Elections Bill

Report (2nd Day)

Relevant documents: 13th Report from the Constitution Cttee, 5th Report from the Joint Committee on Human Rights, 21st and 27th Reports from the Delegated Powers Committee.

Clause 15: Strategy and policy statement

Amendment 45

45: Clause 15, leave out Clause 15

My Lords—oh dear, I am sorry your Lordships are all departing. Maybe the Conservatives who are departing do not want to hear what I have to say.

No, no, we are here.

It is a very strange thing but, quite by accident—I promise it is by accident—I happen to have my copy of the Bill open at a part I have not really studied, called “Undue Influence”. Suddenly I find myself thinking, “What a very good thing to prevent that happening in this Bill.”

I have addressed your Lordships on a number of occasions about the Bill, particularly these clauses, including Clause 15, which we are discussing now. Noble Lords have listened with patience and courtesy and I have listened to the Minister with great patience. I regret that I am unconvinced by what he has said in the House so I intend to seek the opinion of the House at the end of this debate, but I intend to be brief.

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. If anyone disagrees with that, would they please say so? Any possibility that the party in government may have influence over the electoral process should be rejected.

Clauses 15 and 16 are repugnant to that foundational principle. They require the commission to have regard, 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 importance of this feature of the language, which is tucked away but needs emphasis, is that the Electoral Commission will exercise its responsibilities in relation to the strategy and policy statement to enable Her Majesty’s Government to meet those priorities. If we rephrase that, it says that the Electoral Commission must enable the strategic and policy priorities of the Government to be met. That does not sound like independence. These are directive provisions. The word “duty” is used, imposing unequivocal statutory obligations on the commission that will govern—or, if not govern, will certainly influence —its own performance of its responsibility, and perhaps, dare I say it, is meant to influence it.

The commission, which everyone agrees—so far, at any rate—should be independent of government, is to be subject to a statutory duty to enable the Government to achieve their priorities: that is to say, their priorities, strategies and guidance to the extent that they relate to the electoral system. That is what the Bill says. This proposal came out of the blue without reference, consultation or, astonishingly—to me, at any rate, as someone who does not have a political background—for a proposal that has a constitutional impact, without cross-party discussion of any kind.

What protections are we being offered? Before the Secretary of State produces the statement with his priorities and strategies, he must consult—not have anyone’s agreement or consent, but consult. He must consult the Electoral Commission. Fine, but the Electoral Commission can give us some evidence of how the consultation process is likely to be treated. It made a submission proposing that these clauses should not be applied. Okay, one might say that the Electoral Commission is biased, but I have seen nothing to suggest that the Secretary of State took any notice whatever of what it said.

The second group to be consulted is the Speaker’s Committee, a body which includes two government Ministers. I know that there are other members, including Back-Benchers; there are a total of nine members, but two are government Ministers. That is described in a system I come from as someone being a judge in his own cause. More important, perhaps, is that the power of checking whether the Electoral Commission has followed the guidance and strategy, and so on, is vested in the Speaker’s Committee. In other words, the judgment on the Electoral Commission is being made by a body which includes two government Ministers.

The third group to be addressed was the Public Administration and Constitutional Affairs Committee, or PACAC, a cross-party committee of the House. The consultation process has now been changed; I understand that the removal followed a recent machinery of government change, and it is now the Levelling Up, Housing and Communities Committee. However, when this Bill was first promulgated, PACAC was the consultee. I shall return to PACAC in a moment, but it responded in the most unequivocal language after a close analysis of the whole of these provisions by suggesting that they should not be included in the Bill. For this purpose, I shall come back to it. Is there any evidence to suggest that the Government took the slightest bit of notice of that recommendation by a unanimous, cross-party House of Commons committee? Not that I have seen or that has been drawn to my attention.

What is this protective system? It is a consultation process, but there is nothing in statute requiring the Secretary of State to pay attention. No doubt they will be read; no doubt somebody will read them to the Minister and he will discuss them, but there is absolutely nothing in the Bill which says that the Minister must attend to the committee and that it should at least have some power to say that this is wrong. As it is, we end up with a situation in which the protection system is simply this: the Secretary of State asks these three bodies, they tell him what they like and then he does what he thinks. That is the full extent —apart from, ultimately, the provision coming to Parliament—of the protection given against what looks like, as I have submitted to your Lordships, something completely repugnant to the independence of the Electoral Commission.

It gets worse. There is a review provision, not dealing with typos and so on, but there the consultation process is reduced to one body. I do not think that three are very impressive but three are more important than one, and exactly the same position applies. Ultimately this has to be seen as the most important concern. A quinquennial review is required. In fact, a review can take place at any time: after an election or after a new Government have been put in power. Whenever it takes place, the powers that are currently being invested in the Secretary of State with this Government will be invested—and one day it will happen—in the Secretary of State chosen by a Labour Government.

What will the consequence of that be? Naturally enough, the Secretary of State will look at the way the powers have been exercised by the party formerly in power. He or she will decide that that is not agreeable, or appropriate, or has not worked. Suddenly, we will have a new system—a new statement—with new strategies, priorities and guidance being issued by the new Government to the same Electoral Commission. I do not know; it is a very strange independent body that can be tossed around like a football. That is what it comes to.

I come back to PACAC, because PACAC, having ceased to be a consultee under this process, nevertheless wrote to the Secretary of State for Levelling Up, urging the Government to accept this amendment, as it had recommended in the first place. A few words from that report sum up everything that I want to say today. It rejects the purported government explanation to justify these clauses. It said it was “extremely concerned” about the potential impact of these provisions, and concluded:

“The risk inherent in these provisions is evident for all to see. This is an unacceptable risk to the functioning of our democracy”.