My Lords, in respect of the comments made a few moments ago by my noble friend Lord Cormack about the Electoral Commission, perhaps I should put on the record that I sit on an informal cross-party advisory group for the Electoral Commission. It is not a pecuniary interest, but it means that I take very seriously its advice.
As the noble and right reverend Lord, Lord Harries, said, Amendment 11 builds on my own amendment on Report last week, and on Amendment 170A in Committee, and I welcome the fact that it is still here for our discussion. However, I believe that too much building has taken place, and I regret to say that I think that the lawyers have been too clever by half. The purpose of my amendment was to simplify drastically the operation of the constituency limit. I wanted to do away with any need for anyone to work out what did or did not have a significant effect on whom. That was the previous test, which I thought was extremely ineffective and very difficult for small organisations to address without great bureaucracy.
In my estimation, if election material that can reasonably be regarded as seeking to promote or procure the electoral success of a party or candidate has been sent directly to an elector in a constituency, it should be counted under the relevant constituency limit. That seems to be a very simple test. Likewise, if unsolicited telephone calls are made to ascertain or influence voting intentions, it is easy to know where the people whom you are calling live and to allocate those costs to a constituency limit. The amendment on Report was about simplicity.
However, my noble and learned friend the Minister made a compelling point on Report last week. He said that materials could be distributed within a constituency other than by delivering them directly to electors’ homes—they could be handed out in town centres, for example. The noble and right reverend Lord, Lord Harries of Pentregarth, has rightly tried to meet that point in proposed new sub-paragraph (1) of his amendment, but the complication of considering whether materials handed out in a town centre are trying to influence a constituency result has led him and his
advisers to complicate the amendment with proposed new sub-paragraphs (2) and (3) of the amended schedule. Therein lies a problem.
The cumulative effect is to ask those campaigners—many of them small operations, as we have been constantly reminded—to consider their spending against not one test, as I advocated last week, but three. First, there is my test, which I have already given: are the phone calls and election material directed at a particular elector or household? That is easy. Then we have in this amendment, secondly: does the material have a significant effect just in the constituency to which it was sent? Who can tell? When can they tell? Perhaps they can tell only after polling day. Therein lies another problem. Then there is the third qualification: can it reasonably be inferred that the third parties selected the electors in order to contact electors in that constituency,
“and not a wider section of the public”?
Who will adjudicate on that and when?
I do not know how one can be sure of either of the latter tests, either in terms of the Electoral Commission and its very proper responsibilities, to which my noble friend Lord Cormack has just referred, or of the organisations that have been in touch with us over the past few weeks. I can see that it may be necessary in relation to the narrow issue of handing out leaflets in a town centre. After all, leaflets handed out in the town square of my old North Cornwall constituency would almost certainly be directed at North Cornwall’s results and voters, but leaflets handed out in Trafalgar Square might not be directed only at voters in the City of London and Westminster.
That is a problem—one brought about by the Minister’s legitimate concern about the distribution of leaflets in a town square. If we had more time for drafting, I would be able to find some additional tests, but only for this additional activity of handing out leaflets rather than for all deliveries that could take place. It is a rather complicated point and I apologise for that to Members of your Lordships’ House—but it is an important one.
As the amendment is drafted, it means a loophole is created, permitting direct communication with voters outwith the constituency limit because it could somehow be deemed under sub-paragraphs (2) and (3) of the amended schedule that the materials sent to them were not really supposed to influence the constituency result. I do not buy that, and at this stage it leaves a real lacuna. If you write to a voter in a constituency to promote or procure the electoral success of a party or candidate, I am confident that you are trying to promote or procure their electoral success in that constituency. That is a simple rule, and one it would be simple for campaigners big and small to follow.
At every stage of the Bill, from Second Reading right through to Report last week, I have been concerned to simplify and clarify the requirements placed on campaigners, reflecting what they—the campaigners, who are charities and other organisations—have said consistently to me and my Liberal Democrat colleagues in both Houses, and no doubt to many other Members of your Lordships’ House. None the less, I regret the position we are now in since I have pursued this issue right from Committee.
I return to the point made by my noble friend Lord Cormack: the Electoral Commission still says that it has concerns about the enforceability of a constituency limit. There needs to be a constituency limit. A revised amendment along these lines would make that more effective and much easier to enforce. Combined with the sensible changes to the constituency threshold that I outlined in the debate on the previous group of amendments, the whole regime would be much tighter and more workable, which is what the Bill sets out to achieve.
Following up on the point made by my noble friend Lord Cormack, I promised to refer to the advice given to us by the Electoral Commission. At the end of its advice to us for today, referring to Amendment 11, it said:
“We think this amendment would reduce this problem, but in practice it will still often be difficult to obtain adequate evidence of a breach at a constituency level and deal with it before polling day”.
That is an extremely important point. To that end, I hope that my noble and learned friend the Minister will respond positively to this amendment, even if it means that some simplification must be achieved in the other place tomorrow.
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