Elections Bill

Baroness Wheatcroft Excerpts

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

That is why they should not stand part of the Bill.

[Baroness Wheatcroft (CB)]

My Lords, the noble Baroness, Lady Noakes, drew a parallel between the Electoral Commission and Ofcom. However, Ofcom has a huge and evolving remit; inevitably, it has to respond to changes in government policy in areas as diverse as regulating the spectrum and the quality of broadcasting. The Electoral Commission is a very different beast, with a very straightforward role: to oversee elections and regulate political finance to ensure that we have a free and fair election system.

It describes its job as working

“to promote public confidence in the democratic process and ensure its integrity”.

What could a Government want to do to change that? It is simple, straightforward and easily understood. I cannot understand what the policy statement enshrined in Clauses 14 and 15 would add to that quite straightforward purpose. Nothing I have heard today has helped me in that direction, and I hope the Minister might be able to answer the question that others have asked: what is the purpose of this?

That there is room for improvement in the way the commission operates is true, but the proposed policy statement is simply not the way to accomplish that. In my experience, when it comes to elections, political parties have one overriding objective: to win as many votes as possible. Indeed, in the 2015 general election, the Conservative Party was so keen to win votes in South Thanet that it drove a coach and horses—and, indeed, a battle bus—through the rules. So egregious were the breaches that in 2019, Mr Justice Edis, presiding over the subsequent court case, was highly critical of what he termed Conservative Central Office’s

“culture of convenient self-deception and lack of clarity about what was permissible in law and what was not.”

The senior central office employee who was instrumental in this electoral fraud was sentenced to nine months in prison on 22 counts. It was only because of her personal circumstances that the sentences were suspended. There is no doubt that Conservative Central Office is not the only political headquarters to have played fast and loose with the rules if it thought it could. That is why we do not want political parties anywhere near the Electoral Commission.

Those who drafted Clause 14 may have done so with the most honourable intentions in mind but, as has been said, these clauses could have a truly malevolent effect on our electoral system. There is an unpleasant whiff about them, and it could evolve into a foul stink. The positive case for these clauses has simply not been made, and I therefore support the removal of these clauses from the Bill.

[Lord Hayward (Con)]

My Lords, I am somewhat conflicted in this debate, to the extent that I, unlike a number of noble Lords who have spoken previously, do not view the Electoral Commission through rose-tinted spectacles. I shall refer to one or two problems that I and others have had with it recently. I have, however, had the opportunity to meet and deal with Mr John Pullinger, its new chairman; I wish him well and believe—partly because of what he has done in relation to some of the issues that I have had—that he will actually change the culture in the Electoral Commission.

I was fascinated by the contribution just now from the noble Baroness, Lady Wheatcroft. I must declare an interest, because the person to whom she and the noble Lord, Lord Rennard, referred is a close personal friend of mine, but I will not deal with the case as such. The noble Baroness aired the view that, although CCHQ had been found guilty of an offence, it was almost certain that the other parties did the same. That is actually the problem—

[Baroness Wheatcroft (CB)]

My Lords, I was not insinuating that other political parties had played fast and loose in that particular election. I merely meant that, had they felt able to in some elections, they might have done.

[Lord Hayward (Con)]

I am sorry; I did not make myself clear. I was referring not specifically to that election but to elections in general, which is what I took to be the comment of the noble Baroness.

I will first cover the Electoral Commission and then come on to this particular clause. As the noble Lord, Lord Scriven, said first and others have said later, the Electoral Commission is required to produce an independent, free and fair set of elections. It is not required to start intruding in terms of developing or interpreting legislation. I was brought up to believe that these two Houses and the judges—the judiciary —decided how our laws operated. But, unfortunately, the Electoral Commission has moved into that field. I say that with reference to the debate in this Chamber on 6 January on the progress of regulatory bodies into fields and issuing edicts that they are saying are law.

I refer here not to the case that I just raised but to the availability of electoral rolls. They are key if you are going to investigate corruption in Tower Hamlets, but access to them is being denied by the Electoral Commission. In an email, it said that, unfortunately, “the law is silent” on this matter. It then went on to develop policy on it, effectively saying that it is law. It has issued instructions to EROs on a certain basis.

Later in the Bill, I shall cover the fascinating development of the law of secrecy when it comes to a polling booth, a practice that we have had for 150 years. The Electoral Commission is now changing the processes—it is changing the law—which is why I have tabled an amendment to stop it doing what it appears to be doing.

The noble Lords, Lord Rennard, Lord Wallace and Lord Kennedy, are all aware of the difficulties that I have had with it since early August on accredited observers—people who can be allowed into a polling station. The Minister wanted to go into a polling station in a by-election in Tower Hamlets and was told that she could not because she was political. She, or her office, was making those arrangements with the chief executive of Tower Hamlets. Nothing in law says that an accredited observer cannot be a political individual. I would have been quite happy if the Labour or Lib Dem spokesmen in the Commons or the Lords had gone to witness the problems there, but, suddenly, the Electoral Commission said, “You cannot do that”. Nothing in law says that.

What makes it worse—this is where I disagree with the noble Lord, Lord Kerslake—is that the Electoral Commission does not admit its failings. As I say, I made correspondence available to other parties throughout, contemporaneously, and came to the conclusion that, in the way it has operated, the Electoral Commission is institutionally arrogant. It will not admit its failings, to the extent that, despite representations, detailed letters and failures to reply, when challenged about the refusal to allow the Minister into a polling station—it had been involved in conversations some 10 or 15 days before the by-election—it said immediately afterwards that it was not aware of a Minister being prevented from entering a polling station. This is despite the fact that, two and a half months later, it admitted that it had had conversations with the Cabinet Office and the Minister’s office, not to mention one with me in a polling station and with a local councillor, all of whom the Electoral Commission officials are saying it stopped, in one form or another.

What was fascinating was that, when confronted with all these different things, Electoral Commission kept saying, “We didn’t say it.” The Cabinet Office officials thought it did, as did the Ministers and the staff at Tower Hamlets. I believe it did. It is not a body which has previously been willing to admit its failures. As I say, it failed to do so when—

Elections Bill

Baroness Wheatcroft Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 28th March 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I congratulate the noble Lord, Lord Clement-Jones, on an extremely full exposition of his amendments, which makes me almost superfluous but I will add something anyway. The Minister is leaving, but I just say to him that the Government appear to want to get this excruciatingly poor Bill through before Prorogation. If they are going to do that, will they please accept some of the more sensible amendments so that the Bill contains some useful stuff that we can all use as politicians to make the whole process much fairer? The growing complexity of digital marketing makes online campaigning a major battleground for political dirty tricks; we all want to avoid that.

In 2019, political parties used data from Experian Marketing Services and Facebook to target specific campaign messages to individual voters. They also used Facebook services that allow advertisers to find customers similar to an existing group of customers. This allows targeting by age, location, interests, likes and a whole host of other personal data. The big risk of this, of course, is that political parties can promise anything to all people in a way that they could not before. We have politicians lying to our faces—the Prime Minister stands up and lies at the Dispatch Box. We all see him doing it; some of care and a lot of us do not. We can see it; it is happening. Now, however, there is an industry that would allow politicians to target their distortions of the truth on specific groups of people. The same candidate could target Brexit supporters with a pro-Brexit message, remain supporters with an anti-Brexit message and everyone else with a message saying that Brexit is a waste of time and we should all be getting on with more important things.

The threat to the integrity of our democracy is obvious; this is something we really do have to tackle. We need to move on with the times and be a bit more modern about accepting that we have a problem. There is a real risk that whichever party uses dodgy digital marketing in the most egregious and misleading ways will be most likely to win an election. We are at risk of a digital arms race in which truth and integrity are impediments to getting elected. I urge the Government to pick up at least some of these amendments, which would make our whole political system much clearer, cleaner and fairer.

[Baroness Wheatcroft (CB)]

My Lords, I support these amendments, so comprehensively introduced by the noble Lord, Lord Clement-Jones, in particular Amendment 194B. It is clearly right that overseas actors should be specifically banned from interfering in our political process and publishing propaganda online. It is relatively easy for them to do that.

Clause 39 imposes a duty on those publishing election-related material to make clear the source of that material. The noble Lord, Lord Clement-Jones, has made clear that this is a loophole big enough for most people to get through; it is simply not enough. It would be naive in the extreme to assume that those who wish to influence our elections are not wily enough to circumvent these sorts of stipulations, and neither are they likely to be put off doing so by the fact that they would be breaking British law, as Amendment 194B would insist.

The bots that churned out online propaganda ahead of the referendum amounted to interference in our electoral process on an industrial scale. We cannot say categorically whether they affected the result, but we know they tried. Yet the Government have neither investigated what happened nor done anything that we can see to prevent such online terrorism. As the noble Lord, Lord Clement-Jones, put it, “So far, so vague”.

As others have mentioned, the Russia report from the Intelligence and Security Committee was highly critical of the Government’s failure to examine what had happened and to take action, yet the Government continue to resist anything tangible. That is why a cross-party group of MPs and Peers, of which I am one, has filed a legal action to try to force our Government to investigate and protect the integrity of our electoral system. That action has today been filed with the European Court of Justice. It will, of course, take a while before it produces anything, and I hope that in the meantime the Government take action that would render such legal action—to prompt them into doing what they should do—unnecessary.

Does the Minister believe that Clause 39, even with this amendment, will prevent malign interference in the UK’s electoral process? Does he really believe that what is being done quietly is having any effect at all? Does he not think that the time has come, if the Government are taking real action, for us to be told about it and for the need for it to be enshrined in law?

[Lord Mann (Non-Afl)]

My Lords, I would have rather welcomed being targeted by a foreign Government in the various elections I stood in. It would have been relatively straightforward to have turned that around—I would have used more traditional methods of communication—and exposed it. But I am not quite sure how we would be able to take North Korea, Mr Putin or whoever through the courts in this country for any remedy or preventive action. Donations, of course, are an entirely separate issue, but these amendments are on electronic communications.

I listened to the noble Lord, Lord Clement-Jones, and I will respectfully give a different point of view on his Amendment 180A, which is very well intentioned but rather misses the point about transparency and where the digital age is going. The concept of putting in an imprint to demonstrate who has put a particular advert or piece of propaganda out there is very valid.

It is quite feasible that I will not be standing at the time of the next general election, unless some odd mayoralty is formed that I suddenly decide I should run for. I have had my day fighting elections. But if I was, I would think about how I could harness the latest technology so that people’s clothes would carry my name and slogan. Particularly at football matches, you regularly see straplines that change every few seconds; I would have them at strategic locations, firing out different messages. If others were doing so at prime locations and I had sufficiently robust funds to allow me to join in with using those advertising methodologies, I would certainly look to do that.

When it comes to proper transparency, it seems to me that the concept of, say, an agent having to have everything declared precisely on a website is far more useful for the efficacy of elections than anything that would anticipate that, for example, the latest high-tech jumper I am wearing, advertising a candidate, could somehow be spotted to have on it something that could then be used to hold me to account. It seems to me that some of the tried and tested methods could be more useful for the intention—here I agree with the noble Lord, Lord Clement-Jones—of ensuring that there is maximum transparency and legality in elections. I would be interested in the Minister’s views on whether this section of the Bill is sufficiently future-proofed for where technology will be next week, never mind next year.

Elections Bill

Baroness Wheatcroft Excerpts

Report stage
Monday 25th April 2022 Lords Chamber

[Lord True (Con)]

My Lords, I can only respond to the language I heard in the debate and, of course, that will lie in Hansard. Of course I listen to the range of concerns set out by your Lordships. The main concern that I hear, and understand, is about the potential impact on the independence of the Electoral Commission.

I stated in Committee, and I do so again now, that the Government’s proposals take a proportionate approach to reforming the accountability of the commission to Parliament, which some who have spoken have admitted could be reviewed, while respecting its operational independence. I agree with the noble and learned Lord, Lord Judge, and others that it is vital we have an independent regulator that commands trust across the political spectrum.

By the way, the noble Lord, Lord Stunell, asked would I worry if the Labour Party had such powers on the statute book. I remind your Lordships that the Labour Party is a great constitutional party, and I would trust it to use the responsibilities and powers that it had in an appropriate manner.

In previous debates, parliamentarians across both Houses identified areas of concern with the commission’s work. My noble friend Lord Hodgson of Astley Abbotts spoke to this. Under the existing accountability framework, in practice, parliamentarians are limited in their ability to scrutinise and hold the commission effectively accountable. The report by my noble friend Lord Pickles, whom I am pleased to see in his place, obviously alluded to certain issues that he felt had not been fully addressed. These measures will seek to remedy this by providing guidance, as approved by Parliament, for the commission to consider in the exercise of its functions, and by giving the Speaker’s Committee an enhanced role in holding the commission to account in how it has performed its duties in relation to the proposed statement.

It has been suggested, several times, that the “duty to have regard” to the strategy and policy statement placed on the commission in Clause 15 will weaken its independence and give Ministers the power to direct it. The Government strongly reject this characterisation of the measures. The Electoral Commission will remain operationally independent and governed by its Electoral Commissioners as a result of this measure, after as before. This duty does not allow the Government to direct the work of the commission, nor does it undermine the commission’s other statutory duties.

[Baroness Wheatcroft (CB)]

I wonder, given what the Minister has just said, whether he could explain the purpose of new Section 13ZA, on the examination of the duty to have regard to the strategy and policy statement, which states:

“The Speaker’s Committee may examine the performance by the Commission of the Commission’s duty under section 4B(2) (duty to have regard to strategy and policy statement).”


What is the purpose of having the ability to examine the commitment to the policy statement? What would the Government do if it found that “have regard” had not been sufficient?

[Lord True (Con)]

My Lords, I say to the noble Baroness that it is not a power to direct. The Speaker’s Committee is not a government institution; it is part of the architecture that is there, and has been there, to oversee the work of the commission. That was inherent in previous legislation; this legislation seeks to improve its ability to do so. What the legislation means is that when carrying out its functions, yes, the commission will be asked to consider the statement, but weigh it up against any other relative considerations.

The noble and learned Lord, Lord Judge, knows the respect I have for him. I have enjoyed discussing this matter with him and no doubt may again if he has his way in your Lordships’ House today, which I hope he will not, but our contention is that there are a number of safeguarding provisions around parliamentary approval and consultation built into Clause 15. I outlined that at length in previous debates and will not repeat it here. I believe, notwithstanding the noble and learned Lord’s remarks, that those safeguarding provisions should reassure those who have expressed concerns about strategy and policy statements being drafted by future Governments that may have ill intent.