Election Law Reform

Ian C. Lucas Excerpts

Monday 11th February 2019 Commons Chamber

[Craig Mackinlay]

My right hon. Friend highlights exactly what he might have expected, but I am afraid he will be disappointed, because that is it. There is not one additional word of guidance as to how this change of interpretation might be administered on the proper battleground of elections.

[Ian C. Lucas (Wrexham) (Lab)]

The hon. Gentleman is making an important and helpful speech. Was the issue of whether the money was national spend or local spend within a political party relevant to the finding he is describing? For example, some Conservative national spend for an individual constituency might not have been authorised by the agent. Was that the reason the decision was made in the way that it was?

[Craig Mackinlay]

The hon. Gentleman highlights the issue at stake, which is at the core of the Supreme Court judgment, but we are still left with this ambiguity as what others might do that the candidate might not know about. Matters of which the candidate has little to no knowledge, and activity that they certainly had not authorised, would have to be part of an election return.

[Ian C. Lucas]

I have great sympathy for the ordeal, as he described it, that the hon. Gentleman has gone through. We all have experience of elections and agents. The central point that he has indicated is really important: individual authorisation should be obtained from the individuals concerned. That requirement should be adhered to and, if that has not happened, that is deeply regrettable.

[Craig Mackinlay]

The hon. Gentleman makes reference to the full understanding of election law dating back to 1868 and in its various guises since. It is only now that the Supreme Court has overturned what we had all accepted as the normal happenings and procedures of election law for all these years. It has confounded many election specialists.

Let me pick up where I left off. As yet, the draft code has no statutory force. In just 51 days, we will be appointing candidates for local elections and in 80 days the local elections will be taking place throughout the country, possibly in just about every constituency. The Electoral Commission currently proposes to put thousands of local election candidates into battle with no clue as to what they should do to stay properly within the newly interpreted law.

--- Later in debate ---

[Alex Chalk (Cheltenham) (Con)]

I thank my hon. Friend the Member for South Thanet (Craig Mackinlay) not only for giving an excellent speech, but for making such an important contribution to this critical field. People watching this from the Public Gallery, or perhaps reading the debate later, may be surprised to learn that these issues are of such seriousness that if candidates or their agents get them wrong, there is a decent possibility that the matter will be resolved with an individual standing up in court, potentially at risk of losing his liberty, his reputation and, indeed, his livelihood. If that is the consequence, it is critical that the legal landscape is clear, and I am afraid that I respectfully agree that it is not clear.

Let me give the House just one small example of how we find ourselves in a situation where people’s campaigning activity might owe more to their appetite for risk than to the correct campaigning message. In 2017 in Cheltenham, one of the issues was whether I should be putting out a leaflet that mentioned Cheltenham repeatedly throughout. Under one view, if it was simply a national message that would apply to Cheltenham, it could be national expenditure. But under another view, it could be allocated as local expenditure. People watching this should understand that if someone gets that judgment wrong, they could end up being prosecuted for breaking their limit.

I thought that there was a risk involved in allocating that as a national spend so I declined to do so, but others took an entirely different view, mentioned Cheltenham a lot and simply allocated the spending as a national spend. It turns out, however, that the Electoral Commission has decided after the event—through these provisional codes of conduct—that circumstances where the constituency is mentioned should be classed as a local expense. Well, if that is right, the implications are absolutely enormous.

My hon. Friend has already delivered a devastating critique of the Electoral Commission, but one of my criticisms is that it is so slow to act. It knew about this situation in 2015, and yet two years later, when it came to the 2017 election, had it sorted the situation out? No. Had it provided any guidance? No. Candidates like me were simply left to fend for ourselves and make a judgment based on our appetite for risk. I had zero appetite for risk, so I took a cautious approach; others did not, and the net effect was that there was not a level playing field. If the Electoral Commission is not there to ensure a level playing field, what on earth is it there to do?

[Ian C. Lucas]

The hon. Gentleman is making a very important point. I am a member of the Select Committee on Digital, Culture, Media and Sport, and I am particularly interested in this debate because of the inquiry that we have been carrying out into fake news. One issue that is crucial in all this, but that we have not really discussed today, is the advent of social media campaigning. If we are talking about not being up to speed, I have been on a huge learning journey on the Committee since I was re-elected in 2017. Frankly, I am sure that most of the Members of the House will not be aware of the scale of change that has happened in this area in recent years. The issue regarding local and national spend that the hon. Gentleman mentioned is just one of those changes. We need urgently to reform the law to take account of what actually happens in campaigns today.

[Alex Chalk]

The hon. Gentleman makes a good and fair point, but I would say that the law will inevitably struggle to keep up with every last twist and turn. That is one of the reasons that we need to have an Electoral Commission that is agile and nimble, and can provide assistance to candidates. My first criticism of the Electoral Commission is that it has singularly failed to show that agility and nimbleness. That is not simply an academic criticism; it is echoed in how elections are run, and it means that we do not have a level playing field.