My Lords, I begin by associating myself with two themes that have been part of almost every other speech: first, the importance of a well-organised electoral system in
which the public have trust and confidence, which is a critical part of our democracy; and, secondly, I add my congratulations to the noble Lord, Lord Moore, on his witty and informative speech.
We have before us a very big Bill—my noble friend Lord Naseby had a point when he said that it might have benefited from pre-legislative scrutiny—but, in six minutes, one has to focus one’s comments. I will focus my remarks on an area that has not had much attention so far: third-party campaigning. My interest in this is because I was appointed by the Government to review Part 2 of the rather inelegantly named Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act, hereinafter called the 2014 Act. I argued that, if a properly funded and properly organised electoral system is critical, a vibrant civil society is also a critical part of a well-functioning democracy. It is through the hundreds and thousands of charities, voluntary organisations and pressure groups, which are spread the length and breadth of the land, that our fellow citizens find ways to give power to their voice and opinions.
From time to time, of course, they will seek to speak truth to power, and sometimes power finds that uncomfortable. However, on the other hand, civil society is clearly not staffed entirely by angels, so there will be groups that seek to push the envelope in ways that are to the detriment of the system overall. That is why it became clear to me that, while some groups argued for the complete repeal of this part of the 2014 Act, they were wrong. If we are to avoid some of the unpleasantnesses that have emerged in the American electoral system and which have featured in other noble Lords’ speeches this evening, we need to have a proper regulatory system that balances these two difficult things. Indeed, I entitled my report, Command Paper 9205, Getting the Balance Right.
I will pick up on one general point. Here, I pick up the point made by the noble Baroness, Lady Hayman, and later on by my noble friend Lord Hayward. Many people thought that the 2014 Act was an entirely new Act. It was not. It made amendments to Part 6 of the PPER Act 2000 and now, in Clauses 24 and 27, we are making yet more changes to Part 6 of PPERA. It becomes increasingly difficult and hard to understand the implications of what is being proposed. It seems a pity that a person inevitably has to reach for a lawyer to guide him or her through these statutory layers. It could be argued that the statutory framework that underpins our electoral system ought to be, wherever possible, comprehensible to the reasonably informed reader. Can my noble friend the Minister say when he comes to wind up whether the Government have any plans not just to consolidate the 2000 and 2014 Acts but to take in the Representation of the People Acts, particularly that of 1983, so that we have in one place a statute that covers the conduct of both local and national elections and associated matters?
On the implications of the Bill for third-party campaigning, there are some areas that we might wish to probe in Committee. First, the regulatory period before elections take place, which is set at 12 months, is arguably too long. The rules governing joint campaigning are arguably too complex. The rules defining membership of an organisation are arguably too lax.
However, I want to spend my last minute and a half on the other major area of concern: what is known as the intent test.
The 2014 Act broadened the range of activities caught by third-party campaigners to those that
“can reasonably be regarded as intended to promote or procure electoral success”.
This, it was argued, had what was called a chilling effect on all third-party campaigning. It is the Electoral Commission that decides what can be “reasonably be regarded”, and it is no criticism of the commission to point out that it is not under direct democratic control. We come to the point made by the noble and learned Lord, Lord Judge, earlier; he and I are on the same side as regards making sure that the power of Parliament against the Executive is properly maintained.
This is not even secondary legislation; it is tertiary legislation. It follows the point identified in the democratic deficit report produced by the Delegated Powers and Regulatory Reform Committee of your Lordships’ House in November 2021.
One way around this is for the Electoral Commission to produce a code of practice which would be debated and passed by your Lordships’ House and by the other place. Compliance with it by a third-party campaigner would then have a statutory defence. We might look at this as a way of lancing this boil of suspicion and mistrust.
In conclusion, I absolutely support a proper, organised electoral system. It is important not just to politicians and political parties but to ensure that every one of us has a chance to express our views directly or through organisations which we support. This is why we need to get the balance right.
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