Local Government Committee, 07 Mar 2000

Meeting date: Tuesday, March 7, 2000

Official Report 280KB pdf

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Political Parties, Elections and Referendums Bill

We move on to the next item, which is the Political Parties, Elections and Referendums Bill. The Deputy Minister for Local Government is here with Ted Davison, the head of the Scottish Executive local government division 2, who has attended this committee before. I do not believe that Malcolm Lauder from the Scottish Executive's civil law division, who is also here, has attended this committee before. I welcome them to the meeting.

I apologise for running over time. There was a dispute as to whether it was Jack McConnell or Keith Harding who could not work out the figures, and they could not find a calculator, which means that we are a bit late.

We are being asked to approve the proposals contained in Frank McAveety's memorandum, on which we can ask questions. We have discussed the memorandum and at the end of this item, I will ask members whether they agree to the proposals. The motion will then be taken without debate in the Parliament on Thursday.

Thank you, convener, for giving me the opportunity of speaking to the memorandum. I believe that members have a copy of it.

I thank the Minister for Finance for his earlier complimentary remarks. I heard them from outside the chamber. I will not indicate how I responded to them; it is sufficient to say that I welcome Jack McConnell's contribution.

The memorandum covers most of the points on the general background to the Political Parties, Elections and Referendums Bill, which is a Westminster bill. The memorandum also explains the amendments that we are asking the committee to consider and approve. We believe that they affect the devolved area of local government elections.

The bill is the United Kingdom Government's response to the Neill committee's report on the funding of political parties in the UK. It has received the support of all political parties.

The bill deals with similar matters to those covered in the voluntary agreement signed by all the political parties in Scotland just prior to the 1999 Scottish Parliament elections. For the first time, political parties will be subject to controls on how they are funded and the money that they spend during election campaigns and at referendums.

In order to monitor those arrangements, the bill will create an independent electoral commission. The functions of the commission will include reporting on particular elections and referendums, the review of electoral law, the provision of guidance in relation to party political broadcasts, and promoting general understanding of the electoral and political systems.

The bill also provides for the transfer, in due course, to the electoral commission of the functions of the four Parliamentary boundary commissions and of the bodies that determine local government boundaries in England and Wales, that is, the Local Government Commission for England and the Local Government Boundary Commission for Wales. These transfers will not take place immediately. In the case of the parliamentary boundary commissions, the transfer will not take place until after the next review, which will, I think, concentrate many minds. No date has been set for the transfer of local government boundary matters, but that is unlikely to happen before the transfer of any parliamentary boundary commission functions. We are looking at dates beyond 2006.

We believe that the bill should extend into the devolved area of Scottish local government elections. The time might come a few years hence when, with the electoral commission doing the work for all parliamentary elections and for local elections in England and Wales, the Scottish Parliament and Executive of the day might decide that it would make sense for that same commission to take over the review of Scottish local government boundaries as well. For that to be able to happen, we have to make provision in the present bill, because at the moment the matter is reserved. We have not formed any views about whether that would be desirable. All we are saying is that the power should be there for the future. Developments over the coming period will determine the time scales for that.

In the shorter term, people have been concerned about whether there will be an impact on local government legislation and the boundary commission. Before making any recommendations, we will await the report of the Kerley commission. The wider post-McIntosh agenda needs to be considered by this committee and the Parliament. We shall not be taking any view on the Local Government Boundary Commission for Scotland until we have the Kerley report, but transfer of the commission's functions to a new electoral commission will not be among the options for consideration in the short term. All we are putting forward now is a contingency provision for a future Scottish Parliament and Executive.

That is our main proposal. There are three other areas that we believe should be considered today: first, the monitoring of any enactments relating to candidates' expenses; secondly, the provision of advice and assistance to returning officers; and thirdly, the promotion of public awareness of the local government electoral system, whether it be the present one or a changed system in the future.

The final matter that we wish to include in the bill will be the amendment of the legislation covering the conduct of local government elections in Scotland in relation to section 75 of the Representation of the People Act 1983. Interestingly, that section prevents anyone except the candidate and the election agent from incurring expenses with a view to promoting or procuring the election of a candidate unless the expenditure is less than £5 in aggregate. The European Court of Human Rights has ruled that section 75 is in breach of the European convention on human rights in that it acts as a total barrier to someone publishing information with a view to influencing voters and in that the restrictions are disproportionate to the aim of achieving equality between candidates at an election. We therefore seek to amend section 75 in respect of local government elections in Scotland.

The Home Secretary intends to use his bill to address the ECHR's judgment in relation to parliamentary elections and local government elections in England and Wales. Although no local elections are due in Scotland until 2002, there remains the possibility of a by-election at any time. The Home Secretary's bill provides us with a convenient early opportunity to address the ECHR ruling. In line with the Home Secretary's proposals, we would like to amend section 75 to set the limit for local government elections at £50 plus 5p per elector. That should address the considerations and criteria of the ECHR while maintaining equality among candidates.

I hope that the committee will agree that our proposals are a sensible and practical way forward. They will keep open the option of using the electoral commission if and when we decide to consider these matters in future. Amending section 75 of the Representation of the People Act 1983 will allow the Parliament to meet its obligations under the European convention on human rights.

I was interested in what you said about section 75. Who would be the "other" person mentioned in paragraph 9 of your memorandum? Would that be an independent person?

It would be any person other than the candidate and the election agent—a third party—who had an interest and who wanted to intimate to the electors in that ward or constituency certain information about the candidates.

I understand the need to amend section 75 if there has been a European Court of Human Rights ruling against it. However, it seems possible, or even highly probable, that people would be able to drive a coach and horses through the limit on election expenses that is set for the candidates. Could someone have hundreds of friends distribute literature on a third-party basis, which would, in effect, mean that there was no limit on their expenditure?

As the legislation stands, yes. It would be possible to get 500 individuals to spend up to the limit, which at the moment is £5 and under this proposal would be £50 plus 5p per elector. It would be down to the courts to determine whether they were dealing with 500 individuals or with a concerted campaign designed to prevent the election of an individual.

The Political Parties, Elections and Referendums Bill that is before the Westminster Parliament introduces for the first time major controls on third-party expenditure in the UK. Section 75 of the Representation of the People Act 1983 refers only to expenditure incurred in promoting or procuring the election of a candidate, who would, therefore, have to be named. The Political Parties, Elections and Referendums Bill introduces the concept of limits on overall third-party expenditure. If a third party said that they wished to support the Labour party or the Conservative party, they would be limited in what they could spend. That is not covered by section 75 of the 1983 act. However, it would be for the courts to determine whether 500 individuals spending up to the limit set in section 75 constituted third-party expenditure.

As a matter of curiosity, will the Westminster bill be passed before the London mayoral election, in which Ken Livingstone is standing? It seems to me that that would be a good idea.

I doubt it very much.

It was not a serious question.

We could encourage emergency legislation.

Does the bill cover affiliated bodies and central funding for campaigns?

The bill contains provisions that deal with affiliated bodies. There will be a set limit on what parties can spend in the run-up to each election. Anybody else who decides to spend money will have to register with the electoral commission before the election. When they do that, a limit will be set on what they can spend. If, for example, a trade union decided that it wanted to spend a significant amount of money on supporting one party, it would need to register with the electoral commission and a limit would be placed on what it could spend.

Can you confirm that the education to which clause 11 of the bill refers is to explain a voting system that has already been approved by Parliament, rather than to promote a type of voting preferred by a political party or parties?

It is about informing the public about the system, once that system has been agreed. It is not about advocating anything.

So a party could not use the clause to promote a particular line?

No.

I refer to paragraph 5 of the memorandum, on the Local Government Boundary Commission for Scotland. Most of us feel that anything would be an improvement on that commission. Presumably, the electoral commission could operate locally if a future Scottish Parliament gave it the power to do so, so that the exercise would not simply be a case of some guys in London drawing lines on a map.

The bill provides for the electoral commission to set up four electoral boundary committees, one for each of the constituent parts of the UK. Under the electoral commission, there will be an electoral boundary committee for Scotland. One of the commissioners will be chair of that committee and two deputy commissioners will be appointed specifically for the purpose of conducting boundary reviews. I presume that the electoral commission would allot the review of local government boundaries in Scotland to that committee, should the Parliament decide at some point to transfer that function.

If the function were transferred, the electoral commission would be acting under legislation passed by the Scottish Parliament.

I will revert to section 75 of the Representation of the People Act 1983, about which a number of us are concerned. The European Court of Human Rights said that if some citizen knows dark secrets about a candidate, he or she should be able to publish that in the public interest and spend some money doing so. As other members have said, a number of different groups could put forward their own literature saying why a candidate or party was the best. Depending on the size of the ward, they would be able to spend £250 each, so if there were half a dozen of them there could be a significant disproportion in the money spent in the election. The minister has suggested that he is trying to maintain parity. Will he explain that further?

This was in response to where the ECHR had placed us. I recognise this as a point that I raised this morning with colleagues—Malcolm Lauder will elaborate on it—which is that, if a team of folk came together to quadruple the number of people targeting an individual, that could lead to an effective campaign against the individual. I think that there are some safeguards, which Malcolm will mention.

As I tried to explain, the safeguards against joint campaigns are provided for not under section 75 of the 1983 act—Donald Gorrie was correct about that—but under the Political Parties, Elections And Referendums Bill. The bill introduces for the first time third-party expenditure as a statutory concept. If a situation such as Donald Gorrie anticipated arises, other candidates could challenge the expenditure through the courts on the ground that that expenditure came about not because of 25 individuals spending their limit to publish information about their candidates, but through a third-party campaign, which should have fallen under the limits set by the bill. It would be for the courts to determine whether that was the case.

I will correct one point. The section 75 expenditure limit is not all about publishing dark secrets about other candidates. The European Court of Human Rights decision came about after the 1992 general election, in response to a prosecution against Mrs Bowman, a representative of the Society for the Protection of Unborn Children who wanted to publish information on candidates' views on abortion. She was charged with breaching the section 75 limit but the prosecution failed because the European Court of Human Rights decided that the limit contravened the European convention on human rights. This is not necessarily about candidates' dark secrets; it could simply be about informing electors where candidates or parties stood on policy issues.

All the powers that we transferred would be subject to the scrutiny of the Scottish Parliament before they were exercised.

One of the concerns about the legislation is that we would be leaving it to the courts to make decisions on issues that are significant but largely about perception. At the moment, a union can advocate a programme and hope that people will draw the conclusion that a party also has that programme. I understand what Malcolm Lauder is saying about safeguards, but I think that those safeguards might operate more easily in relation to a political party, a trade union or another grouping. They might not operate in a small community where people of some standing in the area spent money advocating an independent candidate. It would be difficult to argue that that was a concerted effort, because no political party would be involved—those people would be individual citizens exercising their rights. However, if people did that in relation to a candidate who was standing under a party banner, it would be easier to say that that was more than mere coincidence.

Do you think that that could introduce the element of unfairness that has been alluded to? It would be difficult for a court to say that an individual who had no party, trade union or group affiliation was doing anything other than exercising their right to promote a candidate, particularly if that candidate had no party affiliation. Such circumstances would, however, be significant in local government elections.

Malcolm Lauder will touch on the framework. Individuals have the right to raise issues about candidates in their localities. The figure that is mentioned in paragraph 9 of my memorandum is a reasonable sum that will ensure that an individual will not be punitively dealt with in terms of the scale of the resources that are deployed against them as a candidate. Depending on the popularity of a candidate, a stream of folk might queue up to offer to fund from their own pockets £150 or £200 of expenditure. I have not yet met an elected member in the areas that I know who reached that level of popularity, but perhaps others have. The issue is whether it is possible to intervene at the right stage.

Malcolm will respond to what Johann Lamont said about independent candidates—I have not given much thought to that. We must get the balance right and people must be able to say why they are not attracted to a candidate, no matter how uncomfortable that might be for the candidate.

It is important to say that, in terms of electoral legislation, all candidates are in effect independent. Electoral legislation does not recognise political parties, other than in the recent elections to the Scottish Parliament and the European Parliament. The premise behind the Representation of the People Act 1983 is that candidates are individuals. They might represent political parties, but they are treated as individuals.

The Political Parties, Elections and Referendums Bill recognises the fact that the vast majority of spending in elections in the UK is done by political parties and it introduces limits to what the parties can spend on elections. There must also be some control over what individuals spend in supporting candidates or parties at elections. The limits would otherwise be easily surmountable by channelling funds through a third party. That is why there is a set of limits on third-party expenditure. Whether those limits sit comfortably with independent candidates remains to be seen.

It will be for the electoral commission—when it is established—to monitor how the arrangements in the bill operate in practice. Section 75 deals with individual candidates; it allows for people to support local independent candidates if they so wish, within limits that will not undermine the general principle that all candidates should be treated fairly and equally.

I am not suggesting that there should be a system that does not offer the opportunity for people to comment on candidates. I am concerned that the way in which that is done might discriminate against those who organise themselves into political parties or visible organisations. It is easy to prove that there is a theme running through a series of statements from individuals when they are all members of the same union and their material is remarkably similar. In the case of a more randomly organised group that, nevertheless, has its own political view, it would be more difficult to establish whether people are abusing the funding system.

The system protects candidates who are not members of political parties. I think that it is fair that there should be a cap. People should not be able to benefit from the fact that there is a huge amount of external money that can be fed through a local organisation. However, it seems that the formula would allow people with a common interest to come together. The courts would find it much more difficult to deal with that than if the interest group was a political party, a trade union or some other big organisation.

I accept that it is more difficult to prove that there has been a concerted campaign by a group of independent individuals than by a group of individuals within an organisation. I cannot argue with that. Ultimately, it will be for the courts to determine and for the prosecuting authorities to investigate whether that has happened.

If 20 leaflets promoting a candidate suddenly appear in an electoral ward, and there are suspicions that they may have been produced by a concerted campaign, the appropriate investigations would have to be made. I do not see how one could set limits and then set different criteria for adhering to those limits for different types of candidate. The same limit, with proper resources for investigating breaches, would have to apply. That would be one of the functions of the electoral commission when it is up and running, although not necessarily for local government elections. We are also looking to take an enabling power over the monitoring of local government expenses, which are not monitored at the moment.

Still on section 75, action can be taken against a candidate or agent who authorises expenditure that goes beyond allowable election expenses, and the election agent could be liable to prosecution if he or she has knowingly allowed that to happen. What would happen if an election agent spent within the limit and another person spent further money in support of the candidate? It would be difficult to prove that that individual was working in concert with the agent. I recognise that, in theory, it could be said that the election agent had authorised the expenditure. In practice, however, it would be difficult to prove a link between the election agent and an individual who was spending money in that way. Could the legislation tackle that? The mere appearance of a leaflet would not prove that the election agent had authorised it.

You are correct. That would be difficult to determine, and there is nothing in the legislation to prevent somebody from subverting the system in the manner that you have described.

One could not buy a lot of leaflets for £5, but one could for the new limit of £50 plus 0.5p per elector.

That is right. The European Court of Human Rights did not determine that section 75 itself was incompatible with the convention. It determined that the £5 limit acted as a barrier to anyone expressing their right to publish information on the candidates. The general aim of section 75 to provide some balance between candidates was a legitimate aim according to the European Court of Human Rights. We have not considered completely redrafting section 75 to deal with the kind of position that has been described, and neither has the Home Office in its study of parliamentary and local government elections in England and Wales.

I am not sure how to get round the problem. If there were two separate limits, there would always be a need to connect the two to prove that a breach had occurred. There is a limit on what a candidate and his agent can spend to promote their candidacy. There is a separate limit on what a third party can spend in influencing voters on how to vote for the candidates. While those two limits are in place, it will always be difficult to determine whether somebody has tried to breach the rules by using the second limit. I do not know how legislation could tighten that up. It is not something that has yet been considered.

Minister, I draw your attention to section 6 of your memo, which deals with candidates' expenses at local government elections. There may be a problem in the drafting. The paragraph contains a health warning, which also appears in some of the other paragraphs. We are told that the provisions will be

"subject to the control of the Scottish Parliament".

Paragraph 6 goes on to say that

"it will be for the Scottish Ministers to decide whether or not to introduce monitoring arrangements for local government elections in Scotland".

Should not the health warning appear after that, too?

Yes.

Thank you. That can be changed, then.

Okay, we have had a good bash at that. Is the committee agreed on the proposals in the minister's memorandum?

Members indicated agreement.

I would like to put on record my thanks to Malcolm Lauder for fielding the hard, technical questions that Jack McConnell said that I should have fielded.

Yes, that has been noted.

You might want to ensure that he is with you all the time.

Absolutely.

Thank you.