My Lords, this has certainly been a very interesting debate. I thank the noble Lord, Lord Wallace, for tabling these amendments, and I wish him well as I understand the reasons why he is not with us today. I also thank the noble and learned Lord, Lord Judge, for his incredibly thorough and forensic introduction in the noble Lord’s absence. I cannot think of anyone who could have better gone through these clauses and explained the concerns around them.
We know that the Electoral Commission was established by the Political Parties, Elections and Referendums Act 2000 in order to oversee elections
and regulate political finance in the UK independently of government. The 1998 report from the Committee on Standards in Public Life emphasised the fundamental importance of independence for the proposed commission. It said:
“Those who have advocated the establishment of an Election Commission have been emphatic that it should be independent both of the government of the day and of the political parties … An Election Commission in a democracy like ours could not function properly, or indeed at all, unless it were scrupulously impartial and believed to be so by everyone seriously involved and by the public at large.”
In its 2007 review of the Electoral Commission, the CSPL highlighted the dual requirements of independence and accountability, saying that
“any system of accountability must also protect the Commission’s independence and impartiality from the possibility of undue influence for partisan political or electoral advantage”.
In 2009, party-nominated commissioners were introduced to bring knowledge and experience of political parties and the workings of elections from those perspectives. This is now well represented and understood by the commission.
Part 3 of the Bill would make significant changes to the way in which the Electoral Commission is accountable to Parliament, giving new powers to the UK Government to designate a strategy and policy statement, about which many noble Lords have expressed concerns. It would require, as other noble Lords have said, the commission to “have regard to” this statement when carrying out its functions. It was really important that the noble and learned Lord, Lord Judge, went carefully through the Bill on the implications of what this would mean.
The introduction of a strategy and policy statement which enables the Government to set the strategic direction for the work of the Electoral Commission is inconsistent with the role that an independent commission plays in a healthy democratic system. This independence is fundamental to maintaining confidence in our electoral system. The commission’s independent role must be clear for voters and campaigners to see, and it must be preserved in electoral law. This underpins fairness and trust in our electoral system and provides cross-party confidence in the commission. The noble and learned Lord, Lord Judge, explained why he thinks that public confidence could be lost if complete independence of the Electoral Commission is lost.
The commission’s accountability is currently directly to the UK’s Parliaments and should remain so, rather than being subjected to government direction. As we have heard, the Electoral Commission itself took the unprecedented step of writing to the Secretary of State and the Minister in the other place. The noble Lords, Lord Kerslake and Lord Beith, quoted from this letter and I would like to do the same. In it, the Electoral Commissioners
“urge the Government to reconsider those measures which seek to change the oversight arrangements of the Electoral Commission.”
I find it quite extraordinary that it felt the need to ask the Government to reconsider because it was so concerned.
Independence from the Government of the day is important because it prevents an incumbent changing laws or practices to suit their political interests. It can also strengthen public trust in the political process. Just as the judiciary should be independent, electoral
officials should be non-partisan. As my noble friend Lord Eatwell said, the Secretary of State is both regulator and regulated.
The problem with the Bill is that, in contrast with keeping electoral officials non-partisan, it proposes to weaken the commission’s independence as well as to give the Government greater power by allowing them to designate the strategy and policy statement. It gives Parliament—but in practice, a Government, if they have a majority—the power to examine the Electoral Commission’s compliance with this. The Electoral Integrity Project describes this as
“a direct violation of international best practices and would constitute democratic backsliding because it is giving the government and future governments greater control over the conduct of elections—the process through which citizens are enabled to hold government to account”.
As we have heard from the noble and learned Lord, Lord Judge, new Section 4A of PPERA, as inserted by Clause 14, empowers the Secretary of State to designate this strategy and policy statement. This would set the strategic and policy priorities of the Government relating to electoral and similar matters, and the role and responsibilities of the commission in enabling the Government to meet those priorities. The statement may also give guidance in relation to particular functions of the commission and may provide additional information. The noble Lord, Lord Scriven, mentioned “any other business”. If that is the case, can the Minister tell us where the checks and balances are as to what this could include?
Evidence given to the Public Administration and Constitutional Affairs Committee included, its report said,
“strong criticisms from academics and a range of stakeholders that the measures lack justification and were characterised as a ‘retrograde step’ ‘an extremely dangerous thing to do’ and ‘would constitute democratic backsliding’
In his evidence, it continued, Professor Fisher pointed to
“surveys of election agents since 2005 which ‘have seen that confidence in the [Electoral Commission] has grown over this period ... there is no particular problem with those that the [Electoral Commission] regulates’”.
Far from requiring additional oversight, the commission already delivers good work in ensuring high levels of satisfaction in the integrity of the electoral process among those who are most knowledgeable and closely involved. A survey of electoral agents at the 2019 general election showed that 78% agreed that the rules in respect of election spending and donations were clear; 72% viewed the Electoral Commission as a useful source of advice; 75% thought that electoral guidance for candidates and agents was clear and easy to use; and 75% thought that the Electoral Commission’s written information on the verification and count was clear and easy to use.
In its response to the Public Administration and Constitutional Affairs Committee, whose report raised these concerns, the Government said:
“It is not uncommon for the Government to set a broad policy framework, as approved by Parliament, which independent regulators should consider”
giving as examples the relationship that Ministers hold with regulators such as Ofcom and Ofwat.
The noble Baroness, Lady Noakes, referred to other regulators, mentioning her experience with Ofcom in particular. I too have spent many years working in regulated industries, in my case energy and water. I would instead agree with the noble Baroness, Lady Wheatcroft, and the CSPL, which considers this to be a completely false analogy, since these are not regulators implementing government policy. The Electoral Commission regulates the people and parties that make up the Government and Parliament. The noble Lord, Lord Scriven, gave an example as to why the situation with regulators such as Ofcom and Ofwat is so very different, so I do not accept that analogy. When giving evidence on this, Professor Alan Renwick stressed that
“ministers and parliamentarians should recognise their own potential conflict of interest.”
Does the Minister recognise that there is a potential conflict of interest here?
Clauses 14 and 15 are not just about increasing the accountability of the commission to a Committee in the House of Commons, to which it already reports. Clause 14 subjects the commission to strategic and policy control, including guidance on specific cases, not by Parliament, but by Ministers. It is pretty difficult to express just how appalling this is but the noble and learned, Lord Judge, did an excellent job. Policy control and even guidance on individual cases might be appropriate for other public bodies—for example, those making decisions about infrastructure or planning permission—but it can never be right for the governing party to be able to give instructions to a body whose role requires it to make decisions that might well go against the interests of that party.
Under Clause 14, Ministers could guide the commission to interpret its powers in ways that would favour the ruling party and its friends. The courts might provide a backstop in the most extreme cases, such as where guidance tries to permit illegal activities, but judicial intervention is unlikely in more strategic interventions, such as Ministers telling the commission to restrict or halt its work on voter registration, which targets mainly young people, minorities and renters living in house-shares.
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Restricting the independence of the Electoral Commission is contrary to international norms. As the noble and learned Lord, Lord Judge, said, we would be concerned if what is being proposed here was being proposed in another country. The Organization for Security and Co-operation in Europe recently criticised Poland for proposals that would have transferred powers from its national election commission to Ministers. Likewise, the European Commission for Democracy through Law insists that electoral commissions must be independent and politically balanced. Its investigations have expressed concern on several occasions about transfers of responsibilities from a fully-fledged, multi-party electoral commission to an institute subordinate to the Executive. We on this side of the House are deeply concerned about these clauses.
To pick up some other aspects of the debate, the noble and learned Lord, Lord Judge, referred again to concerns about how consultation is being carried
out—a theme we have been coming back to all day. Proper consultation listens to respondents and then demonstrates meaningfully in its response what actions and decisions have been taken following the process so that it properly takes account of the concerns that people have raised. This does not seem to be happening at all with the Government at the moment. We have consultation that is no more than a tick-box exercise. Even worse, as the noble and learned Lord, Lord Judge, said, the Secretary of State is not even obliged to consult anybody. They have only to consider representations.
The noble and learned Lord also referred to the problems around the majority on the Speaker’s Committee, with two members examining the way in which the Electoral Commission has been carrying out government policy. As the noble and learned Lord said, this is undue influence.
My noble friend Lord Stansgate asked the House to consider the damage to our democracy if these clauses were to go through. The noble Lord, Lord Kerslake, made the important point that there should be pre-legislative scrutiny. Again, this comes back to the lack of scrutiny and consultation. He made the really important point that the Electoral Commission was asked if it had been consulted, to which it said no. This Government seem to have a real problem with consultation and scrutiny, and we should all be concerned about that. My noble friend Lord Eatwell also referred to this and to the fact that serious changes to our electoral law are being proposed with no pre-legislative scrutiny.
My noble friend also referred to the fact that at Second Reading, the Minister did not extend the precautionary principle he discussed in relation to other parts of the Bill to Clauses 14 and 15. It is important that your Lordships’ House is able to protect our democracy against any imposition of legislation that can be considered partisan.
As the noble Lord, Lord Rennard, said, independence has survived five general elections, so I ask the Minister—as the noble Lord, Lord Rennard, did—why these changes are required now. Despite what the Government say and the reassurances they have given us, these proposals do undermine independence.
I now come to the points made by the noble Lord, Lord Hayward. I listened carefully to him, but I do not think that we are all looking at the Electoral Commission through rose-tinted spectacles. He raised some important points, but what we are discussing today is, and the concerns that we have are, about the removal of the commission’s independence. That is what is so important. As the noble Lord, Lord Beith, said, you can be critical of the Electoral Commission but still believe that its independence matters, and that these clauses need to go.
I finish by referring to the noble Lord, Lord Russell of Liverpool, and echo his request: will the Minister please listen carefully to the arguments of the noble and learned Lord, Lord Judge, and to the concerns of the House?