But this is simply and absolutely not the case: no previous Government of any party or colour have sought to raise this limit. All my questions about national party spending have been met with answers relevant only to local candidate spending, which of course is quite different. This Government have changed the national spending limits unilaterally and without a vote in Parliament.

My fourth and final example is the ban, in 2022, on the distribution of political literature by party volunteers in the approach to major local elections, when no such ban was imposed on the distribution of political literature by pre-existing commercial operators. It cannot conceivably be a coincidence that the Labour Party and the Liberal Democrats rely mainly on volunteer activists to deliver their leaflets, while the Conservative Party generally relies on paying commercial delivery companies to distribute its leaflets. So I asked why one form of delivery was banned when exactly the same activity by employees of commercial firms used by the Conservatives was not banned. I was frequently told that this was because of scientific, health and medical advice. I asked repeatedly for some of this purported evidence to be made available, but it never was.

18:30
I then pursued sight of this evidence through freedom of information requests and was told by the Cabinet Office that it would not be in the public interest to disclose any of it. If that is so, why not? My requests were repeatedly dragged out for as long as possible. When my requests for information were eventually still refused, I appealed to the Information Commissioner. Then, after months of stalling, there was a miracle. Somehow, what the Government had spent months saying that they had, but was not in the public interest to disclose, was now claimed never to have existed in the first place.
How could evidence that Ministers regularly claimed they relied on to change election rules in their favour never have existed? The Information Commissioner investigated further and, eventually and despite my incredulity, decided on the balance of probabilities that the evidence did not exist after all. I suggest that it can be shown beyond reasonable doubt that this Government cannot be trusted to issue such a strategy and policy statement, and to take significant control over the previously independent Electoral Commission.
Baroness Noakes Portrait Baroness Noakes (Con)
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My Lords, I shall try to confine my remarks to the policy statement that is the subject of this Motion and not go off-piste into various aspects of election funding, as the noble Lord, Lord Rennard, did.

I welcome the Government’s Electoral Commission Strategy and Policy Statement, and I am completely mystified by the fuss about it. For several years, the Government have been issuing strategy and policy statements to public bodies. This is one way of correcting a serious imbalance that unelected quangos have created in our constitution. Over the years, more and more public bodies have taken over functions once carried out by the Government, but the accountability mechanisms that acted as checks and balances on those bodies were often weak.

Where bodies such as the Electoral Commission have operational independence from the Executive, such independence must be accompanied by strong accountability —precisely because the Executive have few powers in relation to such bodies. For example, there is no power of direction over the Electoral Commission, for good reasons. Its independence increases, rather than diminishes, the need for effective accountability. The statement is aimed at this accountability.

I am sure that all noble Lords value the work of the Electoral Commission in ensuring that there is full confidence in the electoral system. It is not, however, a perfect institution—as my noble friend Lord Pickles laid out in his 2016 report on electoral fraud. The Electoral Commission was in denial about its failure to deal with electoral fraud in Tower Hamlets. My noble friend recommended—rightly, in my view—that the commission’s accountability mechanisms should be improved.

Many of us still feel aggrieved that the Electoral Commission appeared to treat organisations which campaigned for Brexit in a manner that can at best be described as high-handed. The Electoral Commission was found to be at fault in the case of Mr Darren Grimes, who won his appeal against an improperly imposed fine.

So let us not pretend that this is a body that does not need to be accountable, or that the system originally set up involving the Speaker’s Committee was perfect. The strategy and policy statement, together with a widening of the role of the Speaker’s Committee, was the Government’s chosen course of action. It was debated extensively, in particular in your Lordships’ House, when the Elections Act 2022 was passed. To a large extent, the negative responses to this statement are rerunning those debates. But the plain fact is that Parliament has already decided to give the Government a wide power to issue the statement. The statement in no way changes the statutory remit and duties of the Electoral Commission. It merely sets out the Government’s priorities for the electoral system, which are in themselves uncontroversial. The Electoral Commission merely must have regard to them and report against them.

The Government have been clear that the language of the statement, including the word “should”, does not impinge on the Electoral Commission’s operational independence. They have been clear throughout and have added considerable clarification to the final version of the statement to secure that.

The Secondary Legislation Scrutiny Committee of your Lordships’ House rightly drew the attention of the House to the draft statement on the back of the views expressed by the Speaker’s Committee and the chairman of the Levelling Up Committee in the other place, during the Government’s second consultation. It is important to note that the meeting at which the Speaker’s Committee reached its views was somewhat unbalanced. There are 10 members of the Speaker’s Committee, including Mr Speaker himself. Of the remaining nine members, five are Conservatives, three are Labour and one is SNP. Three of the Conservatives are DLUHC Ministers, and they recused themselves—so the report comes from a body with an unusual political balance. In addition, the chairman of the Levelling Up Committee is a member of the Speaker’s Committee, and so seems to have counted twice in the balance of opinion.

I urge noble Lords to support the statement. The Government have a legitimate role in setting out policy priorities for our electoral system. Opposing the statement would create an accountability void around an important public body.

Lord Hayward Portrait Lord Hayward (Con)
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My Lords, first, I apologise to the House because I will speak for longer than I would normally do in such debates. Secondly, if there are any Latin scholars in the Chamber, it would be useful for the latter part of my speech if they could let me know the plural of “Spartacus”. I hope this will become clear.

This is a bittersweet moment, as the noble Lord, Lord Khan, said. For those of us who participated in the debate on the Elections Bill, the contribution of Lord Judge was truly—and I can use only one word, a modern phraseology—awesome. Whether you agreed or disagreed, it was a joy to sit and listen to it. I happened to agree with it and found it a fascinating experience. I am so sorry that he is not here now.

I said that this moment is bittersweet because in the speech I made after Lord Judge’s, I balanced the difficulties of airing criticism of the Electoral Commission that pertained at that time. I have never been so publicly critical of any organisation as I was on that occasion. I described it as “institutionally arrogant”. Therefore, I have sympathy with what the noble Baroness, Lady Noakes, just said—but it applied to a different Electoral Commission. The personnel have changed substantially. I pay credit to its current chair John Pullinger and its previous chief executive Shaun McNally for turning it around to become an organisation it would now be impossible to describe in those words. It is efficient and effective and responds to queries very quickly. I will come to that in a moment.

I listened to the debate on this subject in the other House. On several occasions, the Minister referred to the wording in the document we are debating as “benign”. Everything is benign in the hands of those who are benign, but if you happen to be malign you can use the words that may appear benign to others and dramatically change the whole process—that is what I fear.

However, I will give the body of my speech over to something that is the responsibility of several bodies, including the Electoral Commission: opinion polls which are anonymously funded and set out specifically to influence politics in one form or another.

Democracy in this country is strong. The noble Lord, Lord Rennard, and I agree on many things, but I wish he would not cite a number of things that relate to other matters in one form or another. However, I am not going to take issue with those matters because I will cover an issue on which I think he and I and a number of Members of this House strongly agree. It is the recent YouGov Telegraph poll. As far as I am concerned, it is antidemocratic. We have a strong democracy. We want to maintain it in one form or another. The noble Lords, Lord Rennard and Lord Khan, and I may view differently certain elements of our electoral law, but I think everybody in this Chamber wants to protect the strong democracy we have in this country, the openness that is available for all of us to express views whatever they may happen to be. We can disagree, but we should disagree courteously, listen to the alternatives and then go forward, but you disagree openly. What you do not do is start funding opinion polls where there is no accountable source of money, because there is a risk in going down that path that the whole basis of our democracy falls into disrepute, and the actions that we have seen in recent weeks could be picked up by many other people.

As I think many Members of this House will know, I wrote to the Electoral Commission and the UK Statistics Authority asking them to look at the issue, but not only should they look at the issue but the other four parties—that is “parties” with a small “p”—involved also need to look at the issues. One of those parties is us as legislators. Are the legislation and the regulation correct so that they give the Electoral Commission and the UK Statistics Authority the ability to comment on opinion polls in one form or another?

The second group I shall comment on is YouGov, as the pollsters. I think it has learned its lesson from its experience. I think it was—to put it politely—unwise to accept the questions it put out to the public. It was certainly unwise to accept that the questions were being asked and paid for by an organisation which had no apparent structure. It beggars belief that it could be in a position whereby an organisation was created overnight, it had no evidence of who was funding it and it then went ahead with a set of opinion polls in the form that it did. I think YouGov has learned the lesson, but one comment I would make to YouGov at this point is that when the bills are paid, it should hand over the details of the sources of that money to the Electoral Commission for investigation. It does not have to be a public investigation, but it should be fully investigated.

Then we come to the Daily Telegraph, the newspaper that exposed MPs’ expenses. Day after day, it said it was the duty of the paper to identify what the public did not have sight of. If that was the case in 2008-09, one might ask why it is not the same responsibility in 2024 to identify what goes on in private in one form or another.

The British Polling Council has a difficult job— I used to serve as the head of a trade association; you set the rules for members, but there may be recalcitrant members who cannot or choose not to follow the rules—but I think the British Polling Council should look carefully at what has happened in recent weeks. I have already indicated the UK Statistics Authority.

18:45
The Telegraph has used and abused figures in such a way that YouGov felt required to put the longest qualification I have ever witnessed of any single opinion poll on its website. It used phrases like “red herring” and “It’s not true” when correcting what the Daily Telegraph had done. That is why the UK Statistics Authority should have a role in monitoring this. I do not expect it to go into every single complaint, because if it did it would be dealing ad infinitum with our disagreements across the different political parties.
I believe the Electoral Commission has a role in such circumstances. Issues have been raised by this poll. The anonymity which has been held to by we-do-not-know-who is something that I find difficult to accept, because if they can do it, every political party can do it and everybody else in the country can do it. There is a risk that if we go down that path, our strong and healthy democracy which we have had for many years will fall into disrepute and be unacceptable.
In the past two hours, I have had a reply from John Pullinger, which I have copied to the Labour and Liberal Democrat Front Benches. It raises questions and discusses issues. There are implications for legislators —there is no question—and I think it will be worth while for the political parties, the Parliamentary Parties Panels or whatever to go into discussion with the Electoral Commission to see what the best way is to protect our democracy, which I fear for if we do not resolve this particular problem.
When I made my speech in relation to the clause with Lord Judge and others, I referred to the fear that I had that the clause could be used by the Zimbabwe Electoral Commission, which is dominated by people from ZANU-PF, and that it could say “This is what you do in Britain”. That was the risk. I identified to the House that I had been an electoral observer for the Commonwealth, but what I did not identify at that point was that on the night of the election we, as observers, were approached in a dilapidated school in the dark by a group of people who told us that one of the opposition workers had been arrested and taken into jail for the mere objection to certain people casting their vote because they did not believe they were correctly registered. The next day, I intervened on that case. I had to speak to the arresting officer over the phone because the person concerned was in jail 40 miles away and was due to appear in court within the hour. I spoke to the accused, and fortunately that person was released immediately, but that is what I was concerned about. Joseph Bonda had the courage to stand up and say, “This is antidemocratic”. The next day, the noble Baroness, Lady Jay, intervened when Mnangagwa’s police came into the grounds of the hotel in Harare where we were centred in an effort to stop a press conference by the leader of the opposition. The noble Baroness led the confrontation. I do not want to make it sound like Rorke’s Drift because it was not, but it took a lot of courage. Both those people were showing what defending democracy was like and should be for us. We should not take anything for granted. That is what we should protect in a healthy democracy.
That is the reason I ask why we have accepted the position, and why the Telegraph, YouGov and the funders of an anonymous opinion poll seem to think it is correct to undermine our healthy democracy. They are letting down the likes of Joseph Bonda and the noble Baroness, Lady Jay. I asked the question earlier, “Who are these people? Why aren’t they like Spartacus standing up and saying, ‘I am funding this anonymous poll’? It is because they lack the courage to do so. It is a case of fat wallets and no honour. They are clearly not democrats. As far as I am concerned, I hope the Telegraph and YouGov will mend their ways. They can do, and I believe the latter will do.
This statement and the ability to intervene through an Electoral Commission will undermine our democracy; certain people have shown that you can do so very effectively. Our whole democracy is at risk if people do not come forth and be honest with the nation, because other people will go down the same route in the run-up to the next election.
Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP)
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My Lords, it is a pleasure and an honour to briefly follow the noble Lord, Lord Hayward, and that extremely powerful and important speech. It is important in this debate that the House hears from the insurgent voice, the non-establishment voice, the voice of change, which the Green Party represents. However, I should declare an interest because much of the debate on this statement has been about the place of money in our politics, and the Green Party basically does not have any in comparison to the people we have just been hearing about. We operate on the enthusiasm and the energy of our members, the power of our arguments, the strength of our debate; that is what should determine our politics and be the foundation of democracy. Overseeing that should be the independent Electoral Commission. We have heard again and again that, if we were judging any other country, an independent electoral commission would be the absolute basis of judgment. We should come back to our own Secondary Legislation Scrutiny Committee’s statement, in its usual modest terms:

“The House may wish to press the Minister for a compelling justification for the Government’s approach”.


The noble Baroness, Lady Noakes, made a valiant effort to put the case and said that the Electoral Commission was not a perfect institution. I do not think anyone here would claim that there was such a thing as a perfect institution. However, I invite your Lordships’ House to consider the classic scales of justice and weigh up a judgment of the independent Electoral Commission versus the Government, with all their vested interests, and say which way should those scales be weighed in the interests of justice and the interests of democracy.

Lord Wallace of Saltaire Portrait Lord Wallace of Saltaire (LD)
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My Lords, we are talking about the quality of our democracy and the central role of the Electoral Commission in maintaining that quality. I thank the noble Lord, Lord Hayward, for that fascinating and important speech. If I may, I will start by adding a little to it. On Sunday the Telegraph published an op-ed by Mark Littlewood in which in effect he claimed to be the main instigator and motivator for a new group within the Conservative Party, the Popular Conservatives, which is being launched today. The Institute for Economic Affairs is a well-funded think tank which does not publish its funding. We know that some of its funding comes from right-wing foundations within the United States, and other parts of its funding come from American companies. Think tanks are trying to influence directly the way parties and politics operate. Just before Christmas, we had a statutory instrument which was dependent very heavily on a TaxPayers’ Alliance report as the basis for the evidence which the Government had. I regularly read Policy Exchange announcements which tell us how closely particular Bills have followed its recommendations. None of those publishes its funding.

The question of funding and politics, and increasingly foreign funding and politics, needs to be extended. This Government, in their remaining months, or the next Government need to take that on. If the noble Lord, Lord Hayward, will allow me, I will turn to another part of John Pullinger’s letter today, in which he says that the issue of foreign interference extends across the system and that the Electoral Commission is committed to ensuring that political funding is transparent and to preventing foreign money from entering UK politics. He says that the Electoral Commission has recommended strengthening the law to prevent foreign funding from being unlawfully used in UK political campaigns, but that the UK Government have told it that they do not intend to act on its recommendations.

The noble Baroness, Lady Noakes, said that the Electoral Commission is not sufficiently accountable, because it does not really answer to the Executive. The Electoral Commission is accountable to Parliament and, in our democratic country, Parliament is separate from the Executive, and we all share across the parties an interest in our elections being seen to be fair. Every Conservative considering a proposal such as this should think actively, “What would we say if we were in opposition and there were a Government of a different colour issuing suggestions, proposals and instructions to the Electoral Commission?” I think that, rightly, in opposition Conservatives would be strongly opposed to that. This is an unnecessary statement. The 2022 Act says:

“The Secretary of State may”—


I emphasise “may”—

“designate a statement for the purposes of this section”.

Only if the Secretary of State does so must the Electoral Commission then have regard and follow up and report every 12 months, as it goes on to say. The levelling-up committee of the House of Commons said very clearly that no statement was necessary at this time. I have some sympathy with the Minister on this, as she has inherited something which comes from the Johnson Government, who were furious with the Electoral Commission for its critical comments on election spending in the 2019 election, and as revenge wanted to impose limits on the Electoral Commission or even, as my noble friend mentioned, to abolish it. We now have, we hoped and thought, a different quality in our Conservative Government, but this is a hangover from where we were before.

The statement goes on to say that the commission remains “operationally” independent. That is a weasel word—it should be independent, not independent within limits. The statement seeks to procure greater accountability to Parliament, and you do not ensure greater accountability to Parliament by having the Government give it instructions. Paragraph 4 says:

“We place citizens’ participation at the heart of our democracy”.


However, it then goes on to make no reference to closing the gap between our adult population of citizens and those who are on the electoral register, estimated to be 8 million citizens who are not registered to vote. Paragraph 5 talks about voter ID and makes no concessions on wider acceptable IDs for younger people. Paragraph 9 talks about combating the threat of foreign interference but says nothing about tighter checks on the ultimate origins of large donations from overseas.

The level of public distrust in government in Britain is higher than it has ever been in my lifetime. It is also higher than in any comparable democracy except for the United States. I read in the Times that there is concern among strategists that

“public trust in politics has fallen so dramatically that many people may not bother to vote at all”

in the next election. That ought to concern all of us. We should therefore send a clear signal that we regret that the Government are attempting to compromise the independence of the Electoral Commission, the independence of which is central to the quality of our democracy.

19:00
Baroness Penn Portrait Baroness Penn (Con)
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My Lords, I thank all noble Lords for their thoughtful consideration and input today. I will seek to address some of the points made by noble Lords, although I may not be as wide-ranging in my responses as noble Lords were in their contributions.

I agree with both noble Lords, Lord Khan and Lord Rennard, about the value of the contributions that we have had in these debates previously in this House by both Lord Judge and Lord Mackay. While the Government did not always agree with those points, we are all the poorer for their absence from the debate we are having today.

The noble Lord, Lord Khan, questioned whether the statement sets the priorities for the commission. The introduction of the statement will not replace the commission’s other duties. The commission will continue to set its own priorities; I reassure all noble Lords on that matter. The noble Lord, Lord Khan, asked what happens if the statement conflicts with the commission’s priorities. Does it override them or can the commission simply ignore the statement? Neither is the case. As my noble friend Lady Noakes set out clearly and eloquently, the duty to have regard to a statement of government policy in this area is not unusual and does not conflict with the operational independence of the commission. The duty to have regard simply means that, when carrying out its functions, the commission will be required to consider the statement and weigh it up against other relevant considerations. It is for the commission to independently decide how best to factor the statement into its decision-making processes and corporate documents.

My noble friend was right that the concern about the word “should” in the statement is misguided. In legislation, the relevant point is that the commission has the duty to have regard to the statement. That is a well-established legal principle. Therefore the use of the word “should”, or any alternative phrase in the statement, does not change anything relating to what the commission must do in order to fulfil its legal duties. The duty to have regard simply means that it needs to consider it and weigh it up carefully.

On the question of who scrutinises or enforces whether the commission has had regard to the statement, that is for the Speaker’s Committee. The Elections Act gave the committee the power to scrutinise the commission’s duty to have regard to the statement.

The noble Lord, Lord Khan, also asked about enforcement and the ability of the statement to influence the Electoral Commission’s enforcement work. The Government wholeheartedly agree that the commission’s enforcement work should be left to the commission. That is why the legislation underpinning the statement explicitly states that the Secretary of State must have regard to the statutory duties of the commission to monitor and secure compliance with electoral law, and the statement must not contain provision relating to any specific enforcement or investigatory activity. Again, I emphasise that the statement does not provide operational instructions to the commission.

The noble Lord, Lord Rennard, said the Government’s assertion that substantive changes had been made to the draft statement in response to the statutory consultation was subjective. It may be, but it was acknowledged by the Speaker’s Committee in its response to the Government that some of the changes have clarified the wording of the initial draft statement and constitute substantive improvement. At least in that regard, there is some agreement between the Government and the Speaker’s Committee, although I recognise that there is wider disagreement, which was drawn to the House’s attention by the Secondary Legislation Scrutiny Committee.

I will not dwell on some of the wider issues. Suffice to say that the statement sets out the Government’s priorities in areas that touch on matters such as voter ID, where the Government continue to be of the view that it is essential that we stamp out the potential for voter fraud. We have looked carefully at the implementation of this policy. We found that, in the recent elections, 99.75% of voters were able to cast their vote successfully and adapted well to the rollout of voter ID in Great Britain. Obviously, that is something that we will continue to monitor closely, but the signs are good.

Broader points were raised about people’s confidence in the system. My understanding is that the Electoral Commission has done some of its own research in this area. It found that 90% of voters were satisfied with the process of voting in the 2023 elections. That is in line with the most recent comparable elections in 2019, where 91% of voters were satisfied. Our own work has found that voter satisfaction with the voting process is positive, and we continue to work to ensure that that continues to be the case.

The noble Lord, Lord Rennard, raised the question of spending limits. I simply say to him that the provision for uprating those spending limits was set out and anticipated by Parliament in the original legislation. That is the mechanism by which we have uprated those limits to take inflation into account, which is not an unusual process across the business of government.

I emphasise to noble Lords that the Government absolutely agree about the importance of the independence of the Electoral Commission, but we also think it important for all bodies to be accountable. The measures in the statement are a way for the Electoral Commission to be held to account by Parliament, and we think that is a reasonable measure to take. I therefore hope the noble Lord, Lord Khan, is able to withdraw his amendment to the Motion.

Lord Khan of Burnley Portrait Lord Khan of Burnley (Lab)
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I thank the Minister for her response and her attempt to address the issue. I also thank noble Lords across the House for their thoughtful contributions. A number of them raised concerns about the policy statement and others about wider electoral law.

The function of the Electoral Commission is

“to ensure a level playing field between political parties”.

One team should not get to tell the umpire how to enforce the rules of the game. That is what this statement is doing and is clearly perceived to be doing, which ultimately is undermining trust in our politics.

There are issues that need tackling. There are rising considerations, such as the threat of generative artificial intelligence, the use of deepfakes, the spread of disinformation, overseas involvement, and the scraping of people’s data. None of that has been tackled today, but instead the Government are paying attention to a problem that just does not exist. Both the levelling-up committee and the Speaker’s Committee on the Electoral Commission, as statutory consultees, concluded that no statement was necessary. The levelling-up committee said that

“no evidence has been provided justifying it”.

The guidance in the Statement presented before us today would add complexity, confusion, and extra legal risk.

Nothing is wrong with the current system, in which the electoral system reports to the elected House and not to the Government. If something is not broken, why fix it? The Minister did not give us one example of something that the commission is not doing right at present which it will be made to do right and better by means of this statement. What are the problems that need addressing, and what will be different tomorrow from today? She did not give one example of that.

In view of the huge importance of this issue, I would like to test the opinion of the House and put my amendment to a vote.

19:09

Division 2

Ayes: 175


Labour: 94
Liberal Democrat: 57
Crossbench: 18
Non-affiliated: 5
Green Party: 1

Noes: 159


Conservative: 152
Democratic Unionist Party: 3
Crossbench: 2
Non-affiliated: 2

19:19
Motion, as amended, agreed.