My Lords, I see that there is a large number of speakers down today. That is a testament to the importance of the subject matter underpinning this Bill. Without any offence to anyone, I particularly look forward of course to hearing the maiden speech of the noble Lord, Lord Moore of Etchingham.
The Government committed in their manifesto to secure the integrity of elections, restore constitutional balance and defend our democracy against increasingly sophisticated threats. I am therefore pleased to come before your Lordships for the Second Reading of this necessary Bill, which is a key part of that work.
We have a remarkable democratic heritage, because it has evolved and adapted with time, and overcome new threats and challenges. But it does not do that entirely naturally; it is down to the stewards of that system to actively preserve it—and, at this time, that includes your Lordships. That is why the Bill is necessary, and it is not without careful consideration that we take these steps. The Bill is the product of a number of reviews and reports, and fulfils a number of long-standing commitments.
Part 1 focuses on the administration of our elections—specifically, and most critically, on the principle that all those who are able to vote can do so easily and with confidence in the integrity of their ballot. In the Commons, we heard many times from the Opposition that this is a non-issue and that fraud within our system is not a problem. I am sure we will have the opportunity to discuss that in Committee, but we on this side must respectfully disagree.
Part 1 of the Bill therefore introduces what many consider to be an obvious requirement: the requirement to prove that you are who you say you are before you cast your vote. Everyone is challenged now as to their identity before they vote. Showing photo identification is a reasonable and proportionate way of proving your identity. It is something that we are often required to do in everyday life. Many people would question why it is not already the case; in fact, a recent Electoral Commission report was clear that the majority of the public say that a requirement to show identification at polling stations would make them more confident in the security of the voting system.
Not everyone has a passport or a driving licence, as I have seen inferred in some reporting of the provisions, so I want to underscore at the outset today that it is not just those forms of identification. Set out in the Bill is a broad range of identification that will be accepted. The Bill also makes provision for free voter cards to be produced and made available by local authorities to those electors who require them.
Noble Lords are rightly keen to understand the detail of the secondary legislation in this area and how the card will be administered. I bring to noble Lords’ attention the policy statement published in January by the Minister of State at the Department for Levelling Up, Housing and Communities, which sets out how the new requirements will work, including the application and rollout process that we envisage for the voter card. These proposals have been tried and tested, and not just via the pilots that we ran in 2018 and 2019.
—to the tried and tested simple majority voting system, also known as first past the post. I knew there would be a great deal of interest in those provisions on the Liberal Democrat Benches. In the 2011 nationwide referendum— I hesitate to remind them—two-thirds of voters voted in favour of retaining first past the post for parliamentary elections. It is therefore only right that we are consistent in our approach to voting systems and reflect the view of the British people in these important elections. The change to first past the post will provide clear local accountability in a readily understandable way: the person chosen to represent a local area will be the one who directly receives the most votes.
Finally, in Part 1, we are ensuring that in choosing to cast their ballot in the polling station, those who require additional support to navigate that system can receive it. How that support is provided, and for whom, is important. This, again, is a matter which I know we will discuss in some detail.
One size does not fit all, and often serves only to narrow the scope and responsiveness of the system. That is why the Bill is introducing key changes from our call for evidence on access to elections. It will require returning officers to respond to local need and provide each polling station with equipment as is reasonable to support voters with a range of disabilities. We are also extending the definition of who can act as companion to anyone who is aged 18 or over, so as not to limit those people who may require assistance in voting.
Part 2 of the Bill pertains to the franchise. The Government’s manifesto included a commitment to
“make it easier for British expats to vote in Parliamentary elections, and get rid of the arbitrary 15-year limit on their voting rights.”
The Bill will fulfil this commitment. The existing time limit is anachronistic in an increasingly interconnected world. Most British expatriates retain deep ties to the United Kingdom. The Bill will therefore extend the franchise to all British citizens who have been previously registered or resident in the United Kingdom. In addition to that, the changes will facilitate participation by making it easier for overseas electors to remain on the register, with an absentee vote arrangement in place ahead of elections. This will also benefit those who administer elections.
My Lords, we have heard from the Minister that the Bill intends to make substantial changes to our electoral law. Despite its stated ambitions, however, it does not tackle the fundamental and widely recognised need to consolidate the voluminous and fragmented body of existing law. In fact, it will do the opposite. Together with the secondary legislation needed for implementation, it substantially increases the complexity of our electoral law and brings in numerous measures about which we have serious concerns.
Having said that, I will start with some positives. It is important that the Bill looks to tackle intimidation, and we support the proposals to extend the imprint rules to digital communications and materials. The Electoral Commission has been calling for this for many years and it is a welcome step to bring our democracy into the 21st century.
On the subject of welcomes, I very much welcome the noble Lord, Lord Moore of Etchingham, to our House, and I am very much looking forward to hearing his maiden speech.
I will now raise our concerns about the lack of consultation and scrutiny received by many of the Bill’s proposals. The Public Administration and Constitutional Affairs Committee agrees and stated in its report that the Bill
“received insufficient public consultation prior to introduction.”
It further added that it
“should have gone through a pre-legislative scrutiny process, with a draft Bill being scrutinised by a Joint Committee. Given the lack of pre-legislative scrutiny and the significance of the measures contained in the Bill, the Government should place a statutory commitment to undertake post-legislative scrutiny on the face of the Bill.”
In short, the whole thing seems to have been constructed based on not much evidence at all.
My Lords, it is a very personal pleasure to welcome the noble Lord, Lord Moore, and say that I look forward to his maiden speech. When I was a student, the first by-election I worked in was the Cambridgeshire by-election of 1961 in which his father was a candidate. His father, as some Members of this House may already know, was a wonderful and inspiring speaker and would have been an adornment to this House. We hope very much that his son has inherited much of his fluency as a speaker and look forward to hearing more from him.
This Bill should never have reached Parliament in its current badly drafted and highly partisan form. The Ministers who presented it have made no attempt to build consensus on rules that are at the core of democracy. They have largely ignored four authoritative reports: first, the Law Commission report on the simplification of electoral law, published in March 2020; secondly, the Committee on Standards in Public Life—CSPL—review, Regulating Election Finance, published in July last year; thirdly, the Commons Public Administration and Constitutional Affairs Committee—PACAC—report on the Bill itself, published in December; and fourthly, the Intelligence and Security Committee—ISC—Russia report of 2018, which covered issues that this Bill addresses, making recommendations that the Government have also ignored. The Law Commission proposed to simplify and clarify the layers of legislation on electoral regulation. To the contrary, this 171-page Bill adds further layers of complexity. It is a major lost opportunity, as PACAC comments.
Part 4 of the Bill takes almost no account of the 47 recommendations for tightening controls on election donations and spending in the CSPL report. A Cabinet Office Minister told the Commons that there was insufficient time to include any of these in the current Bill. The Government nevertheless found time to introduce over 100 of their own amendments as the Bill as it moved through the Commons—strong evidence that the Bill had been insufficiently thought through beforehand. They even introduced a late amendment to narrow the voting system for mayors, without any prior notice to other parties. The Minister’s introduction suggested that the Government intend to return all elections to what he regards as the tried and tested first past the post system. I assume he is aware that the devolved nations use and prefer different systems.
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Lord Judge (CB)
My Lords, I shall concentrate on Part 3, for today’s purposes at any rate, and will to some extent repeat what the noble Baroness, Lady Hayman of Ullock, had to say. Surely we all understand that there is a constitutional necessity, in a system of democracy based on universal suffrage, that any electoral commission should be wholly and totally independent.
Noble Lords
Hear, hear.
Lord Judge (CB)
I imagine that I heard “Hear, hears” on the government side of the House, as I did among the Cross Benches, so I repeat: surely we understand the constitutional necessity, in a democracy based on universal suffrage, that there should be an independent Electoral Commission.
Noble Lords
Hear, hear!
Lord Judge (CB)
What do I mean by “independent”? Independent of all political parties—that is easy, but there is a further step. The commission must be independent of all direct or indirect political influence, which is rather different, and vested with the responsibility on behalf of the electorate—the entire electorate, whoever they vote for or whether they do not vote at all—first to diminish to extinction the possibility that the party in government would have any sort of undue influence over the election. I should not have used “undue”; there can be no such thing as any influence, however slight, that is not undue. The second consideration is that the electorate must be satisfied that the system protects the independence of the Electoral Commission. It is not just a matter of what the law is—although, as I say, I shall endeavour to explain why in this Bill the law does not protect that—it is about the perception that it is independent. We should look at what is proposed here.
“The Secretary of State may designate”—
so that is the power—
“a statement for the purposes of”
the Act. What is the statement?
“The statement is a statement prepared by the Secretary of State that sets out”—
and I shall go slowly through these words even though I have only six minutes—
“strategic and policy priorities of Her Majesty’s government relating to elections”.
Could the Bill not at least have had the courtesy to say “the strategic and policy priorities of Her Majesty’s Parliament”? New paragraph (b) provides for the statement to set out
“the role … of the Commission in enabling Her Majesty’s government to meet”
their own priorities. New subsection (3) says:
“The statement may also set out … guidance relating to particular matters in respect of which the Commission have functions”.
I will pause there. That is its duty, and it will be subject to reference to the Speaker’s Committee. No disrespect to the Speaker’s Committee, but what is its function? Its function is to see that the Electoral Commission has carried out its own statutory obligations.
What is chilling about the present proposal is that there is no room for the Electoral Commission to say, “We don’t agree with that. That has a huge political advantage for the Government in power.” It might even want to say, “That has a huge advantage for the Opposition”, but it has no discretion of any kind to say, “We disagree with the directives given to us in the guidance or this statement of policy priorities.” It cannot do that; nor can the Speaker’s Committee. The committee does not have the power to do so; it is simply there to make sure that the Electoral Commission does what the Secretary of State has ordered it to do. It is simple enough to read the statute, and I venture to suggest that this is what it says. It is no answer to say that the commission must have regard to the statement when carrying out its functions, as though that imposes a limitation. What it is imposing is an obligation—“must have regard to”. Is that really what we want? We need to think rather carefully about what Part 3 provides for.
My Lords, I must thank the noble Lord, Lord Wallace of Saltaire, for his particularly generous remarks about my late father. I was very touched by them, and I will return to them because they are relevant to the theme of my speech today.
I must first apologise to this House for my delay in making this speech. I have spent my life as a newspaper editor, journalist and writer and we of course live by deadlines, but there is no deadline for making a maiden speech so I have procrastinated. But I hope I have some excuse. I was introduced when Covid-19 was going strong, and I found it difficult to acquaint myself with your Lordships’ House in hybrid form. A Parliament means a place where people speak, but the pandemic muffled normal speech. Many of your Lordships could not attend in person; many members of staff were working from home. I thank them all warmly for their kind efforts on my behalf, and it was not their fault that I was uncertain what I should be doing. Today it is an honour—and I must say a relief —to be addressing a fully functioning House at last.
I come from the county of Sussex. Nowadays Sussex is regarded as rich, but our eastern part of the county has traditionally been poor. A few years ago, the Tatlermagazine published a satirical illustrated map of Sussex; our little rural patch was marked by a large cactus and the words “Social Desert”. We felt perversely proud of that. Even today, my birthplace, Hastings, is well known for areas of persistent poverty. Robert Tressell’s famous Edwardian socialist novel about poverty, The RaggedTrousered Philanthropists, is set in Hastings. It is subtitled “A season in Hell”. I maintain that modern Hastings has many glimpses of heaven, but problems do remain.
Hastings helps explain my interest in the Bill that we are debating today. In 1844, my great-great-grandfather, Robert Ross Rowan Moore, stood there as the free trade, anti-Corn Law candidate. In those days, the fishermen of Hastings did not have the vote, but they did support free trade. By law, no candidate could be elected unless present in the constituency on polling day, so the fishermen kindly proposed to kidnap my ancestor’s rival, the Tory candidate, and take him out to sea. Sadly, Robert Moore refused the fishermen’s offer and therefore lost the election, but my family still possesses a roll which names the
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Voter ID is used across the world, including in most European countries and in Canada. Indeed, it is not even a new concept in the United Kingdom, having been in place in Northern Ireland since 2003, when it was introduced by the then Labour Government. We therefore have an empirical example of how the rollout of such a measure can work. In fact, we know that not only has it been operating with ease for decades, it has been successful in upholding the integrity of elections.
Many across this House and the other place—again, this is an area that I expect to engage with in Committee—also have concerns about the integrity of absent voting methods. That is why the Elections Bill will also introduce measures to combat electoral fraud, and to ensure the integrity of the ballot in other ways. Voting by post and voting by proxy are essential tools for supporting voters in exercising their rights. They must remain available options for voters who may not wish to, or cannot, vote at a polling station.
It is not currently possible for electors to register for an absent vote online; those who wish to apply must do so via a paper form that is then posted to their local electoral registration officer. This is surely out of step with the process of registering to vote generally, which can be done online using the Register to Vote digital service for ease and convenience. The Bill therefore provides for an online service through which applications for an absent vote can be made. Identity verification for absent vote applications will be applied to paper applications as well as to applications made online. This will ensure that those applications are legitimate and the absent vote application process more secure, resilient and efficient for both electors and electoral administrators.
In addition, the Bill introduces further reasonable safeguards against the abuse of postal and proxy voting that will not complicate or hinder the process. They include new limits on the number of postal votes that may be handed in by any one individual, and provisions making it an offence for political campaigners to handle postal votes issued to others, unless they are family members or carers of the voter.
Of course, stealing someone’s vote is not always personation or taking someone’s postal ballot. There are also those who wish to intimidate or pressure people to cast their vote in a certain way, or not vote at all—something that is surely wholly unacceptable in any community in this country, in any part of this country, in the 21st century. The existing legislation on this, known as “undue influence”, which originated in the 19th century, is difficult to interpret and enforce. Through the Bill we will provide greater clarity to the police and to prosecutors, making sure that there can be no doubt that it is an offence to intimidate or cause harm to electors in order to influence their vote.
Part 1 also delivers the manifesto commitment of continuing our support of the first past the post voting system, and changes the voting system for police and crime commissioners, combined authority mayors and the Mayor of London from the confusing and overcomplicated supplementary vote system—
Also relating to the franchise, Part 2 updates the voting and candidacy rights of EU citizens who reside in the United Kingdom, moving to a more reciprocal model fitting of an independent sovereign state. We stand by our commitments to those EU citizens resident here before our exit from the European Union. EU citizens who have been living in the United Kingdom since before the end of the implementation period on 31 December 2020 will retain their local voting and candidacy rights, provided they retain lawful immigration status. This goes well beyond our obligations under the withdrawal agreement and gives the lie to those who claimed that leaving the European Union was an act of xenophobia. For EU citizens who have moved to the United Kingdom following EU exit, local voting and candidacy rights will be granted on the basis of bilateral agreements with individual EU member states, which will reciprocate arrangements for British citizens living there too.
The third part of the Bill relates to the Electoral Commission, including reforming the accountability of the commission to the UK Parliament while respecting its operational independence. It was my noble friend Lord Pickles who found in his review on electoral fraud:
“The current system of oversight of the Electoral Commission—by the Speaker’s Committee on the Electoral Commission—does not provide an effective third-party check on its performance.”
The review was clear that the Electoral Commission needed to change. Part 3 of the Bill therefore introduces a strategy and policy statement, which will set out guidance and principles that the commission must have regard to in the discharge of its functions.
I have read the Electoral Commission’s letter published on 21 February, and I cannot agree with the characterisation of these measures. The Electoral Commission will remain accountable to the UK Parliament and governed by their Electoral Commissioners. This Bill will not change that. The provisions of the Bill do not allow the Government of the day to direct the commission’s decision-making, nor will it replace or undermine the commission’s other statutory duties. This statement will be reviewed regularly and will be subject to parliamentary approval and, in applicable circumstances, statutory consultation. The UK Parliament will be able to reject in full any draft statement that it disagrees with.
The Bill also expands the remit of the Speaker’s Committee on the Electoral Commission and empowers it to scrutinise the Electoral Commission’s compliance with its duty to have regard to the strategy and policy statement. Through this, Parliament will be able to better scrutinise the work of the commission and together, these reforms will facilitate parliamentary scrutiny of the Electoral Commission’s work, while respecting its operational independence.
Part 3 also clarifies that the Electoral Commission may not bring criminal prosecutions, as prosecutions for electoral law should remain with the existing prosecution authorities. Our view is that the proper place for criminal investigations and prosecutions lies with the experts in this domain, namely the police and prosecution authorities. We must not forget that the commission has never brought a criminal prosecution to date, and this provision merely maintains that status quo in practice. This means that our measure will not add any additional burden on prosecution authorities or lead to fewer prosecutions.
On Part 4, we already have a comprehensive regulatory framework for electoral campaigning, which is rooted in the principles of fairness, transparency and the importance of a level playing field. We must ensure that our electoral law continues to uphold these principles. These measures take a proportionate and sensible approach to ensure that those campaigning at elections and seeking to influence voters are subject to transparency requirements and rules that effectively maintain that level playing field. By restricting all third-party campaigning above £700 at elections to UK-based or otherwise eligible campaigners, the Bill also removes the opportunity for ineligible foreign spending at UK elections.
There has been some suggestion that the Bill introduces a loophole to allow foreign donations to UK political parties. Again, I am sure that will be discussed. But I can assure this House that the Bill does no such thing. The measures in this Bill, together with existing controls on who can make political donations, provide a robust and transparent framework to ensure that only those with a legitimate interest in UK elections can spend money on campaigning or make political donations. Donations can only come from permissible donors who have a genuine interest in UK electoral events, such as UK-based or registered electors, UK-registered companies, trade unions or other UK-based entities.
The principle of transparency for the electorate is vital, but third-party campaigners subject to the new lower tier registration threshold will be subject to lighter touch regulation proportionate to smaller campaign spend. In a similar vein, the joint campaigning measures are simply intended to strengthen the principle of spending limits already in law that protect the integrity of the level playing field by ensuring that political parties cannot use campaign groups to unfairly exploit loopholes enabling them to expand their spending limit potential.
I wish to make it clear that our proposals on joint campaigning will capture the regulated election spending of political parties and third-party campaigners working together as part of a common plan, where the various groups are for all intents and purposes operating as a single group. They do not include political parties and third-party campaigners who are simply spending on the same issue or spending on campaigns that are not regulated by electoral law.
I am sure that many in this House will welcome the clarification of the law on notional expenditure included in the Bill that candidates and agents should only be liable for benefits in kind they have actually used, or which they or their election agent have directed, authorised or encouraged someone else to use on their behalf. This will ensure that candidates and their agents can continue to conduct full campaigns without the fear, as found by PACAC in its 2019 review into electoral law,
“of falling foul of the law through no fault of their own.”
Part 5 of the Bill introduces a new offence aimed at helping to protect candidates and others from intimidation. Without a broad range of candidates for voters to choose from, we would diminish representation in this country and stifle discourse. To harass someone or to commit an assault are of course criminal offences already, but this Bill takes it a step further, and ensures that a person who has been convicted of an offence of an intimidatory nature can be banned and stripped of the privilege of standing for public office themselves for a period of five years.
Finally, Part 6 of the Bill delivers on recommendations made by Select Committees and the Electoral Commission to improve public trust and confidence in digital political campaigns. These are very important provisions. They introduce a new digital imprints regime which will be one of the most comprehensive in the world, increasing transparency and empowering voters to make informed decisions about the material they see online.
Before closing, I turn to the legislative consent Motions relating to the Bill. We worked closely with the devolved Administrations in preparing the policies for drafting into legislation. In order to deliver the benefits of coherence and consistency across some of the measures in the Bill, for both reserved and devolved polls, we sought legislative consent from the Scottish and Welsh Governments. Respecting the subsequent request from the Scottish and Welsh Governments to remove all aspects which relate to devolved matters, we are preparing the necessary amendments and will bring these changes forward in Committee. I welcome the indication which both Governments have given that they will consider legislating comparably across a number of areas.
At the beginning of my speech I emphasised that we have a strong history of democratic excellence and a shared devotion to democracy that brings together people on all sides of this House, and that we have a duty to regularly take stock and make the necessary changes that make it fit for the modern age. The sensible and considered measures I laid out here today will continue this legacy and raise confidence even further in our elections.
I assure noble Lords that I will listen extremely carefully, as ever, to all contributions made today and that I look forward to engaging with noble Lords as the Bill goes forward. I commend this Bill to the House.
A more cynical mind might suggest that it is an example of Ministers choosing not to consult because they knew it would be a bruising experience that would not support their proposals. So I ask the Minister why the Government have not consulted on these provisions and whether he can assure your Lordships’ House that
“a statutory commitment to undertake post-legislative scrutiny”
will be
“on the face of the Bill.”
Clause 1 introduces voter ID at polling stations to address the electoral offence of “personation”. However, personation is exceedingly rare in British elections, with just two convictions between 2010 and 2018. The Government have tried to justify their proposals through a precautionary principle: that it might be happening more. While there is nothing inherently wrong with taking a precautionary step, this seems a remarkable basis on which to introduce a policy that seems certain to deny many more legitimate votes than it will prevent illegitimate ones.
The issue of electoral fraud in Tower Hamlets is where this policy has come from, but the problem there related not to personation but to public funds, intimidation and the misuse of postal votes. The judge in the Tower Hamlets case, Richard Mawrey QC, told the Bill Committee in the other place:
“Voter ID at polling stations, frankly, is neither here nor there. Personation at polling stations is very rare indeed”.—[Official Report, Commons, Elections Bill Committee, 15/9/21; col. 15.]
The evidence to support the introduction of voter ID simply does not exist. So why is there such a focus on polling station personation while offences committed via postal voting, where there is far more evidence of electoral fraud, are ignored?
Government data looks at how groups of the electorate will be affected by the introduction of voter ID, but it does not explore whether income level indicates whether someone will already have photo ID. The Joseph Rowntree Foundation has considered the impact of voter ID on low-income potential voters. Its research shows that they are less likely to have photo ID than wealthier potential voters. It suggests that 1 million people will therefore be less likely to vote under the new legislation.
The Government’s own statistics show that 3.5 million people do not have access to valid photo ID. The reality is that these requirements discriminate against some groups more than others. As well as those on lower incomes, concerns have been raised that those who are disabled, older, younger or from ethnic minorities risk being disenfranchised. When voter ID was introduced in Northern Ireland, the turnout at the 2004 Assembly elections dropped by 2.3% as a direct consequence.
The proposals in the Bill expect people without the required ID to get a free voter ID card. Those without such ID are more likely to be excluded from society or disadvantaged, but the Bill contains no detail as to how these cards will be issued and administered, with significant details about the voter card application process left for secondary legislation. So how can the Government guarantee that no one will be disenfranchised?
Can the Minister justify the financial cost of introducing voter ID? The impact assessment suggests that it could be up to £180 million over the next decade. Between the lack of convictions for voter fraud, the lack of allegations and the lack of concern among the electorate, why are the Government proposing to spend up to £180 million to make it harder for some people to vote?
The Electoral Commission has said that the Government should do more to modernise electoral registration to ensure that as many people as possible are correctly registered. It has found considerable potential to evolve the current system to make it more joined up with other public services, and to explore automatic or more automated forms of registration. If we wish to strengthen our democracy, as we should, one of the best ways would be to drive up registration and turnout —so it is disappointing that Ministers have missed the opportunity to encourage participation in elections and do exactly that.
I want now to draw attention to the unique challenges that some disabled people experience when voting. While we welcome the Bill’s stated ambition to make voting more accessible, the RNIB has expressed serious concerns that the current wording inadvertently reduces the legal protections for blind and partially sighted people. Will the Minister proactively work with the RNIB and other interested parties to address their concerns and bring in amendments so that no one is disfranchised because of a disability?
On the proposals on overseas electors, we have concerns that the motivation behind the change to remove the 15-year limit is about creating a loophole in donation law, allowing wealthy donors unlimited access to our democracy through unprecedentedly large donations, so I strongly disagree with the Minister’s interpretation of this part of the Bill. Foreign donors should not be allowed to financially influence our democratic processes. Considering recent developments in Ukraine, the Government must be alert to how Russia and others could use illicit finance to influence our political system. Yesterday, my noble friend Lady Smith of Basildon asked the Leader of the House to commit to speaking to the Prime Minister and the Cabinet about removing these provisions from the Bill. I give notice to the Minister that, if this does not happen, we will bring in amendments to remove these loopholes.
At the same time as increasing the number of overseas electors that can register to vote, the Bill removes the right to vote from certain electors who are resident in the UK, such as some EU nationals. Again, on this issue there is nothing in the Bill that helps to solve an existing problem. A regular complaint from overseas electors is that they do not get their ballot papers in good time to return them to the UK for their votes to actually count. Nothing in the Bill explores using modern technology to speed up this process.
I turn to changes to the regulation of the Electoral Commission. We are very concerned about the intention to make provisions for a power to designate a strategy and policy statement for the commission which will be drafted by the Government. This would seem to be political interference in the regulation of our elections, as the Bill gives the Secretary of State powers to direct the Electoral Commission and require it to follow instructions from the UK Government as to its activities and priorities. This calls into question the commission’s independence from political control by the Government. We are in no doubt that this is a dangerous precedent. When we look to similar democracies, such as Canada, New Zealand and Australia, we see a complete separation between Governments and their electoral commissions.
The Government justify this change by saying that Ministers give guidance to other regulators, but these regulators are not responsible for ensuring that candidates, Ministers and political parties stick to the rules. It is essential that our regulatory framework strikes the right balance between upholding the independence of the Electoral Commission and ensuring that it is properly scrutinised and held to account. The Public Administration and Constitutional Affairs Committee is so concerned about the implications of the Bill on this front that it has recommended that the relevant clauses be removed pending a formal consultation on the proposals.
Part 4 of the Bill amends some of the existing rules that provide transparency and place limits on election campaign spending and funding, with proposals to change the rules on non-party campaigning. This will undermine the ability of civil society organisations, charities and trade unions to engage and campaign in our democracy. It must be seen in conjunction with the proposed extension of joint campaigning rules to include political parties. Plus, the effect of Clauses 24 and 25 together would be to allow the Secretary of State, by statutory instrument, to add, remove or define permitted participants in election campaigning, and therefore to effectively restrict categories of organisation from spending more than £700 on such campaigning in the 12 months leading up to a general election.
In a free and open democracy, elected Governments are scrutinised by opposition parties and civil society. That is part of what makes our democracy healthy. The freedom for civil society to do this and to hold those in power to account is a sign of a strong democracy. This Bill is an attack on some parties more than others. I would say that the attack on the trade unions, and the 6 million people who are members of trade unions, is an attack on all working people’s rights to campaign for fair pay at work and health and safety in the workplace. It is also an attack on the very people who have brought our country through the pandemic. Trade unions are already incredibly heavily regulated and charities will feel stifled and gagged by the legislation before us.
Finally, on the introduction of a majority system for certain elections, we question why that change is needed. The Public Administration and Constitutional Affairs Committee is also correct on this that, regardless of arguments over the benefits or disadvantages of the changes made by the Bill to the electoral system of those offices, the way the proposed legislative change was brought in is unsatisfactory. Making changes such as this after the Bill has been introduced and debated at Second Reading in the other place is disrespectful.
In conclusion, this Bill creates more problems than it solves and is not proportionate. It is a waste of taxpayers’ money that reverses decades of democratic process and needs to be completely overhauled.
The PACAC Committee Report is the most damning. It highlights
“potential gaps in the evidence base for the proposed measures”
and states that many witnesses considered that the Government did
“‘not have the evidence to understand the impact of their proposals’”.
It notes that the Elections Bill “does not adopt any” of the recommendations of the Law Commission’s 2020 report and says:
“Given the constitutional significance of the proposed changes to voting and the accountability mechanisms of the regulator of elections, the Committee is disappointed that a Joint Committee was not appointed to scrutinise this Bill in draft, to help ensure the legislation is fit for purpose.”
So a Commons Committee does not consider the Bill in its present state to be fit for purpose. It criticises the
“melange of delegated powers provided for in this Bill”,
and bluntly states:
“The Government should present the draft secondary legislation as early as possible,”
as the previous Commons Minister had pledged to do. The Government have failed to provide this before the Bill reached the Lords.
The report goes on:
“Introducing a compulsory voter ID requirement risks upsetting the balance of our current electoral system, making it more difficult to vote and removing an element of the trust inherent in the current system … Given the potential for a significant number of people not to vote as a consequence of the Voter ID requirement, the Government should not proceed with its proposals”
until further evidence has been provided. It then details the practicalities of implementation and the additional burden on polling station staff, which also need to be clarified.
The report is equally scathing about the further complications the Bill proposes about who can vote in UK elections and who cannot. It recommends giving the vote to all who have settled status on a residency basis, rather than extending the historical anomalies we have inherited. The practicalities of extending the rights of overseas voters have also not been explored. Its potential addition of several thousand extra voters to some constituencies—mainly urban—would negate the Government’s aim to reduce the variation in voter numbers from one constituency to another. Checks on their status and claims will be minimal, in contrast to the additional checks on those who vote in person.
I will leave it to others to discuss the complexities of regulating third-party campaigns and of electronic campaign material—both important issues to which the Committee should devote considerable time. I want to flag up the constitutional importance of maintaining and strengthening the role of the Electoral Commission, and of tighter regulation of campaign finance.
The Conservative Party says that it has lost confidence in the Electoral Commission. The CSPL could not find anyone—any witness—outside the Conservative Party who had lost confidence in the Electoral Commission. The PACAC report concludes,
“The Government has not provided sufficient evidence to justify why the proposed measures are both necessary and proportionate. We therefore recommend that Clauses 13 to 15 of the Bill are removed, pending a public consultation”.
I hope the House will follow that advice. The proposals, the PACAC remarks,
“risk undermining public confidence in electoral outcomes”.
Again, it notes that
“there was no formal or public consultation … and that there is a lack of supporting evidence to demonstrate that the proposed measures are both necessary and proportionate”.
The ISC Russia Report calls for the Electoral Commission to be strengthened, not weakened, saying that
“we have already questioned whether the Electoral Commission has sufficient powers to ensure the security of democratic processes where hostile state threats are involved; if it is to tackle foreign interference, then it must be given the necessary … powers”.
The Government’s response to the ISC’s call for them to publish the evidence they had gathered on foreign influence over campaigns was simply to state:
“We have seen no evidence of successful interference”.
They refused to publish while carefully not denying that such interference has been attempted and that there is evidence of it. We are entitled to know about attempts to corrupt our political processes, particularly when they focus on the party in government.
Part 4 loosens, rather than tightens, the control of expenditure. Britain has a party system in which one party can raise far more money than others, in increasingly large sums from a small number of wealthy donors. The United States is the only other democracy in which controls on party finance are so lax. The Bill aims to enable the Conservatives to entrench that advantage by loosening controls on how those funds are spent.
The Government published their response to the PACAC report quietly last week. It failed to address most of the committee’s powerful criticisms.
This is a constitutional Bill. It reshapes the rules of political campaigning and elections—central elements in a constitutional democracy. I hope the Minister will not try to push it through unchanged, stonewalling in overlong speeches into late-night sittings, as he did on the Dissolution and Calling of Parliament Bill. He used to be a constitutional, one-nation Conservative. He has now become a Johnsonian populist, contemptuous of parliamentary scrutiny channelling the Prime Minister’s interpretation of the people’s will, as he has told us on several occasions.
I remind the Minister of two very different speeches about freedom and democracy in the last two weeks, representing incompatible understandings of Conservative values. The chairman of the Conservative Party, Oliver Dowden, made an extraordinary speech in Washington to the Heritage Foundation about threats to freedom. He asserted that these threats are now centred in our universities and schools—in intellectual elites questioning established values. He said nothing, to a Trump Republican audience, about the threats to freedom from those who refuse to accept the outcome of elections, encourage mobs to attack the legislature, erect barriers to voting by disadvantaged groups, and redraw the boundaries of electoral districts to favour one party against others. His silence suggests that he does not think that constitutional rules matter in democratic politics. This Bill arrives in the Lords with worrying echoes of American Republican ambivalence about democracy as such.
In contrast, Sir John Major, when speaking to the Institute for Government, warned:
“Our democracy is a fragile structure: it is not an impenetrable fortress. It can fall if no-one challenges what is wrong, or does not fight for what is right. The protection of democracy depends upon Parliament and the Government upholding the values we have as individuals, and the trust we inspire as a nation.”
I wish I could be confident that the Minister agrees with Sir John, rather than Mr Dowden.
This Bill aims to tilt the rules of campaigning further in favour of the Conservative Party. It would be a contempt of Parliament for the Government to push it through without careful examination of its half-digested proposals. If it becomes necessary to carry it over into the next Session, that would be better than rushing through democratically dangerous regulations. If the House considers that some clauses require more detailed examination in a Select Committee, following the Commons committee’s criticisms, then so much the better. Constitutional Bills deserve and require far more examination than this Bill has received so far.
I have time for one sub-point. The obligation on the Secretary of State is to consult PACAC, among others, before the statement is produced. If so, why will the Government not listen to PACAC’s observations on this part of the Bill:
“The Government has not demonstrated that the proposed measures impacting the Electoral Commission are both necessary and proportionate, and therefore risks undermining public confidence in the effective and independent regulation of the electoral system”?
That is not the end of it. The report goes on to recommend—on top of its series of recommendations about every one of these clauses suggesting modification and improvement—that:
“Clauses 13 to 15 of the Bill are removed, pending a formal public consultation”
and that the body that is supposed to be consulted by the Secretary of State should be allowed to have its say and have another look.
“one hundred and seventy-four honest and independent electors who voted for Robert R. Rowan Moore and free trade.”
In those days there was no secret ballot. Indeed, that great liberal John Stuart Mill was actually opposed to a secret ballot. He believed that honest men—and it was only men in those days—should publicly declare their allegiance. He was frightened of the corruption that goes with secrecy. As the 19th century progressed, however, people realised that only a secret ballot could prevent intimidation by powerful interests. In 1872 the Ballot Act was introduced. All of us in your Lordships’ House are disfranchised in general elections, so we can look at the matter disinterestedly, I think. I am sure that we all agree that the secret ballot was the right way to go. It was the key means of obtaining the universal franchise which lies at the heart of the development of our modern parliamentary democracy.
It follows that the ballot must be carefully protected from the corruption arising from secrecy which Mill feared. The integrity of the universal franchise is guaranteed by methods of registration and scrutiny. This has been essential for public trust. My late father, whom the noble Lord, Lord Wallace, mentioned, was a lifelong Liberal, and frequently a candidate. He therefore had the distressingly wide experience of losing at nine general elections. I remember, however, that he always expressed complete confidence in the functioning of the system, with one notable exception. This was when he stood in Northern Ireland in 1966. There, the split in the community was so entrenched that cheating was endemic. My father met a man who claimed to have voted unionist 92 times at the previous election and was offering to transfer his favours to him. He high-mindedly refused; like his great-grandfather in Hastings, he remained unelected.
The fact that voting in Ulster was often cooked was a symptom of democracy impaired. That is why Northern Ireland today is particularly careful, more so than the rest of the United Kingdom, to protect the integrity of the ballot. A painful history has taught this lesson.
The benign consequences of electoral trust are extremely high. When working on my biography of Margaret Thatcher, I was struck by how she, and most mainland candidates in the middle of the last century, could draw on public confidence in the ballot. In the 1950 and 1951 general elections, she had no hope of beating the Labour candidate, but the sense of engagement was strong. By the time she had left Dartford, she had raised membership of her constituency Conservative association to 3,160, a figure roughly 10 times greater than modern party memberships even in safe seats. No doubt much of this was due to the young Margaret’s phenomenal energy, but there was also widespread faith in the poll itself.
Nowadays, I think this faith is declining. There is serious controversy about personation, intimidation, proxy votes, postal vote harvesting and so on. In the United States, such issues are now so partisan that they threaten to undermine faith in voting altogether. We must not go down that path.
I have a small direct experience of this issue. Before entering this House, I was legally registered to vote in two places: at home in Sussex and in central London. There seemed to be no check on whether such people, of whom there are hundreds of thousands, were voting twice. In the EU referendum of 2016, I therefore decided to expose the problem. I voted normally in Sussex and then went to London. There, I entered the polling station and handed over my legitimate polling card. I went into the booth and wrote, “I am spoiling this ballot paper in order to show how easy it is to vote twice”, and then I submitted it.
I later described this in the Daily Telegraph, hoping to help the Electoral Commission by drawing attention to the dangers of abuse. After a bit, I got a call from the police asking to come and see me. The officer who arrived was very kind and a little embarrassed. She said that the police were acting at the request of the Electoral Commission. Although I had cast only one vote which could affect the result, she explained that, according to law, I had voted twice. The Electoral Commission wanted me prosecuted, but the police had decided that a prosecution would not be in the public interest. “Please don’t do it again,” she politely added. Some noble Lords may think I acted foolishly, but I hope they can accept that my motive was public-spirited. I must say I remain disappointed that the Electoral Commission showed more zeal in chasing me than in stopping potential abuse.
There are strongly differing views about this Bill. Some rightly worry that too close an invigilation of voters’ identity could deter whole classes of people from exercising their democratic right. Others see greater danger in leaving the vote so open to abuse that elections can no longer achieve a true representation of the people. In a maiden speech, I should not come down hard on one side, but I hope that we, who cannot vote in elections to another place, can unite in recognising that the integrity of the ballot really is a sacred trust. It is a simple act to write a cross beside the name of the candidate you prefer, but behind that act lies a long history of legislation and enforcement which is the work of a high civilisation. It is a continuing, delicate work which we must assist.