My Lords, we have already explored what the exact meaning of “encouraged” is. I thought the answer was going be a lemon, but it is guidance, apparently, which is not very encouraging. I am hopeful that the courts in the event will be just as robust in their interpretation of “encouraged” as they were in respect of coach trips to Thanet, so that this clause in practice will not make the change in the law the Minister hopes for. It may become a dead letter, even. More exactly, it will become not a dead letter but a further cause of confusion, with no reduction in jeopardy for agents and candidates who rely on it. But for the purposes of this debate, let us take it at face value.
In our debate last week on Clause 17, I referred to that clause as an exercise in “wing-clipping” the Electoral Commission. By the Minister’s own account, as he
told your Lordships, in practice, those proposed changes made no real difference to anything. He obviously intended to give us some reassurance that those changes meant nothing at all, but I surmise that when he reports back to CCHQ he will make it sound a far more impressive change. Now we have Clause 18, which I also think is going to be found facing both ways. In reality, it is an attempt to satisfy the bloodlust of some right-wing Tory MPs who had rather a close shave in 2015. The Minister’s intention is that if this clause goes on the statute book next time, they will get away scot free. For that matter, we will all get away scot free, able to do exactly as the noble Baroness, Lady Bennett, has just spelled out. I actually think that in responding to this debate he will attempt to sell it to us as something far less important or serious: “It is simply a margin note to clarify the commonly accepted understanding of current law. Nothing to see here; let us move on to the next clause.”
It is worth exploring what the law says now and how it will be different if this clause stands. My noble friend Lord Rennard spelled this out very clearly. In a general election, there are two financial constraints, one at constituency level and one at national level. The constituency spending level is, comparatively speaking, tight, and the national level is, comparatively speaking, generous—and about to become even more generous, apparently. That second constraint—the maximum figure a party can spend outside constituencies—goes into a national campaign. Even the Conservative Party, with all its large donors from various nationalities and provenances, has actually found it hard to spend up to the national limits; and no other party has come anywhere close. So there is an obvious temptation to use some of that spending power in supporting constituency campaigns, which may be pressing hard up against their expense ceiling.
Of course, big cheques cannot simply be handed over by a national party campaign to the local one. It would be too visible. But goods and services in kind are much harder to keep in focus from outside. Even so, existing election law requires the constituency agent to give a fair account of any goods and services received below cost, and that that difference should be taken into account as a donation in lieu. In practice, help has to be a little more nuanced and a little more distanced from the agent. That was the nub of the fracas in Thanet. The election court saw through the Conservatives’ sleight of hand, so now we have Clause 18.
I call Clause 18 the “get out of jail free” clause. No notional spending by a party in a constituency will count unless the local agent or responsible person has “directed, authorised or encouraged” that spending. It probably does not work, although the dialogue between the party and the agent would be an interesting one to hear, would it not? “Hi Mr Agent, just a quick call from national HQ to let you know we are sending in a couple of teams to work alongside your people for the next couple of weeks. No big deal, it won’t cost you a penny. Now, don’t say a word, I don’t need any encouragement from you. It is just that your seat polling figures are slipping, so we think you need some help.” Was there any authorisation or encouragement? No, he did not encourage anybody. He did not open his lips.
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There is a bigger evil hiding in plain sight here. A national party with money to spare will be able to change the entire nature of our democratic system from one where voters elect their representatives to Parliament, with every contestant allowed the same quite modest ceiling on spending on something approaching a level playing field, to one where hugely disproportionate spending can be shovelled into specific seats—indirectly, of course, but none the less effectively. This would amplify the turn towards a presidential system and certainly be capable of distorting popular representation in Parliament. As my noble friend Lord Rennard pointed out, the clear intention of electoral law up to now has been to arrest that move to keep campaigning proportionate and literally within limits in constituencies.
This clause may well be defective and fail in its intentions anyway, but what it proposes to do is to smash those limits whenever a rich, well-funded national party wants to do so. Of course, it could well be that such a rich, well-funded party, having gained a substantial majority in Parliament, would then decide that it could easily afford the small political cost of ditching any search for cross-party consensus in bringing forward an election Bill and simply press ahead with fundamental change without even blinking. Clause 18 has to go.