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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