My Lords, I did not intervene in the last serious and lengthy debate. I understood how seriously many Members of your Lordships’ House took the issue. I had some peripheral dealings with clubs from the three major parties during
my review and I have to say that the political affiliation was probably rather less important than the quality of the club, its community sense, the price of a beer and the nature of the bingo—all of which are very important—but the weight of political influence being placed on the clubs was not borne out by any evidence I received. That is not to undermine the point being made, but I would not place on the clubs the weight that I heard some noble Lords putting on them in the last hour and a quarter.
I turn to Amendment 54A and I am very grateful for the support of the noble Lord, Lord Blunkett, who I am delighted to see in his place. This is the most important of the series of amendments that I have tabled on the third-party campaigning system. It takes us to the heart of the various concerns about the impact of the present regime on third-party campaigning, in particular—the phrase we have become familiar with, having heard it many times in sittings of the Committee—“the chilling effect” of the 2014 Act.
The problem for third-party campaigners is the lack of certainty in key aspects of the current regulatory regime. There are two particularly important areas. The first—I come back to it—is the intent test. The key phrase—I say it once more—is
“reasonably regarded as intended to promote or procure electoral success at any relevant election”,
which is essentially the linchpin of the whole third-party campaigning regime. It is interpreted by the Electoral Commission, which decides whether a course of action infringes that phrase and makes the decision on its own authority entirely. Although I absolutely recognise that the electoral commissioners work hard and successfully to reassure civil society about its fears, and I applaud that, the kernel of doubt and concern remains there to gnaw away at the confidence of third- party campaigners.
When we debated Clauses 14 and 15—I do not want to repeat the remarks I made in those debates—my noble friend the Minister faced very heavy criticism of the extent to which the Bill, as currently drafted, would undermine the independence of the Electoral Commission. As I listened to the debate, the argument seemed to be that the Electoral Commission should be made more independent, given more freedom of action. As I explained in an earlier sitting, I am concerned about such a development. Just as noble Lords did not believe my noble friend would have malevolent intentions, it was argued that he would not be in post for ever, and who could tell who might succeed him and what his successors might do with the powers that the Bill gave them? Similarly, I am not criticising the current Electoral Commission; I make that very clear. I recognise, as I said, that it worked hard with third-party campaigners to reassure them of the practical implications of the intent test. However, the commissioners too will not be in post for ever, and who knows who might follow them?
The noble and learned Lord, Lord Judge, was among those who led the charge and was most critical of the Government in that debate. He and I have made common cause about the inadequacy of the present procedures for scrutinising secondary legislation and I do not resile from that at all. However, the criticism of
the Government, if followed through, would create an organisation that would be making tertiary legislation. It would be promoting, making and enforcing regulation in key areas of our electoral system without any vestige of democratic control at all. I argue that this is undesirable.
There is, however, a way to restore this and to restore a decent element of parliamentary—and by parliamentary I mean, parliamentary, not executive—control over the Electoral Commission. This would be achieved by means of codes—codes of practice which have to be approved by both Houses of Parliament. Crucially, as a result, compliance with the code would give a statutory defence, so ending the uncertainty that has caused so much concern about the present regime.
The amendment therefore introduces a new clause that would require the Electoral Commission to prepare statutory codes of practice—powers, by the way, it does not have in the current legislation. The areas to be covered are listed in proposed new Section 100A(1)(a) to (d). Two areas are of particular importance: first, the intent test—the Electoral Commission will be required to produce a code explaining how it proposes to operate that test—and, secondly but no less importantly, we need clarity on what constitutes a member of an organisation. This is important because, once you are a member of an organisation, communicating with you ceases to be a qualifying expenditure for the purposes of the Act. So a third-party campaigner can build membership quickly and have an increasingly wide reach without any commensurately increasing expenditure being imposed on them.
In today’s hyperconnected modern world, it is astonishingly easy and cheap to email hundreds of thousands of people about an issue and put on the bottom of the email, “Please tick this box if you want to be a member”. I regard this as potentially a very dangerous opening, offering, in particular, the prospect of third parties holding views at the outer fringes of our society being able to build up so-called members, who can then be communicated with free of charge. This would offer such groups a campaigning reach far beyond their real level of support. The Electoral Commission currently has a series of categories—including “committed supporter” and “the public at large”—and I am afraid I am far from convinced that these stand- alone terms will be able to meet the pressures of an age of ubiquitous social media. We need a code for what constitutes “the public”—namely, the opposite of a member—and this is provided for in proposed Section 100A(1)(b).
The rest of Amendment 54A is concerned with process, laying out a list of the groups that have to be consulted by the Electoral Commission: the devolved Administrations, on matters concerning them, and a representative sample of civil society groups. The Electoral Commission must then provide a draft and present it to the Secretary of State, who may approve the code or modify it. If he chooses to modify it, he has to explain why he has done so, so that the difference between what the Minister and the Electoral Commission think is clear. A series of procedures for obtaining the consent of both Houses is then laid out in the latter part of the clause. Crucially and importantly, proposed Section 100A(13) reads:
“It is a defence for a person or third party charged with an offence under this Act to show that any guidance for the time being issued under this section was complied with in relation to Part VI of this Act.”
Amendment 54A could provide, first, a high degree of certainty and, therefore, reassurance on certain key issues of the regulatory regime and, therefore, to third-party campaigners. Secondly, by using secondary legislation, it offers the opportunity to keep regulations up to date, reflecting changes in society, social media, public attitudes and campaigning methods, thus reducing the dangers of evasion. Thirdly, it introduces a proper degree of democratic or parliamentary control of the Electoral Commission, thereby perhaps offering the Government part of a way out of the troubles in which they have found themselves in Clauses 13 and 14.
It is a common phrase that the law is too important to be left to the lawyers. I submit to the Committee that electoral law, which goes to the heart of our democracy, is too important to be left to an untrammelled Electoral Commission. I beg to move.