Question for Short Debate (Lords) on Local Government Elections - Sep 7

Lord Greaves 

To ask Her Majesty's Government what assessment they have made of whether the law relating to local government elections is in need of improvement or clarification.

Lord Greaves (LD) 

My Lords, I want to concentrate on the offence of treating, which is a corrupt practice under Section 114 of the Representation of the People Act 1983. Subsection (2) says:

“A person shall be guilty of treating if he corruptly, by himself or by any other person, either before, during or after an election, directly or indirectly gives or provides, or pays wholly or in part the expense of giving or providing, any meat, drink, entertainment or provision to or for any person—(a) for the purpose of corruptly influencing that person or any other person to vote or refrain from voting; or (b) on account of that person or any other person having voted or refrained from voting, or being about to vote or refrain from voting”.

Subsection (3) extends the offence to:

“Every elector or his proxy who corruptly accepts or takes any such meat, drink, entertainment or provision”.

This wording has been passed down from the Corrupt and Illegal Practices Prevention Act 1883. The last case law appears to be more than 100 years old. My reason for raising this is to suggest that this 19th century law as it stands is antiquated, uncertain and not fit for purpose in the 21st century.

Over half a century ago, when I learned the trade of running election campaigns, treating was taken very seriously. Candidates and agents were firmly instructed to make sure that any food or refreshments—in committee rooms, for example—were strictly for bona fide party workers and a small contribution should be asked for. Candidates were told to be careful about buying rounds in the pub during the campaign. But the practice has now grown of providing free food, including hot dinners, both in walk-in committee rooms and at public meetings addressed by candidates and their supporters before and during elections, notably in places with large numbers of electors of south Asian heritage. My immediate interest comes from activities carried out by two Conservative candidates in Pendle in the county council elections in May this year.

In brief, the events concerned were that four public meetings were held before the formal four-week election period started but after the candidates had been announced in press releases and the local press, on social media and in leaflets distributed in the area. At these meetings speeches were made by the candidates and other persons in support, including councillors and the local MP, urging people to vote for them. A hot dinner was then provided to the people present, free of charge, including curry and rice and soft drinks. In total, at least 1,000 people attended these meetings, most of them electors in the two divisions. Other than a small number of party officials and councillors, all the people present were Asian men. We estimate that the cost of providing the accommodation and meals and associated publicity, including leaflets, would not have been less than £3,000, and possibly rather more.

I made a complaint under Section 114 and provided a dossier of evidence, which the Lancashire police investigated, and I have no complaints about the work they put into that. I quote the conclusion from a letter that the investigating officer kindly sent to me:

“Unfortunately the decision has been taken that the matter will not be prosecuted due to a lack of evidence. It was deemed that the evidential threshold required to present the case to the Crown Prosecution Service for them to consider charges had not been met”.

He goes on to say:

“As I think we alluded to when we first met, this particular offence presents some unusual hurdles in terms of prosecuting”—

noble Lords will probably realise that I knew more about it than the police did at the time—

“and I found myself hitting these hurdles at regular intervals when looking at the matter through evidential eyes. I agree with your initial observation some three months ago, that perhaps this is an area of law that requires some modernisation”.

The Law Commission agrees. In its report Electoral Law: An Interim Report, published in February 2016 and produced together with its Scottish and Northern Irish counterparts, it proposes in Recommendation 11.3:

“The electoral offence of treating should be abolished and the behaviour that it captures should where appropriate be prosecuted as bribery”.

This follows a discussion about a similar situation which was considered by commissioner Richard Mawrey QC in the Tower Hamlets petition. It challenged the election in May 2014 of Lutfur Rahman as mayor of Tower Hamlets. Similar difficulties arose at that time over the offence of treating, described by commissioner Mawrey as,

“surely an obsolescent if not obsolete concept in the modern world”.

The treating part was then dropped. The Electoral Commission in its response to the whole report said:

“We very much welcome these proposals and believe that they will address many of the difficulties with the current law. It is important that the UK and Scottish Governments now agree that the Law Commissions can begin preparing draft legislation to implement these changes”.

Yet the problem remains, and I am not in any way suggesting that it is a problem for just one party. From inquiries I have made around the country in recent years, it is clear that putting on quite large amounts of free food at public events is a common practice across the parties in areas with large numbers of Asian voters. Of course, outside elections this is not unlawful. It is when it is done in connection with the promotion of candidates that it is at the least questionable. They are practices which have been imported into this country from abroad. The fact that it is happening will raise eyebrows in those other parts of the country where such practices would be regarded with horror. Imagine a candidate hiring a village hall and inviting the entire population of the village to a free dinner on the condition that the villagers listen to speeches telling them why they should vote for him or her. They would, I suggest, soon be up before the beak.

The Electoral Commission in its candidates guide states that,

“treating requires a corrupt intent—it does not apply to ordinary hospitality”.

What is meant by ordinary hospitality? Presumably if a neighbour calls on a candidate at home, it is okay to provide a cup of tea or even a full tea if they are friends who ordinarily do that, but not to invite the whole street for the first time three days before polling day. So is a hot curry dinner for a few hundred people “ordinary hospitality”? Among much ambiguity in this law, the interpretation of the undefined words “corrupt” and “corrupt intent” appear to cause problems. They imply an intention to affect the outcome of the election, but this is far from the clarity that good law requires.

Returning to the hot curry dinners targeted at Asian electors, the College of Policing authorised professional practice manual, Policing Elections—Investigating Electoral Malpractice includes the following:

“Cultural factors can affect this offence in that among many cultures the provision of refreshments is considered to be socially acceptable, and it would be perceived as an insult should refreshments not be provided”.

This seems very close to suggesting that electoral law is different according to the composition of the local community. If you live in a mainly indigenous village or a mainly white town such as Colne, where I live, and you put on free meals for voters, you will be locked up. If you live in a strongly Asian area and provide those meals for Asian electors, or even just for Asian men, as in Pendle, MPs and councillors will turn up and you will get away with it. I wonder whether this advice from the College of Policing has government support and should perhaps now be reviewed.

The law on treating is not fit for purpose. It is antique and it is not clear what it means. It is not clear that a law that was designed to prevent candidates providing food, drink, entertainment and provisions—whatever that means—to voters in the days of Mr Gladstone is able to deal with modern phenomena such as piles of chapattis in committee rooms open to the public to walk in and eat, and hot curry dinners open to anyone who walks in. Above all, candidates and agents in all kinds of areas need to know clearly where they stand with the law. I am not an election agent at the moment but I declare an interest, as I usually am every year. With tongue in cheek, I say that if the provision of hot dinners to voters on a large scale is now acceptable in electoral law, the nature of elections in this country might change quite a lot. I look forward to the Minister’s reply.

Lord Rennard (LD) 

My Lords, my noble friend Lord Greaves knows a great deal about elections and how they are fought and won. We have campaigned together in a number of them for almost exactly 40 years, since he came on behalf of what was then the Association of Liberal Councillors to assist in a couple of council by-elections in Liverpool in October 1977. Around that time, I read all my noble friend’s many booklets about fighting local elections and learned a great deal from them, but I learned nothing about the practices which he has just described. He has raised serious issues about electoral law and what he calls treating, which in plain English we know to be better described as bribing the voters. He rightly says that breaches of the spirit, if not the letter, of the law may occur in any party.

Many years ago, I heard of a branch of the Liberal Party that refused to undertake any of the accepted electioneering methods of canvassing and polling day organisation. Instead, it laid on a huge tea with free refreshments in the village hall on polling day, and it was customary for people to visit it after voting. Whether this affected the results, I do not know, but it should not happen. Electoral law should be more explicit about the provision of refreshment to voters and there should be proper policing action to prevent what appear to be major abuses of the law, as just outlined by my noble friend. Perhaps the Minister could share with us the latest thinking about how the Government may now attempt to implement some of the recommendations outlined in the recent review of election laws by the former chair of the Conservative Party, Sir Eric Pickles, since it first responded last December.

In relation to the overall question, I hope that the Minister will agree that there is not a massive amount of cheating in local elections, or in any form of election, in this country. For my part, I accept that we can act to reduce its prevalence, even if it is small, and that fraud would possibly be more common if it were more widely known how easy it can be. It is also important, however, that any action to prevent or deter electoral fraud is proportionate. We must recognise that any measure which might restrict the capacity of people to vote legitimately must be considered very carefully and be balanced by measures which make it more likely that people who are properly entitled to vote are enabled to do so.

My experience of suspecting personation was when I believed that the Liverpool Militants were undertaking the practice when I organised elections there in the 1980s. I was suspicious because of the way in which I noted that Militant supporters would call at doors and, if anyone said they were not voting, they left immediately without argument—the Militant people tended to be rather argumentative. In contrast, other party workers would plead with such people to turn out and vote. But in those Liverpool elections, turnouts were perhaps high because of the approach of the Militant supporters, as they identified names of people who would not be going to the polling station themselves, who may then have had votes cast on their behalf.

The noble Lord, Lord Alton, then a Liverpool Liberal MP, told me how he saw people going into polling stations apparently with names and addresses written on their wrists. Some years later, the noble Baroness, Lady Gould of Potternewton, told me that her investigation into the Labour Party in Liverpool when she was her party’s national organiser confirmed that personation was indeed the tactic of the Militants.

It seems to me, therefore, that a greater police presence at polling stations would have helped, together with a greater number of staff at the polling stations to ask the questions allowed for by law about whether or not people have voted already or are who they say they are. When I attempted in the Liverpool Walton by-election in 1991 to get presiding officers to ask the statutory questions of people turning up to vote who had died or said that they would not be voting, I was told by the returning officer that he simply did not have the staff to do what was legally required of him when I arranged for our agent to make the formal request for him to do so.

However, I do not believe that these tactics are common. Last year the Electoral Commission identified 19 allegations of personation in the EU referendum, some of which proved not to be personation at all, out of more than 33 million votes cast. This is in line with statistics from other national elections and does not in itself suggest that there is a widespread problem with personation requiring measures which may deter people from voting when they are entitled to do so. Voter identification is required in Northern Ireland in order to deal with problems of personation, and it is said not to have reduced turnout, but political passions run strongly there and such measures are perhaps less likely to deter voters in the Province than in Great Britain.

There should be greater awareness of the penalties for personation, greater police presence at polling stations where it may be suspected, and more resources for presiding officers to ensure that the statutory questions can be put. In this age, it should not be difficult to provide presiding officers with details of people who are known to have died, and if a mistake has been made and a supposedly dead voter turns up, they can be provided with a tendered ballot paper, as happens when a second person tries to claims the same vote as one cast earlier.

If any form of ID is ever required, a suitable form of it must be provided free of charge. If poll cards were sent in unmarked envelopes, they should suffice, because it would be hard to steal such a poll card and then impersonate someone. Lost or stolen poll cards could be reported and anyone seeking to vote on the basis of one could be questioned at the polling station. However, there is a danger that the proverbial sledgehammer is provided for the nut, and I could not consider supporting any measures requiring evidence of ID at polling stations without us also addressing the much bigger issue of the many millions of people missing from the electoral registers.

The Government’s position appears to be that people should have to opt in to the right to vote, despite the fact that Parliament has specifically preserved the principle that failing to co-operate with the electoral registration process can be subject to a fine or civil penalty. You do not have to opt in to the right to benefit from the emergency services, nor from many other things approved by law and provided by government, so you should not have to opt in to being able to vote. If you have the right to vote, the process should be automatic and making it so would be a great improvement to our democracy.

Finally, I raise the issue of postal voting. It seems legitimate to question whether a reason should be provided for voting by post rather than going to a polling station. Some years ago, I was responsible for a change in postal vote regulations requiring that the signature of the voter accompanying the postal vote matched the signature on the form applying for the postal vote. I hope the Minister might look rather more carefully than the Government have so far at seeking to amend the declaration to be signed by the voter.

In my view, the declaration should state that: the ballot paper has been completed only by the person entitled to complete it; that that has been done, together with the sealing of the ballot paper in the envelope provided, in conditions of privacy; that the envelope is being returned directly by that person to a post box, the electoral registration officer or returning officer, or a polling station on polling day; that exceptions to those principles should be made only for people who require assistance from someone such as a carer or as is necessary on grounds of disability; and that, in any event, no candidate or representative of a candidate should be involved in the process of returning ballot papers.

Lord Tyler (LD) 

My Lords, my intentions in taking part in the debate are dual. First, I want to endorse and support the concerns expressed by my noble friends Lord Greaves and Lord Rennard. But secondly, as always, I look forward to the Minister’s contribution with great interest; that is my principal reason for being here. I plead with him to adopt his now-usual practice of going off-piste. I do not know whether that expression was used in last night’s debate on the Financial Guidance and Claims Bill, but I was told that the Minister was particularly helpful to the House when he left his script. At one point, he said:

“I return to my script”.—[Official Report, 6/9/17; col. 2050.]

After that, things became less interesting, so I hope that he will adopt his previous attitude this afternoon.

I am reminded by my colleagues’ contributions of my own campaigning experience. It is important to recognise that no parties have found it easy to get the clear guidance they require on the issue of treating. I recall one of my first campaigns in Cornwall; I am not sure whether it was the successful or less successful of my early attempts to get elected to the House of Commons. On arrival at a small village on one of those wonderful Cornish hills where one went in at the first floor, the committee room seemed very quiet. There was nothing much going on and one rather sleepy person ticking some things off. I said to my wife, “It doesn’t look very busy here”, to which the sleepy individual replied, “You wait ‘til you see what’s going on downstairs.” Downstairs, seven or eight people were busily producing pasties and putting clotted cream on saffron cake. The significance of it was that they were not treating the electorate, because the two essential credentials for anybody applying for refreshment were that they had already voted and would help with knocking up voters later. Treating helpers is still a rather vague issue. I have not been so well-fed on the campaign trail since then, and indeed have never had to succumb to so many cups of teas—but in Cornwall in those days, one had to. One was always offered a cup of tea but not always the rather necessary forward motions that were required thereafter.

There is a very serious issue which I know the Minister understands: the coming together of a number of concerns about the electoral process, electoral law and the reputation of the whole of our democracy. I know the Minister shares our views on that because we have had many such discussions. The issue that my noble friend Lord Greaves referred to may be a comparatively small part of the overall picture, but at a time when Parliament and the body politic are having a reputational crisis following the referendum—and with the current state of interest taken by the public, particularly young voters, in how they are represented and, frankly, how for the past 10 years the media have approached the whole process in which we are engaged—there is a crisis. It is not good enough to say, “Well, we’ll get round to this one day.”

I refer to the answer that the Minister gave to my question yesterday. I asked, rather naively, whether the Law Commission report would result in a response from the Government,

“soon, shortly or in due course”.

In his inimitable way, the Minister said:

“It is more likely to be in due course”.—[Official Report, 6/9/17; col. 1951.]

It is now quite a long time since the Law Commission made important recommendations, to some of which my noble friend Lord Greaves referred. It was in February 2016. At the time, there was a specific recommendation that we needed a single electoral law. That is particularly appropriate given the recent experience of the Conservative Party with the differing treatment of national and local campaign expenditure. The Conservative Party itself expressed considerable concern back in June at the way in which two quite different statutes were involved in the process, and the lack of clarity and difficulty that all involved had with that.

The Minister, who I suspect is on our side on this, must somehow persuade his colleagues not just in the Cabinet Office but in No. 10 that, despite all the pressures from Brexit—indeed, perhaps because of them—Parliament must be given an opportunity to look holistically at bringing the electoral law up to date. The example that my noble friend gave is but one of many that cause media, public and local concern. The Minister is an adroit political manipulator and influencer in our curiously cumbersome political system and I beg him to do everything he can. He has been so effective in the past in getting people to take issues of this sort more seriously and give them greater priority. Yes, of course Parliament will have a full agenda but that does not mean that we cannot do anything else. The result of the efforts on Brexit and the extent to which the public are prepared to accept it may depend on the reputation of our political system, local and national. I hope that the Minister will be able to give us some comfort that these issues are not being swept under the carpet but will be addressed with the priority that they require and deserve.

Lord Kennedy of Southwark (Lab) 

My Lords, I start by thanking the noble Lord, Lord Greaves, for tabling this Question for Short Debate today. He raises an important issue, and the short answer to his Question is of course yes, on both counts: the law on local government elections needs improving and clarifying in many areas.

I agree with almost everything said in the three previous contributions from the noble Lords, Lord Greaves, Lord Rennard and Lord Tyler. They are experts in elections and we should listen to what they say carefully. In his remarks, the noble Lord, Lord Greaves, concentrated on the offence of treating. These are serious matters and I agree that the provisions need urgent updating. As he explained to the Committee, the matter that he referred to has been through the due process and the evidential threshold has been determined not to have been met. But that does not mean that important points have not been raised, and action should be taken on the whole issue of treating and whether the law is adequate. Some disturbing comments were made about curries, and other things, which were not at all good.

The noble Lord, Lord Rennard, made important points about difficulties and problems in various elections. The Labour Party got itself into terrible difficulties in Birmingham over postal vote fraud, and the individuals there were properly prosecuted. That was a shameful episode and people were properly dealt with there.

I was appointed to my first job in the Labour Party in 1989 by my noble friend Lady Gould of Potternewton. She then promoted me in 1990 and sent me to Coventry to deal with Militant. I remember her telling me in her office: “Just go and get them, Roy”. Off I went, and I hope that I dealt with them quite effectively. When I came into this House seven years ago, my two sponsors were my noble friend Lady Gould of Potternewton—my first boss in the Labour Party—and my noble friend Lady McDonagh, who was my boss many years later. I very much enjoyed working with both of them.

Many years later, as a senior official of the party, I authorised the prosecution of the Conservative Party candidate who had stood for a council election in Slough. When I first got the phone call from the Labour agent there, I was a bit sceptical. The Labour Party had lost the safest Labour ward in Slough to the Conservative Party and that guy wanted to come and see me. I agreed and he came in with a pile of papers to show me all the applications to register to vote. Then he showed me the houses, and most of them were derelict; nobody lived there at all. Of course we had all the ballot papers checked. It ended up in the courts and we were able to show that it was completely fraudulent activity and the people were sent to prison—quite rightly there, too. Again, we were able to show that it was not right. Picking the safest Labour seat in a borough was probably the daftest thing they did.

Going on to more general remarks, yesterday the noble Baroness, Lady Humphreys, asked a Question about the Electoral Commission in terms of the Welsh language. I asked the noble Lord, Lord Young of Cookham, what the Government were going to do in respect of the Law Commission and the work they are doing looking at the law. I am very much of the opinion, as other noble Lords are, that our law in the round needs improving, clarifying, redrafting and consolidating for elections. The Government really must find some parliamentary time in the next couple of years for this.

In many areas, our electoral law is not fit for purpose. We have to deal with that; our democracy is at stake here. The law is spread over various Acts, statutes and codes. It has been bolted together over many years and is in a complete mess. All the parties in this Room have been in government in recent years and we have all contributed to that. We are all to blame in some measure for where we find ourselves today, and it is not a good place. I have other general remarks to make but, as I said, the Government must find some parliamentary time for that. We need consolidated legislation that covers elections, referendums, donations, registration of parties and electoral registration, all in one place so that we all know exactly what is going on. I have no idea how many Acts or parts of Acts are still in force over elections. Perhaps the Minister does. I expect that it is a great many.

If we look at our experience in recent years and at changes in technology and campaigning, we can see that the law is in need of extensive updating and, ideally, future-proofing. I accept that that is much harder to do that than to say. For example, we need to look at the use and manipulation of data in campaigning, which is a huge issue. More should be done to clarify what returning officers should and should not be doing. The Electoral Commission needs looking at again and reforming. It needs more teeth in some areas. It should focus on clearly defined issues and doing things. It should probably do a bit less commenting and voicing opinions, and take a bit more action in certain areas. We need a much tougher focus on getting the electoral registration process right and on having the powers to make sure that the service provided is fit for purpose everywhere and that the EROs and the commission are using the powers they have.

Electoral registration and the desire to get people on the register needs reinforcing. The Government have not always seemed as enthusiastic about doing so as they should. It could be suggested that they have been quite partisan in the recent past. We may hear from the noble Lord, Lord Young of Cookham, that they listened to the advice and guidance of the Electoral Commission, which is very good, but they do not always do so. They certainly did not when they removed a number of voters from the electoral register a couple of years ago in looking at the boundary review. Having mentioned the boundary review, perhaps the Minister can update us on that because all the gossip down the other end of the building is that it is dead in the water. Members of all parties down the corridor are all telling me that the Government are desperately trying to find a way to end this review. It may be that that needs legislation. If it does, let us get on with it because it is a complete waste of public money if in fact the Government intend in some way to end the review and go back to having 650 seats.

I have a few other little comments to make before I finish. The nomination process needs clarifying. There are all sorts of issues there. We have to deal with sham nominations. We may have dealt with the Liberal Democrat problem we had a few years ago but there are still issues with sham nominations. When I was an electoral commissioner, I was one of the first political commissioners. We had an issue with a disgruntled Tory candidate attempting to use the old Tory torch logo. We said, “No, it is not your logo”, and got into a discussion. In the end, we stopped him but he believed he could just walk off with a logo that belonged to the Conservative Party and stand as some sort of independent Conservative. That sort of thing goes on all the time and it was good we did that work there. The sham candidates and imposters need to be dealt with. The rule itself is clearly not quite there.

The polling day process is still not what it should be. We need some clear guidance and a single set of polling rules to apply across all elections. There is also the issue of assisting voters to the polls and actually voting. Very elderly people need to have their vote protected, in being able to get to the poll and vote. Equally, they may need assistance. That is a very hard thing to do properly but it also needs dealing with. I would also like to see some standardised rules in respect of counts. It is not always the case in some of the counts we see across the country. I know that we have electronic counting in London and in the Scottish local elections, but it always amazes me that you can normally go to a count for a council or Parliament and they sit there with pens and paper, and get a result really quickly. In the GLA they were sitting there days later. I do not know how you can deal with it, but counting should be looked at.

I just had those few comments to make. I know that the Minister probably cannot respond to all the points raised here today but I am sure he agrees with many of them. I look forward to his comments and if he cannot respond now, maybe he could do so in writing afterwards.