Political Parties and Elections Bill

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Q 56Mrs. Laing: The Secretary of State has, I think, just proved my point, which is that there is a lack clarity in this Bill. I thank him for that long and difficult answer. I appreciate that his intentions are good in the restoration of triggering, but, just by the very nature of his answer, it has become even more obvious that this part of this Bill is not clear. If we have an unclear law, we will end up with election results that are challengeable. Election results that are challengeable means that the validity of a future Government could be challengeable, and the very basis of our whole democratic process is weakened rather than strengthened.
All that I am asking here is that the triggering mechanism should be more clear than it is at present. Our interpretation of the Bill is different from that of the Secretary of State and that proves the point, which is that lawyers on both sides have a different interpretation of this. It must be clear so that the election result will be clear.
Is it not possible that there might be a candidate at this very moment, raising and spending money? It might be the Secretary of State’s mother raising money for the Labour candidate in my constituency, I hope so because we want to make sure that the Liberals do not do too well.
The Chairman: Order. Please keep within the scope of the Bill.
Q 57Mrs. Laing: I was merely showing a great respect for the Secretary of State’s mother, who is a fine campaigner in my constituency. My real point is that, at this very moment, there might be candidates out there raising and spending money. It might be that, when this Bill comes into effect, they then find that they have spent up to the limit that will be imposed upon them. Therefore, a candidate could be in the position, after the Bill comes into force, of not being able to spend another pound on electoral matters and an electoral campaign. That would be particularly unfair, since there are far more Conservative, Liberal, Scottish nationalist and other candidates out there than there are Labour candidates, by the very nature of the Government’s majority.
Mr. Straw: First, it is your interpretation of what I said, and not my view that this is not clear. Secondly, the law on what is, or what is not, an expense for the purpose of the 1983 Act, is now more explicit than it was by what was put into that Act by the 2006 Act, on an all-party basis. That is in clause 11, which amends paragraph 14 of schedule 4A to the 1983 Act and which lists election expenses in a way that they were not listed before. That is helpful for people in all parties who have to determine what an election expense is.
My other point, which I am happy to have confirmed to you by Mr. Sweeney or Mr. Smith, is that it is not my, or the Government’s, purpose to make this provision retrospective. It is improper to have retrospective legislation, except in the circumstances that I have described. Clause 10(5) could not be more explicit, stating:
“The amendments made by this section do not apply to expenses incurred before the commencement of this section.”
Q 58Mrs. Laing: But with respect, Secretary of State, if the commencement of the section were, let us say, more than four months before a general election, which of course is difficult to predict because no one knows when a general election is going to be—you might, but not the rest of us—there would still not be certainty. Are you suggesting that you will take steps to ensure that that part of the Bill does not come into effect until, let us say, a year or more from now?
Mr. Straw: I am certainly not proposing that, but as I say, I am happy to consider representations. I have already made it clear, as has Mr. Wills, that the commencement of the clause should not automatically be on Royal Assent but should be by order. I have said that, and I think that I said it to the Justice Committee in answer to Mr. Tyrie. I now recall that it was not on Second Reading. Anyway, it is on the record. The Electoral Commission made representations about the need for guidance.
On the issue of uncertainty, Mrs. Laing, we do not have fixed-term Parliaments—some think that we should, others think that we should not. We have managed to find a way around that problem, which I think has worked reasonably satisfactorily, in the regime for the control of campaign spending, which is from 365 days before a general election—we simply work backwards.
On the trigger, I first stood in a general election in 1974. I cannot remember how many I have stood in, but apart from the October 1974 election, I have stood in every election since February 1974—quite a lot of elections.
Martin Linton: Tonbridge and Malling.
Mr. Straw: Tonbridge and Malling. I did not win.
I have been a candidate, as opposed to a Member of Parliament, on two occasions. The trigger had a dampening effect on expenditure. It did not wholly prevent spending, not least for the reason set out by Lord Bingham. I believe that with guidance from the Electoral Commission the trigger, which after all is now clearer than it was under the unamended 1983 legislation, will work. I also say, through you, Mr. Cook, that if there are proposals for other ways of arriving at the same end that are seen as better, we are open to discussion about them.
Q 59Mrs. Laing: May I ask you finally, Secretary of State, whether you will therefore undertake to ensure that the Electoral Commission is able to publish its guidance and have it examined before that clause comes into law?
Mr. Straw: We are trying to align the two. I cannot give an absolute undertaking on that until I know how long the Electoral Commission will take to do that, but I appreciate that if I were to bring the clause into effect before the commission had a chance to issue its guidance, I would come under some criticism, to put it at its lowest.
Q 60Martin Linton: Surely it could not be clearer. The Bill is intended to reinstate the legislation passed by the Conservative Government in 1983 in exactly the form that it was in then. Indeed, that applies also to the rules on MPs’ expenditure that were in force in 1983. The situation was exactly the same, and the Bill is reversing an accidental loophole to take us back to the situation that the Conservative Government passed in 1983.
There is only one area that is possibly unclear, and on which I seek the Secretary of State’s explicit guidance. Presumably, when the clause comes into force, those candidates who already have websites up describing themselves as a candidate, or who have leaflets or business cards stacked in their stationery cupboard describing themselves as a candidate, will have to amend them. It does not guarantee that any money spent before the date it comes into force can stand.
Mr. Straw: I am open to correction by officials, but I think—I may disappoint you on this—clause 10(5) means what it says. If a political party has spent money on business cards or setting up a website before this clause comes into force, the amendments made by this clause do not apply to that expenditure.
Q 61Martin Linton: Then they can publish 50,000?
Mr. Straw: All these things are possible, but the other side of this is that if we were to do what I know you would wish in relation to expenditure incurred before the date of Royal Assent, we would be open to equal opposite complaints of acting unfairly—that is the difficulty—and, certainly so far as expenditure was incurred before Royal Assent, of acting retrospectively. I have already, if I may say so, dealt with that.
There is an inherent difficulty in seeking to change the electoral regime during a Parliament, because it is bound to be the case—we are trying to find a way through this—that political parties, whatever the loopholes, will have worked within the current legal regime perfectly lawfully and they will have grounds for complaint if they say, “Well, hang on. We were working within this. You may disapprove of it; it may be a loophole, but we were working lawfully and then it suddenly changed.” There has to be a process of getting from A to B, which is what I am trying to do.
Q 62Martin Linton: But surely candidates will have ample forewarning that the law is going to change. Whenever the Act comes into force on Royal Assent, that will still be several months away, at the very least, so they must be aware of the fact that the law is being returned to what it always had been before. A loophole is being closed. They have been told. People know that is going to happen. Surely it is reasonable to expect people not to print extra leaflets when they know that the law is about to change.
Mr. Straw: With respect, I think I have answered that. May I just say this for the avoidance of doubt? Mr. Linton is absolutely right that in broad substance what we are doing is to reintroduce the 1983 Act, whose provenance goes back to the 1883 legislation. There are two differences. They are not particularly significant. One is that the original provision in the 1983 Act said that election expenses were defined as meaning expenses incurred, whether before, during or after the election,
“on account of or in respect of the conduct or management of the election”.
That was changed by the 2000 Act to a reference to the purposes of the election.
The second change, to which I drew Mrs. Laing’s attention, is in the 2006 Act, on page 30. There is clarification of detail about what constitutes election expenses, which was not there before. I think that was agreed on an all-party basis. I am not absolutely certain about that. That is new schedule 4A to the 1983 Act.
The Chairman: We must finish this part of the sitting by 12 noon. There can be no argument about that. I do not want to have to interrupt witnesses or Committee members, but four Committee members are seeking to catch my eye. They are, in order of registration, Tyrie, Howarth, Djanogly and Reid, so please make your questions brief, and the answers, too, Secretary of State.
Q 63Mr. Tyrie: Thank you, Mr. Cook. First, thank you very much, Secretary of State, for the flexibility that you have been showing on making adjustments to the triggering clauses. I have two quick questions. Why was this not subject to consultation?
Mr. Straw: It was and it wasn’t is the answer. We had the Hayden Phillips report and the inquiries. I then published the White Paper in June. The Bill was published on 17 July. We then allowed a period of getting on for three months before Second Reading.
Mr. Tyrie: I will take, “It was and it wasn’t”.
Mr. Straw: There was no formal consultation, but I invited comments on it.
Q 64Mr. Tyrie: I want quickly to get on to one other question. You have made it clear that the MPs’ communications allowance will not be covered by the triggering rules because it is not held to be party political. If an MP was found guilty by the Standards and Privileges Committee of abusing the communications allowance, under the Bill would they be deemed to have triggered their own campaign expenses?
Mr. Straw: That is a very good question.
Mark Sweeney: The answer is potentially yes, but we shall have to reflect and give you a more detailed answer, if that is all right.
Mr. Straw: I thought that yes was the answer. That was my instinct.
Mr. Tyrie: The Secretary of State is saying that yes is the answer.
Mr. Straw: I said that I would have thought that it was yes, but we will come back to it.
Q 65David Howarth: May I come back to the retrospectivity question and put an example to the Secretary of State? It has been bothering me, and possibly other people. The issue is not what counts as an expense, but who counts as a candidate, and when. This cannot be cured by the commencement date. I shall give the example. Let us suppose that either an existing Member of Parliament or a candidate from another party has already acted as a candidate. What happens when the Bill comes into force? Will it mean at that point that what the person did previously makes them a candidate at that point, so any expenses that they incur from then count as election expenses? It is about not whether expenses before that time count, but whether they have started the ball rolling. That degree of retrospectivity ought to be ruled out.
Mr. Straw: The definition under the 2000 Act, which we are not proposing to change, relates to activities that are for the purpose of any election. It will be subject to further guidance. If the activities are related to the purpose of any election and self-evidently—
Q 66David Howarth: In the past?
Mr. Straw: Hang on a second. For the future. In respect of the past, if the expenses were incurred before the commencement, they would not be covered.
Let us take another example. A candidate for the XYZ party decides to produce loads of flyers saying what a great person he is, and a newspaper that is not dated goes round the constituency giving further and better particulars of what a great person he is. If the expenses of printing and preparing the material were incurred before the commencement date, even if they were dished out afterwards, they would not be covered. However, if the material was dished out after the election date, the expenses incurred to dish them out would be covered.
Q 67David Howarth: But what about the content? Can it make him a candidate—anything before commencement of the Act?
Mr. Straw: The content is a different matter. It depends on a proper reading of the term “for the purposes of the election”. In my example, it is likely that such expenditure would be regarded as for the purposes of the election. On the other hand, if the material is simply saying that F. Bloggs who lives down the street has done something about the bus service, it might not be so regarded. That is a matter of fact.
It is inherent in any system that is not all-encompassing that there has to be a distinction made as Lord Bingham made it. It is just there. The judgments were not that difficult to make in the end, when the 1983 Act was in force. It goes back to 1883. With the additional schedule, which is in here, and the greater clarity provided by the phrase “for the purposes”, it should be all right.
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