My Lords, this debate has shown that the noble Baroness, Lady Hayman, is definitely right that we need guidance on this crucial issue of notional expenditure. Many of us think that we do not necessarily need a change in the law, given that the courts have clarified the existing position and we need further guidance about what those decisions by the Supreme Court and Southwark Crown Court mean in practice for candidates and agents.
I believe that the appropriate body to provide such guidance is the Electoral Commission. That is partly because it can obtain legal advice independent from that of the Government; the commission can obtain advice about the meaning of the law that may be different from the interpretation of the Government of the day. It can advise all parties impartially and fairly. The Government’s view is most likely to coincide entirely with how the party presently in power would like the law to be interpreted, and that is not a good thing in a democracy.
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In looking at the general issue of whether it should be the Electoral Commission deciding on rules about the interpretation of election law or the Government, I came across this interesting exchange following an Oral Question of mine on 13 February 2019. My noble friend Lord Stunell asked:
“does the Minister agree that it is vital to retain a robustly independent Electoral Commission … and that we never return to the bad old days when the rules were decided by the party which formed the Government in the House of Commons?”
The Minister at the time, the noble Lord, Lord Young of Cookham, replied:
“Yes. Before we had the Electoral Commission many of its responsibilities were discharged by the Home Office, which was, of course, run by political animals; namely, Ministers. It enhances confidence in the democratic process to have an independent commission, such as the Electoral Commission, in charge of the rules. We have no intention of departing from the principles which underpin the Electoral Commission. I think I am right in saying, as the Opposition spokesman at the time, that my party supported its establishment.”—[Official Report, 13/2/19; col. 1843.]
As is so often the case, the noble Lord, Lord Young of Cookham, spoke wisely. He appeared to support what was the position of the Conservative Party for almost 20 years until very recently. Then after the 2015 general election there was the controversary we have referred to concerning notional expenditure and how the Conservative campaign headquarters appeared to be breaking the rules to support its candidates in marginal seats. We have discussed how in July 2018 the Electoral Commission took the issue to the Supreme Court, obtained clarification of the law, and charges and a conviction for a senior employee of the campaign HQ then followed.
If there was concern about the need for clarity, the Electoral Commission was best placed to provide it impartially and objectively, and indeed set about doing exactly that. It consulted all the parties extensively. It produced codes of practice for candidates and agents. These codes provided advice and they should then have been introduced as statutory instruments to have greater force in law, but even as codes there would have been something that the courts could take notice of. These codes were submitted to the Cabinet Office on 21 April 2020 and there they were buried until now, when the Government appear to want them to be rewritten in this legislation. That is why it is the Electoral Commission which should be responsible for issuing advice on the interpretation of election law, not the party in power.
I will briefly say a word on Amendment 30B in the name of the noble Lord, Lord Collins: £20 is a very out-of-date figure for an election agent to have to submit a formal voucher on. I recall as an agent many years ago when the limit was £2, and before submitting
the return of election expenses I had to drive round various places to collect a receipt or a voucher for £2 to meet the very tight deadline. Oh, there is a phone ringing; my apologies, that is someone calling about the receipts that are overdue from some previous election. I think I took part in debates that increased the limit from £2 to £20 and thought that was my triumph as a former agent—the agents fought back and got the limit uprated. It should be uprated because there is no actual increase in spending in the proposition, simply a realistic increase in the limit for which you have to produce a voucher. This reduces paperwork, bureaucracy and time so that people can get on with their real jobs.