Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
(10 years, 11 months ago)
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Lord Rooker
“Application in Northern Ireland
This Part shall not apply to Northern Ireland for as long as it is governed by a statutory power sharing executive based upon the Good Friday Agreement.”
Lord Rooker (Lab)
My Lords, this amendment would remove Northern Ireland from Part 2 of the Bill. Before I begin my brief remarks, I welcome the noble and learned Lord, Lord Wallace of Tankerness, to the Front Bench and send my sincere best wishes to his colleague—I think we would all do that—for a speedy recovery from his operation. We look forward to his early return.
There are many disadvantaged groups in Northern Ireland. To that extent it is no different from anywhere else but when one looks at representation, there is no Protestant working class representation in Westminster. Your Lordships’ House does not have the benefit of either Sinn Fein—which gets elected but is not represented at Westminster—or the SDLP, which gets elected but does not use this place. This means that we never get the whole story from Northern Ireland, from either side of the divide. I am no expert and my 52 weeks as one of the last direct rule Ministers does not make me one. However, I did collect some messages: fairness and equality are paramount.
We reminded ourselves last week of how young democracy is in South Africa, at 19 years. It is a lot younger than 19 years in Northern Ireland. I recall being at a civil society reception. At the time I had ceased being the Minister but was still the spokesman in this House; it was obviously before the change of Government. I was asked what the approach of the new Prime Minister would be. Would he take as much interest as the previous Prime Minister had when they got devolution back? They would still want some help and some tender loving care, but not nannying—no one is saying that at all. People are prepared to learn from their own mistakes. Progress has been made. However, it was known then, before and after devolution came back, that it was a fragile situation. It is still a fragile situation today, and will be for many years to come.
I was reminded this week by boxes in the dark areas of my home of the advice given to the ministerial team in 2005, when we arrived after the election. I will not quote from it because I would be asked to provide it. However, the central message, beside minding the language one used, was about this issue of community working across the divide, in which I include the divides of rural and urban, blue collar and white collar, and working class and middle class—all of which overlaid the divide of religion and the issue of two member states sharing one island. In fact, I wish the politics were divided down class lines and other factors rather than history and religion.
I want to put to the House five short quotes from A Shared Future which was first published in 2005, but the points are as relevant today as they were then. On building a shared future, it said:
“The potential of addressing the problems of disadvantaged communities will significantly depend on closely aligning community development and community relations work. Community development in disadvantaged communities is largely delivered through the work of the voluntary and community sector that has made a powerful contribution to the achievement of better relations between communities”.
Another paragraph, about investing together, made the point that resourcing the voluntary and community sector,
“identifies the importance of the community development work of the sector and the contribution this work plays to building community cohesion. It is important, therefore, that the capacity of the voluntary and community sector to deliver community development is maintained and reinforced”.
It went on:
“In recent years there has been considerable focus on the difficulties of alienated working class communities. It should not be assumed that the needs of protestant and catholic communities, whether urban or rural, can be met through similar approaches to community development and community relations work. The needs of the two main communities—urban and rural—will be different and, therefore, different approaches … will be required”.
Talking about action at community level, A Shared Future said:
“There is a clear recognition that the voluntary and community sector has made a powerful contribution to the achievement of better relations between communities. It is important that that role is underscored, especially in the most disadvantaged and interface areas”.
My final quote from A Shared Future makes the point:
“Government also recognises the contributions made for example by employers, churches and other faith-based organisations, minority ethnic groups, trades’ unions, children’s organisations, women’s groups, health organisations and youth organisations. These organisations continue to have a role to play in helping build relationships across Northern Ireland. These contributions will be important as Northern Ireland moves forward to a shared society”.
Virtually all those groups I have just mentioned, one way or another, are involved in campaigning, however one looks at it. Looking at the situation from a Northern Ireland perspective, equality legislation is dealt with slightly differently from the rest of Great Britain. I refer, of course, to Section 75 of the Northern Ireland Act. It is paramount that the needs of that legislation are watched like a hawk by all the groups in Northern Ireland. Indeed, when I was a Minister there, it was watched by Ministers and we were held to account.
It is crucial—others in this House will know the operation of this much better than I do—that that legislation applies to Northern Ireland in a way that it does not apply to England, Wales and Scotland. There is an insistence there, from a legal point of view, on the promotion of equality of opportunity between persons of different religious beliefs, political opinion, racial groups, age and marital status, between men and women, persons with a disability and without, and persons with dependants and without. There is a meticulous approach to this and people campaign about it. I do not know how a charity or other campaigning group would be able to pursue campaigning on Section 75 around an issue that arose during the year before a general election. I am a bit concerned about that because it seems to have been ignored by the drafters of the Bill.
Baroness Blood (Lab)
My Lords, I declare an interest as patron of many charities in Northern Ireland, but mainly as a campaign chair of the Integrated Education Fund, which I shall come back to.
I strongly support this amendment, from my noble friend Lord Rooker, which I consider to be a crucial amendment to the lobbying Bill. The amendment acknowledges the unique circumstances in which Northern Ireland is governed by the statutory power-sharing Executive. I also want to take this opportunity to highlight how, in my part of the world, the work that charities and community groups carry out has never been more important.
As many of you already know, I am a proud Belfast woman and I am especially proud of how far Northern Ireland has come and grown over recent years. Since the Good Friday agreement, I have watched a fledgling Northern Ireland Assembly climb many mountains during its power-sharing journey. Throughout that journey, the power-sharing Executive have had the support and engagement of the many charities and community groups working in Northern Ireland. Before the signing of the Good Friday agreement, charities and community groups played their part in holding the front line. My standing here today and being in the position of talking to you is very much a symbol of that, as I was part of that grass-roots community movement. We were ordinary people, working on the ground, campaigning for a better, more productive and ultimately more peaceful Northern Ireland, and I believe that all of us together played our own small part in helping to bring about huge changes. Often very difficult work is still being carried out today by the different charities and voluntary groups; I could give noble Lords many examples of victims’ and children’s issues, equality issues and issues about the aged, but I am not going to take up the House’s time by going down that route. That work is relevant and vital in helping to support the work of the Northern Ireland Assembly.
Change is not easy, and democracy is not easy, and I would urge that in Northern Ireland many charities and community groups allow vital spaces for engagement, where voices can be heard. The importance of this cannot be underestimated; without these outlets, fear and frustration can only fester and grow. In many different ways and on many different platforms, I believe that these campaigning groups, referred to by my noble friend Lord Rooker, have enabled voices to be heard. A lot of the time, it may not be what our politicians have wanted to hear, but that is yet another reason why the work is so important. By listening, supporting and highlighting the voices of groups that might not otherwise feel connected in any way to the governing of the society in which they live, these organisations continue to play a vital role. This work and contribution of the community groups has helped to develop and bring about new policies designed to create a better Northern Ireland for all of its citizens.
As I have already said, this amendment highlights the special circumstances of Northern Ireland—a Northern Ireland governed by a statutory power-sharing Executive based upon the Good Friday agreement—and my noble friend Lord Rooker has already referred to many issues around that. The work of charities and community groups helped to lay the foundations on which the Good Friday agreement was built. I could give noble Lords many examples of all the charities with which I am involved, but I shall give an example of the one in which I am most deeply involved—the work that is done by the Integrated Education Fund. We do things in two ways. First, as campaign chairman, I know that we fundraise to enable schools to be opened to educate children and young people of all faiths and no faith to sit together side by side every day and to learn together. Secondly, we lobby our elected politicians to try to bring about policy change in our education system to lead to a shared future, which 90% or 95% of the people in Northern Ireland crave. No integrated school has ever been established by the system; it has always been established by parents who want to see this change. That work was crucial then and remains crucial to this day.
I began my speech by highlighting the fact that I support this amendment, and I urge the Minister to do the same. Without it, the Bill would have an immense negative impact on the work of charities and the voluntary sector in Northern Ireland.
Lord Brooke of Sutton Mandeville (Con)
My Lords, my intervention will be brief. When I came into the Chamber, I did not imagine that I would find myself on my feet so soon. I have long admired the noble Lord, Lord Rooker, through a series of mutual experiences over 30 or 40 years.
The noble Baroness, Lady Blood, will recall the run-up to the ending of the first programme of Making Belfast Work. The right honourable—and now Sir—Richard Needham, who was then the Minister responsible for the programme, discussed with me whether it would be sensible to bring the communities, particularly those in west Belfast, together at Hillsborough on a social occasion, where the total agenda would be what we should do at the end of the first four years of Making Belfast Work, particularly on community relations. It was a high-risk thing to do, and we went into it slightly quaking. I cannot remember if the noble Baroness, Lady Blood, was there, but she is nodding, so I think she probably was and I would have expected her to be there. I hope she would agree that the evening was a tremendous success in terms of the meeting between the communities on both sides. I also greatly admire what she is doing in the context of integrated education.
I return to the first thing that the noble Lord, Lord Rooker, said about community development, which I regard as being an absolutely key part of the process of reconciliation within Northern Ireland.
Lord Harries of Pentregarth (CB)
My Lords, I am glad that the noble Lord, Lord Rooker, has raised the specific case of Northern Ireland, which he did in such a deeply felt and powerful way.
The Commission on Civil Society and Democratic Engagement, which I have the privilege to chair, carried out two consultations in Northern Ireland—one before our first report and one before our second. It would be fair to say that, as a result, we became not just concerned but seriously disturbed by the possible harm that the Bill as it now stands could do in Northern Ireland. Consequently, we put forward a number of recommendations, reflected in later amendments which I am not going to mention now; I will speak to them when we reach them. However, I hope that the Government will pay particular attention to what the noble Lord, Lord Rooker, said, especially about the manner of government in Northern Ireland, which is so different from that in Wales, Scotland and England. It may be that the Government will bring forward quite specific amendments—whether or not they accept the view of the noble Lord, Lord Rooker—in addition to those which the commission will be putting forward.
Baroness Lister of Burtersett (Lab)
My Lords, I do not have the same experience as my noble friends who have already spoken so powerfully about the dangers of this Bill for Northern Ireland, but I was privileged to be a member of the Opsahl commission on the future of Northern Ireland about 20 years ago. As part of that commission we invited anyone to give evidence about anything that concerned them. We were particularly impressed by the evidence that we received from local civil society groups, especially from the women in those organisations, working within and across divided communities to help bring peace and social justice to Northern Ireland.
As it happens, 10 days ago I was in Belfast with the Associate Parliamentary Group on Women, Peace and Security, which is undertaking an inquiry into the application to Northern Ireland of UNSCR 1325 on women’s roles in post-conflict situations. To my amazement, I discovered that our Government did not accept that Northern Ireland had been in a conflict situation, although there are groups currently campaigning on the application of UNSCR 1325 to Northern Ireland. When we heard from civil society groups, one of the overwhelming messages that we received was that women in deprived communities feel that they are being silenced, partly by the men in their communities and partly because their role in achieving peace and reconciliation in Northern Ireland is simply not being recognised. My fear is that this Bill will further silence these women who are active in local community groups.
My noble friend Lord Rooker talked about equality legislation in Northern Ireland. Again, the overwhelming message we received was that Section 75 of the Northern Ireland Act 1998 is not producing gender equality in Northern Ireland; in the name of gender neutrality, women are being disadvantaged. Again, these are issues around which campaigning has taken place. As well as the implications for Northern Ireland—I hope that the Minister will take heed of my noble friend’s warnings in that regard—this issue also illustrates an important point made by the Commission on Civil Society and Democratic Engagement, which I congratulate on producing a first-class, useful report in no time at all. One of the issues to which it draws attention is the failure of the Government to provide a detailed equalities impact assessment. This is very relevant to the Northern Ireland situation where, as I say, women’s voices in particular could be silenced. The report says that the commission is not aware that any progress being made in this regard during the pause—that is, with regard to an equalities impact assessment. Therefore, I would be very grateful if, as well as referring specifically to the point about Northern Ireland, the Minister will advise your Lordships’ House whether any progress has been made on an equalities impact assessment in relation to this piece of legislation.
Lord Cormack (Con)
My Lords, like my noble friend Lord Brooke of Sutton Mandeville, I have great respect for the noble Lord, Lord Rooker, who has performed a very real service in putting down this amendment and raising this issue. I had the privilege to be the chairman of the Northern Ireland Affairs Committee in another place from 2005 to 2010 and saw at close hand the establishment of the power-sharing Executive. Two things struck me: first, it was remarkable—indeed, unique—and, secondly, it was fragile, as events of the past weeks have reminded us. We must do nothing that may, even inadvertently, damage what has been achieved—something to which successive Prime Ministers have contributed. Without Sir John Major’s trail-blazing work, I do not think that Prime Minister Blair would have been able to bring about the Good Friday agreement. I am glad to see the noble Lord, Lord Rooker, nodding in assent.
A great deal has been contributed by a great many people to establish something truly remarkable which is an example for the rest of the world. The last thing we must do—even inadvertently, as I say—is to jeopardise or threaten that. Therefore, I appeal to my noble friend the Minister to say that he recognises the importance and the sensitivities of this crucial subject, that the implications for the United Kingdom as a whole would be considerable and profound if the achievements of recent years were put at risk, and that he will ensure that, as the Bill proceeds through your Lordships’ House, the Government recognise the vital matters that the noble Lord, Lord Rooker, so rightly and judiciously mentioned.
Baroness O'Neill of Bengarve (CB)
My Lords, I agree with the points that other speakers have raised, but I support the amendment for a further reason, which is that the politics of Northern Ireland differ from those of the rest of the United Kingdom. Noble Lords may say that that reason is more apparent in Part 1 of the Bill, which deals with political parties and lobbying. However, we should remember that the parties that campaign in Northern Ireland may also receive funding from individuals and organisations in the Republic of Ireland. The Republic is reasonably generous in giving citizenship to those who are not domiciled there. That line of thought should suggest to Ministers that there are additional reasons for ensuring that the civil society organisations and charities that have made such a profound difference in Northern Ireland can continue to do their work.
Lord Horam (Con)
My Lords, I declare an interest as a member of the Electoral Commission. However, I am speaking for myself on this occasion and any further remarks I make in this debate are not from the Electoral Commission.
The burden of the point of the noble Lord, Lord Rooker, which I take very seriously, is that civic society plays a special role in Northern Ireland because of the nature of the political settlement there. The solution he proposes, which is to exempt Northern Ireland entirely from the provisions of the Bill, is only one possible solution to the problems. Another solution was put forward by the commission chaired by the noble and right reverend Lord, Lord Harries, which goes into the issue in some detail. The noble and right reverend Lord points out that if the registration levels were raised, and if the costs of security and safety were exempted from regulation, that would be another way of dealing with this issue, rather than exempting them from the Bill as a whole.
As to the other remarks made by the previous speaker, the noble Baroness was quite right to say that, in relation to donations, for example, which have played a very important part in the political tragedy, if you like, of Northern Ireland, delegated powers under another Bill allow the Secretary of State to bring in provisions as he thinks fit and as his judgment suggests is wise. That is a third alternative to exempting Northern Ireland entirely from the provisions of the Bill. It would be rather stark to do that, given that—I am sure the noble Lord, Lord Rooker, would agree—in essence we are trying to normalise the situation in Northern Ireland as we go along. Therefore, we could give it special attention by all means, but to exempt it totally from the provisions of the Bill would be too stark when there are alternative ways forward.
Lord Dubs (Lab)
My Lords, I would very much like to support my noble friend Lord Rooker in what he has said and the amendment he has put forward. I also very much welcome the comments made by my noble friend Lady Blood, particularly with reference to integrated education. I totally share her views that the integrated education movement in Northern Ireland is a vibrant force and absolutely crucial for the political future of education there. I only wish it had more money and even more clout than it has to influence the political parties in Northern Ireland.
I preceded by some years my noble friend Lord Rooker in being a junior Minister in Northern Ireland. Well, he was not a junior Minister: I was. I was so impressed by the vitality, energy, vibrancy and effectiveness of the voluntary sector. It is something that one has to experience in Northern Ireland to sense the way it is. Anything that would muzzle the voluntary sector would be a retrograde step. I have more recently, through my membership of the British-Irish Parliamentary Assembly, been involved through one of the committees in dealing with many parts of the voluntary sector. That vitality continues to make such an important contribution to democracy in Northern Ireland.
As the noble Lord, Lord Rooker, said, politics in Northern Ireland is a bit different. We have there a coalition compelled by legislation—although I am bound to say, as an aside, that it is quite to be expected that there will be arguments within the coalition in Northern Ireland through the power-sharing Executive. The coalition here is beginning to follow in the steps of the Northern Ireland Executive in that respect. Perhaps it is churlish of me to draw attention to that.
The voluntary sector has an enormous part to play in developing democracy and institutions, and in seeking to establish change in Northern Ireland. I very much hope that the effect of the Bill will not be to muzzle that effectiveness. That is why I welcome the contribution of my noble friend Lord Rooker in bringing forward this amendment.
Baroness Mallalieu (Lab)
Perhaps I might add a little to what the noble and right reverend Lord, Lord Harries, said earlier. I had the good fortune to be a member of his commission. I am bound to say that, before I started to hear the evidence from Northern Ireland, I had very little understanding or knowledge of the particular effects of the Bill, as it is currently drafted, on Northern Ireland.
The commissioner who went over on the commission’s behalf, Georgette Mulheir, is the chief executive of Lumos, a children’s charity. She came back with some truly powerful evidence from those from whom she had heard, and made more than one visit. Some of her work was done before Second Reading in this House, and some subsequently. I understand that latterly one of the Ministers—I believe it was Tom Brake, but I shall be corrected if I am wrong—went over on one occasion and took some evidence, but that was of course after the Bill had been drafted and gone right through another place, and after our Second Reading here.
If I had not had the benefit of the material that we had heard, I would have had no idea of the damage that the Bill as currently drafted could have in Northern Ireland. What came back was that non-governmental organisations’ participation in the democratic process over there is one of the key components of the peace process. The engagement of young people in campaigning, and the close co-operation with all-party groups, was viewed by virtually everyone as a way of strengthening the possibility of lasting peace in Northern Ireland and a real alternative to a return to violence—which, after all, was the way in which young people participated in politics in Northern Ireland for far too long.
The commission’s view at the end of the day related both to the limits—the registration limit and the spending limit—which in our view it would be wholly wrong to lower, and of course to the way in which coalitions work. One of the most powerful examples of how unintended consequences can occur with a Bill such as this—and I cannot believe that the Government wanted to produce this result—was the example given in the commission report about the Human Rights Consortium in Northern Ireland, a group of 180 small organisations from right across the political divide. It would be hard to think of a more disparate group. It got together to campaign for a Bill of rights. Under the Bill as currently drafted, that coalition would have fallen foul of the registration threshold, the spending limits and, in some areas, the constituency limits. It would have been wholly impossible for that group to get together, knowing that it would face the regulatory burdens of the Bill, with a criminal sanction at the end of it. I cannot believe that an organisation such as that, which was working hard and involved people who had never spoken to one another sitting down and campaigning together, is something that the Government would wish to destroy. That, in effect, would be the result of the Bill as it stands.
Whether the right course is, as my noble friend Lord Rooker suggested, to take out Northern Ireland altogether, I am not sure—because, of course, transparency should go across the board in the United Kingdom. However, unless there are changes to the thresholds, to the way in which groups can get together to work, and to the regulatory burden that is imposed, the amendment will deserve to be supported at a later stage.
I am bound to say that the commission spent a lot of time looking at many areas that we are going to come on to. This is not a Bill that can be tinkered with and cherry-picked, in the sense that the amendments put forward by the commission stand or fall together as a package. This House may have to make a decision when eventually we hear what the Government’s views are. Not a single government amendment has been put down today—because, we are told, they are listening, as I am sure they are. The question is: will they act to put the Bill right? If at the end of the day they have not done so, we would be better off with the present state of play for the next election.
Most important of all—it is one of the commission’s recommendations and makes sense from all that has been said by those noble Lords who have spoken and who know about Northern Ireland—the issue needs to be looked at in real detail, not in the rush of a couple of months or weeks. It needs people to sit down and produce a proper piece of legislation, not something cobbled together in a rush since July, as this Bill has been. If that cannot be done before the Bill leaves this House, it will have to be done after the 2015 election. If the changes are not made, I am bound to say that I hope that we will look closely at the whole of Part 2 at the end of the Bill’s passage through this House, to see if we would not be better off without any of it until after the next election, when the job can be done properly.
Baroness Royall of Blaisdon (Lab)
My Lords, I begin by thanking my noble friends Lord Rooker and Lady Blood. Using a deep understanding of Northern Ireland, they have demonstrated why this badly drafted and poorly thought-through Bill has the potential to be so damaging there. My noble friend Lady Blood has huge experience in campaigning in Northern Ireland as part of a grass-roots movement and I pay tribute to her work as chair of the integrated schools movement—a movement which I fully support, does excellent work and must never be muzzled in any shape or form. I very much hope that the Government will heed her advice.
I am sure that I will not be the last in the Chamber today to pass on my sincere thanks to the Commission on Civil Society and Democratic Engagement, specifically the noble and right reverend Lord, Lord Harries, my noble friend Lady Mallalieu and the other commissioners. By seeking evidence from across the UK and by formulating proposals and testing them against the needs of charities and NGOs, they have highlighted how remiss the Government have been in failing to do any of that. We are told that today is to be an extension of the consultation. However, our constitutional role in this House is to scrutinise the Government and revise their proposals. Committee stage should enable noble Lords to debate government proposals and then to table the necessary amendments for Report. Instead, we are being treated as a focus group for the Government to gauge how little they can get away with changing. I therefore ask the noble and learned Lord to give us a cast-iron assurance that, at the latest, we will see any government amendments which might be forthcoming after Committee by the Tuesday when the House returns following the Christmas Recess. That means that the amendments would have to be tabled on the Monday and published on the Tuesday. It is only right that noble Lords, especially those who are engaged with the commission, have an opportunity to look at the amendments properly and to table their own amendments at Report.
As the noble Lord, Lord Cormack, said, on Friday night we had a terrible reminder of how fragile the peace in Northern Ireland is: a large explosive device was left in a busy area of Belfast, at a time when many were out enjoying themselves with friends or colleagues ahead of Christmas. Despite the worrying scenes on Friday, however, a huge amount of progress has been made, and it must not be jeopardised in any way. From the beginning of the Troubles at the start of the 1960s until the Good Friday Agreement, 1,800 people lost their lives in Northern Ireland. One in five people had a family member killed or wounded in the fighting. So we must support the people who have created, and are attempting to sustain, the delicate balance there in the wake of the Good Friday Agreement and, of course, earlier agreements.
As the commission report says:
“NGOs and charities in Northern Ireland are frequently working on issues that relate to ensuring the full implementation of the Good Friday Agreement”.
I was particularly struck by the evidence relating to equality issues and was interested to hear what my noble friend Lady Lister said about women’s voices in Northern Ireland.
As my noble friend Lord Rooker said, the voluntary sector in Northern Ireland has made a huge contribution to nurturing understanding between the two communities there, especially in disadvantaged areas. In a post-conflict society, freedom of expression cannot be taken for granted. Non-governmental organisations carry out roles that do not necessarily come easily to governments in such circumstances. The evidence gathered and presented by the commission on civil society provides us with a vivid example of this in an extraordinarily wide-ranging and inclusive campaign for a Bill of Rights for Northern Ireland.
As my noble friend Lady Mallalieu mentioned, more than 180 community groups have come together as the Human Rights Consortium, including human rights organisations and disability charities. Strikingly, it also contains republican and loyalist ex-prisoners and the injured police officers’ association. The consortium’s campaign is driven by the belief that, in a society emerging from a conflict that has proved to be so scarring, a Bill of Rights can play a vital role in building confidence in a new legal framework. In its own words:
“While there are rights, the European Convention on Human Rights, this is special for our country because here we have a country where I have been brought up to be British, and that was just the way it was, and my neighbour across the street was brought up to think they belonged to another country, but using rights we can work together to form a new contract with the government of our country, which is Northern Ireland. That is why it is so important to people, particularly in working class communities, but that benefits the whole community right across unionist and nationalist and that is why it is so important”.
The consortium’s campaign shows how the Government’s insistence on bringing forward proposals which expand the definition of regulated activity and expand the definition of what has to be counted toward that expenditure while reducing the thresholds for registration, has muddied the waters.
In 2009, representatives from the consortium appeared before the Northern Ireland Affairs Committee. In that appearance, they had the opportunity to present and explain some important polling that they had carried out. It showed 75% public support for a strong and inclusive Bill of Rights. The sample for the poll was weighted so that different communities in Northern Ireland were represented, and the consortium was able to tell the committee that the breakdown of its poll showed high levels of support for a Bill of Rights across different religious communities.
As the Bill is currently drafted, this polling, designed to pressure the Government into action, appears to be a qualifying expense. The Government wish to lower the thresholds of registration in Northern Ireland to a very low level at the same time as widening those definitions. However, there is not a single reason why the thresholds as contained within the existing PPERA legislation could be said to be too high.
Noble Lords on the government Benches may have spotted that much of the campaign that the consortium ran took place under the previous Government, and they will be wondering about my enthusiasm for protecting its rights. But that is what being in government is all about. The huge majority of protest is aimed at whoever is in government, because civil society, NGOs and charities all know that if they want a change of policy they will have to convince whoever is in power. Civil society can be awkward for a Government to deal with. It needs to be, because in a democratic society its role is to scrutinise and to hold to account. It seems as though the Government have not fully understood that, and that is the central problem with the Bill.
I would be grateful if, when the Minister responds, he could outline the detailed changes that will be made to protect the rights of civil society in Northern Ireland and elsewhere in the United Kingdom. I would be particularly grateful for the Government's response to the recommendation from the commission that:
“In advance of introducing any new legislation, Government should”—
this is in relation to Northern Ireland—
“Undertake full, in-depth and considered consultation with a range of organisations in Northern Ireland and with the Stormont Parliament itself to ensure that civil society's contribution within the unique political environment of post-conflict recovery is not jeopardised. In particular, ways should be found to ensure that pre-election regulation does not inhibit progress in towards full implementation of the Good Friday Agreement”.
I trust that we will have several assurances from the Minister in response to this short debate.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, as this is the first of no doubt many occasions on which I shall speak in this debate, I should put on record that I am a member of the board of the Saint Magnus International Festival and a member of the Kirk session of St Magnus Cathedral congregation in Kirkwall, both of which are charities registered with the Office of the Scottish Charity Regulator.
I am grateful to the noble Lord, Lord Rooker, for introducing this debate and Committee sitting. With the indulgence of the House—and perhaps responding to some of the things that the noble Baroness, Lady Royall, said—perhaps I may first update the House on the consultations that the Government have had, and benefited from, over the past six weeks. I should also like to indicate how grateful we are to the many campaigning groups, charities and others—and Members of your Lordships' House—who have taken the time to discuss these matters.
My noble friend Lord Wallace of Saltaire has written twice to noble Lords offering discussions—and I thank the noble Lord, Lord Rooker, for his expression of good wishes to my noble friend Lord Wallace. I assure the noble Lord that no one wishes my noble friend a speedier recovery than I do. My noble friend texted when I was on my way down south from Scotland today to say that he was home. Somewhat alarmingly, he also said that he might be watching some of our proceedings on the parliamentary TV channel. I asked him to check his blood pressure levels before doing so.
I know that my noble friend has valued the meetings that have taken place, as have I. There have been meetings with nearly 50 organisations to discuss how the Bill might affect them, and there has been correspondence with many more. Organisations which we have spoken to reflect the diversity of civil society in the United Kingdom, including large charities, campaigning organisations, umbrella organisations and specialist organisations.
I wish particularly to express my thanks—the noble Baroness said that it would not be the last time that that would be the case in these debates—to the noble and right reverend Lord, Lord Harries of Pentregarth, the noble Baroness, Lady Mallalieu, and other members of the Commission on Civil Society and Democratic Engagement for its comprehensive second report on the Bill. Campaigning groups have made numerous suggestions about changes that might be made to the legislation, many of which are reflected in the amendments that have been tabled. We have been considering these suggestions carefully. I do not accept that this House is a focus group; it is important that this House should scrutinise government legislation. We thought it equally important, in framing the amendments we would bring forward, to have the benefit of full and thorough exchanges on the amendments that have been tabled both today and on Wednesday.
The noble Baroness has asked for a guarantee that the amendments will be available on the first sitting day after the Recess. While it is one that I would love to give, I am sure she will understand that I cannot do that with certainty, although we aspire to it. At any other time of the year it might be easier to do so, but as the Committee will be aware, quite frankly it can be difficult at this time of year to make sure that all the people concerned are in the right place. However, I take the important point that those who have taken a particular interest in this Bill are given proper notice of the amendments that the Government are to propose before the House comes to debate the Bill at Report stage.
One area where we have heard consistently that more clarity is needed is over the guidance as to which activity might or might not be caught by the electoral test, and I may be able to say something about that in the course of replying to the specific points raised by the amendment moved by the noble Lord, Lord Rooker. The Government believe that it is essential that campaigners have clarity on how they are to comply with the third-party regulatory regime. The Electoral Commission has a power to produce guidance for third parties campaigning in elections, and indeed has exercised that power in previous elections. Campaigners require clear guidance to support them and help them understand the revised regime, and I am reassured that the commission recognises this too. It makes clear in its briefing notes that it is committed to working with the United Kingdom’s charity regulators to produce clear and reliable guidance that will help charities to understand how to comply with both electoral law and charity law, and I say that without pre-empting subsequent debates that we will have on charities. Also, I would say that the sooner this guidance can be produced in draft, the better. As a Government we are open to working across the House and with the electoral and charity commissions to give campaigners the guidance they need. It may be that we will hear in these debates in Committee how best the commissions can support campaigners in a thorough and timely way.
Charities and campaigners have also expressed fears that low-level campaigning and expenditure will be regulated as a result of this Bill, and that small organisations will face a disproportionate reporting and compliance burden. Our belief is that there should be greater clarity about who is campaigning for the electoral success of parties or candidates, but we do not want small campaigners to be dissuaded from taking part by the fear of having onerous burdens placed upon them. Therefore in line with the commitment made by my noble friend Lord Wallace of Saltaire to the House on 5 November, the Government will bring forward on Report amendments to increase the registration thresholds in England, Scotland, Wales and Northern Ireland. As I have said, we will listen to the debates today, but the Government believe that the substantial increase in the threshold currently set out in the Bill is appropriate.
Finally, as a preliminary, the Government are committed to bringing more transparency to campaigning by third parties before the 2015 general election, but having listened to the views of campaigners over recent weeks, I seek to reassure noble Lords that we agree with those who think that the provisions of Part 2 should be subject to review after the 2015 UK parliamentary general election. That election will provide the earliest opportunity to understand the effectiveness of the provisions of Part 2. The Government therefore commit to laying this review before Parliament, and an amendment to this effect will be introduced at Report stage. As I have said, beyond that I do not wish to pre-empt the debates today and on Wednesday. Of course, the Government wish to hear views from across the House on the amendments which have been tabled, and I hope that these points and a short statement will assure your Lordships that while the Government are absolutely committed to the increased transparency that Part 2 will bring, we have been listening and will continue to listen to those who have strong views on this legislation.
I turn now specifically to the amendment moved by the noble Lord, Lord Rooker. As we have heard, it would exclude Northern Ireland from the provisions contained in Part 2. That exemption would stand for as long as there is a statutory Executive based on the Good Friday agreement, which is in place. I readily accept that there is a different political structure in Northern Ireland, where different parties compete for elections, than is the situation in Great Britain. It is clear that there is a particular situation in Northern Ireland and it is important that the legislation should take account of that.
I have been particularly struck by the contributions that have stressed the importance of civil society, not just across the United Kingdom but particularly in Northern Ireland, and the role of community groups in developing policies. I think the noble Lord, Lord Rooker, and the noble Baroness, Lady Blood, said that, very often, in the years when there was a lack of political leadership, community groups were very important in coming together and giving leadership on specific policy issues. We do not in any way wish to negate the impact that they have had or the work that they do. The Government recognise that and I hope that I can reassure the House by saying that we do not believe that that important work would in any way be prejudiced or jeopardised by the provisions in the Bill.
Baroness Lister of Burtersett
Can the noble and learned Lord give an answer to my question about whether any further work has been done on the equalities impact assessment? This is not relevant only to Northern Ireland but, for the reasons I gave, is particularly so there.
Lord Wallace of Tankerness
My Lords, I apologise for overlooking my scribbled note. As part of the impact assessment at the time the Bill was published, we said that 30 third parties were recognised by the Electoral Commission for the 2010 general election and that there were no robust equalities data covering these groups. However, we did not believe that these proposals would have an adverse equalities impact because of the wide range of groups that were registered. There is nothing to suggest that there was a preponderance of gender equality organisations. We therefore do not believe there is particular impact in that regard.
In the 2010 election in Northern Ireland, 10 third parties spent a total of £26,773 while £27,000 could potentially have been spent by each third party. The total for 10 third parties was, therefore, less than what one could have spent. Only two incurred expenditure above the current £5,000 registration threshold.
Lord Harries of Pentregarth
The Minister said he did not think that the Human Rights Consortium would be captured by the present legislation because it could not reasonably be interpreted as wanting,
“to promote or procure electoral success”,
of a particular party or candidate. However, does he agree in principle that in an election year, such a human rights consortium, which might be opposed by one of the parties standing for election, could actually be caught? There are some very important subsections in the Bill. Clause 26(4)(c) says that,
“though it does not involve any express mention being made of the name of any party or candidate”,
and proposed new subsection (4A) says that,
“it is immaterial that it can reasonably be regarded as intended to achieve any other purpose as well”.
Therefore, there could be a human rights consortium, which as a result of those two subsections could possibly be interpreted as supporting a particular party or candidate. Real difficulties remain, even if that particular example would not be caught.
Lord Wallace of Tankerness
My Lords, I think this is at the heart of much of this debate. As the noble Baroness, Lady Royall said, if the activity being undertaken included extensive polling, the purpose of which was to get a Government to act in a particular way, and one applied a test of,
“reasonably be regarded as intended to promote or procure electoral success”,
of a party or candidates, I do not think that it could be interpreted in that way, unless one had a very vivid imagination. It is a leap to see activity that is clearly directed towards trying to address or change government policy as being intended to procure the election of a particular candidate.
As I said in my opening remarks, there is quite an onus on the Electoral Commission and the guidance it has given. It has given guidance on this in two previous elections without any apparent problems; I think we will return to this issue more fully in the next group of amendments. It is stretching things quite some distance to think that what is actually the perfectly legitimate purpose of an organisation, to campaign on issues relating to establishing provisions to be included in a Bill of Rights, can be seen as an intent,
“to promote or procure electoral success”,
of a particular party or candidate.
Lord Rooker
My Lords, I am very grateful for the contributions. As I said, I am no expert on this but I know enough from my own experience to know that we are on thin ice.
To deal with the last point first, as the noble and right reverend Lord, Lord Harries, said, the whole point is that the parties make it a political issue, not the groups. Let us be clear about this. Having read my original ministerial briefing, I will be mindful of the language I use, but let us face it: Section 75 of the Northern Ireland Act 1998 would not have been put on the statute book by a majority Government in Northern Ireland. That is a fact. But that legislation operates the pressure on all the parties in Northern Ireland to have transparency.
I saw things in Northern Ireland that you do not see in annual reports that are published in England and Wales and Scotland, which we get from the Printed Paper Office, such as an analysis of the religious make-up of participants, because they are checking the Equality Act. The Equality Unit there takes it really seriously, but it is not that unit that makes it party political; it is open to a party to say, “Hang on a minute, we’ll show our true colours: we are not in favour of this right”. Automatically it becomes a partisan issue, and that is where the danger lies. But that point has been made.
I fully accept the point made by the noble Lord, Lord Horam: there are other ways of dealing with this. This is a black-and-white issue of taking Northern Ireland out of Part 2. There has to be another way of taking account of the situation in Northern Ireland. I genuinely think that we have to take account of a situation that is different from that in the rest of the United Kingdom.
I also want to say on the record that nothing I have said or implied is in any way a criticism of the power-sharing Executive in Northern Ireland. I think they have done a fantastic job. I once sat in the Public Gallery in Northern Ireland during my time as chair of the Food Standards Agency, because it is a UK body. I watched Question Time and almost had tears in my eyes. It was a pretty rubbishy Question Time but it was there, across the Floor of a Chamber, using words to fight each other and not weapons, and that is the way of the future. We want to make sure the fragility is strengthened, not weakened.
I fully admit I had never set foot on the island of Ireland until I went there as a Minister but the Northern Ireland Office today cannot be the same as it was before devolution. It was unique in Whitehall. The political director was one of the most senior civil servants. The last one became the Permanent Secretary. They had fingers on things that did not happen in other departments. I would like to know that the equivalent of the political director in the Northern Ireland Office today is satisfied with this process in this Bill. I am concerned that those who know about the nuances and the organisation to make these things work are comfortable with it. I would certainly like to have a note on that before Report or a Statement from Government.
Lord Hardie
Lord Hardie (CB)
My Lords, in speaking to this amendment, I will also speak to Amendments 159E, 159F, 160D, 160E and 160F. As this is the first time for me to speak about this part of the Bill, I should declare an interest as honorary president of Capability Scotland, a charity that is concerned with provision of services and support for multiple-handicapped people.
Controlled expenditure requires two elements. The first is that the activity resulting in the expenditure must be within the definition of what is controlled. Secondly, the expenditure must reasonably be regarded as intended to promote the electoral success of one or more registered parties or candidates within certain categories. Section 85 of the 2000 Act is restrictive in its scope. It confines controlled expenditure to the production or publication of election material made available to the public or sections of the public. In that situation it would be relatively easy to assess objectively whether the intention of the published material was to promote the electoral success of individuals or registered parties. However, Clause 26(2) of the Bill extends the meaning and scope of controlled expenditure by expanding the activities from the mere production and publication of election material to include the various activities listed in Part 1 of new Schedule 8A to the 2000 Act added by Clause 26(2)(a) and Schedule 3. These activities include market research, public meetings, rallies and media events.
Many organisations with a legitimate interest in the democratic process indulge in such activities at different times. For example, charities and others may be involved in campaigns throughout the year, highlighting the plight of those in our society who are poor, homeless or otherwise disadvantaged, including the disabled. These campaigns might intensify at Christmas and throughout the winter months when the consequences of having no shelter or hot food are more acute. At other times, they may concentrate on the inability of the poorer members of society to afford heat, light or other basic essentials. These activities are not associated with elections and they are not confined to the year immediately preceding an election.
A campaign to make poverty history in our society might suggest various solutions directed at unemployment, the level of wages and benefits, the price of energy or other measures. It might involve organising public rallies and media events. If such a campaign started before the commencement of the regulated period before an election, expenditure could be incurred with impunity, but one might expect such a campaign to continue during the regulated period in the lead-up to an election. If that happened, different issues would arise.
If the organisers considered that there was a risk that their activities might be interpreted as having an intention to favour a candidate or a party at the forthcoming election, they would be obliged to incur the cost of the administrative burden imposed by the Act of having systems and personnel in place to comply with the Act and make the return. If they genuinely believed that they were not covered by the Act, but ultimately found out they were wrong, as I will explain later, they would face prosecution and a criminal penalty.
Similar consequences would apply to local campaign groups concerned about a local issue, such as the threatened closure of their hospital, the route of HS2 through the constituency, fracking or the existence or otherwise of wind farms. If no party or candidate had policies about such matters, the local campaign group, or the charity, as the case may be, could spend money without fear of contravening the rules about controlled expenditure, but what if—and this is a point that was raised on the previous amendment—a candidate with such policies emerged after the start of the regulated period or an existing candidate adopted them in the course of his campaign? The intention of the campaign by the local group or charity would not have altered, but the organisers would risk prosecution if after that time they continued to incur expenditure without complying with the provisions about controlled expenditure, the reason for that risk being that it might be argued that a subsidiary intention of the campaign was to procure the electoral success of the candidate who had adopted it, even if he or she were not mentioned. While such an intention may not be the aim of the organisers of the campaign, and might not even be in their contemplation, it may be a consequence of their campaign. In that situation, if an objective evaluation of the case resulted in the conclusion that such an outcome could reasonably be regarded as a subsidiary intention of the campaign, the consequence would be a criminal conviction and a financial penalty for those responsible for the campaign.
The risk of such consequences might well induce organisers of a campaign to abandon it in the regulated period prior to an election. That cannot be desirable. We should encourage participation in the democratic process, particularly in the period immediately prior to an election. We should not threaten with prosecution campaigners who are genuinely concerned about social, local or other issues of genuine concern to the electorate.
I accept, of course, that there have to be some controls but where the scope of controlled activity is being extended as widely as in this case, the control should be proportionate and we should make some allowance for the genuine subjective intention of campaigners. We can achieve that balance by restricting controls and consequential offences to expenditure where the principal purpose of the expenditure is to achieve electoral success for candidates or parties. This is the aim of my Amendments 159A, 159E, 159F, 160E and 160F.
If the noble and learned Lord the Advocate-General does not favour this solution, perhaps a more acceptable one would be to introduce a statutory defence to any criminal offence, similar to my Amendment 160D. If that route were preferred, I accept that it would necessary to redraft the clause as it currently includes a reference to the principal amendment. Without such a defence, we risk criminalising campaigners who are genuinely concerned about issues that matter to the electorate and do not seek to promote the electoral success of a candidate or candidates or a political party or parties. I beg to move.
Lord Walton of Detchant (CB)
My Lords, this amendment and the subsequent ones, such as that carefully drafted by the noble Lord, Lord Greaves, give me the opportunity of raising an issue of concern to a number of charities. Much has been said about the role of charities in respect of lobbying activities and a number of reassuring comments have been made during early stages of this Bill. However, I am particularly concerned about the activities of all-party groups within Parliament. Many of these groups are in the medical research field and are serviced and provided with financial, secretarial and other support by charities. They are dependent on this to a considerable extent. Of course, one would say at once that if they are all-party groups and their membership includes Members of the Commons and of this House from all parties, surely they cannot be construed as lobbying in search of electoral success. That is an entirely reasonable conclusion to draw. However, there is always a possibility that a particular all-party group may be so dominated by members of one political party that its attitude to an approaching election could change quite significantly.
I want to give noble Lords an example. I speak as the life president of the Muscular Dystrophy Campaign. I served on an inquiry by the All-Party Group on Muscular Dystrophy, which conducted a lengthy inquiry over a 12-month period, rather like an inquiry by one of your Lordships’ Select Committees. It took a great deal of written evidence and held public meetings to which a number of witnesses were called. The Muscular Dystrophy Campaign covered the costs, including the expenses of those giving evidence. We discovered in that inquiry that boys with the most severe form, Duchenne muscular dystrophy, who, when I started work in that field in 1950, were dying, often grossly deformed, in their teens, were now, with greatly improved care, living into their 30s and some even into their 40s in places such as Newcastle, Oxford, Queens Square in London, Oswestry and a number of other centres, with wonderful rehabilitation and respiratory support.
However, that inquiry demonstrated that in the south-west many of them were still dying in their teens. That was also true in the north-west. When we produced this report, which went to all the major health bodies across the country, and it went to the South West Strategic Health Authority, the executive director, Sir Ian Carruthers, was so shocked that it immediately put another £1 million into care for patients with muscular dystrophy and other neuromuscular diseases in that area. Mike Farrar, then the chief executive of the North West Strategic Health Authority, said that anything Ian Carruthers could do, it could do better, so it put money into those services in that area.
That was clearly lobbying with a view to improving services and influencing the activity of health service organisations. There are a number of people working on that and many other charities to do with things like stroke, multiple sclerosis and Parkinson’s disease, and another inquiry into Parkinson’s disease has just been conducted, demonstrating a similar unevenness of standards of care across the country. The question is whether the all-party groups serviced by these charities are at risk under the Bill. It is crucial that we have an answer from the Minister about this. Many of the charities which service the all-party groups have expressed serious concern that their activities might be adversely influenced by the provisions of the Bill.
The Earl of Sandwich (CB)
My Lords, I first congratulate the noble and learned Lord, Lord Hardie, on the amendment, and my noble and right reverend friend Lord Harries for the work of his outstanding commission; I do not think that anyone has seen such a piece of work from the charity.
Having not spoken at Second Reading, I will beg for just a couple of minutes to put one point to the Minister. These are the most critical of the amendments. They convey the fundamental problem, which is that while the Bill and its predecessor are trying to regulate electioneering, they are actually hitting a whole range of legitimate charitable activities. The Government may not even guess at the damage that will be caused by this, all the way up to the review—which is of course welcome.
I have spent nearly 40 years working with aid organisations, personally assisting in the development of advocacy. It is a vital part of their work, bringing issues of poverty reduction to the attention of the public during an election campaign. Mr Brake told MPs that charities would not be caught by controlled expenditure. I am not sure that the Government yet appreciate that with national, European and local elections, and possibly referendums, all at different times, the Bill will or could hurt charities throughout the five-year period, not just leading up to the election—although we are going to discuss that period.
As the noble and learned Lord, Lord Hardie, demonstrated, there are grey areas everywhere in the Bill, even if we accept the Government’s undertakings in the Commons on definition. I have much sympathy with the Liberal Amendment 160, which is coming up and attempts to exclude charities altogether; however, it may already be too late for that, as they are already regulated under PPERA and the Charities Act. The amendment should attract the Minister, since it makes the point that if the campaign is not specifically related to a manifesto or proposed legislation, it should not be counted at all. It will be difficult enough making the calculation, but at least the Minister should see the point of the amendment. It is much narrower than subsequent amendments and should be easier for him to accept.
On smaller charities, there is a myth that Clauses 26 and 27 would not have an impact on them. As we know from coalitions, there is a close relationship between the larger charities, such as Oxfam and Christian Aid, and the many smaller ones which they themselves have sponsored. However, these may now be more independent and in some cases have grown much larger. So the smaller, specialist agencies are often concerned with single issues such as appropriate technology, fair trade, anti-slavery or other aspects of human rights in Burma, Tibet or Sudan.
Some of the issues are highly political. The noble Lord, Lord Walton, mentioned all-party groups; there are many active all-party groups on specific subjects. These might well be brought to the attention of campaigning politicians. At the same time, the size of these charities, while in some cases bringing them over the proposed threshold—I welcome the Minister’s assurances about the threshold—is not sufficient to justify the added expense and work involved in what I call selective accountability and monitoring in relation to the Bill.
The point about counting volunteers has already been made. It is often the smaller charities that depend on volunteers, especially in times of emergencies. We have also heard about coalitions. In spite of what the Minister said, I feel that they could also be caught by the Bill quite unnecessarily—as the noble and right reverend Lord, Lord Harries, pointed out. I therefore urge the Minister to consider accepting the amendment on Report.
Lord Greaves (LD)
My Lords, I think that this is the first time I have spoken in Committee, so I remind the House of my various interests with campaigning groups and charities set out in the register of interests, and also declare my lifelong activity as an election agent, which, I have no doubt, will continue.
I, too, thank the noble and right reverend Lord, Lord Harries of Pentregarth, and his commission for the outstanding body of work they carried out in a limited time and for the reports they have produced. This is only to the good as we look at the Bill in detail. I also thank the Government for the large amount of activity which has taken place. For example, my noble friend Lord Wallace of Saltaire has met something like 40 representatives of separate organisations to discuss their concerns about the Bill, and we had a letter this weekend from my noble and learned friend Lord Wallace of Tankerness making it absolutely clear that the Government are in listening mode. I hope that noble Lords will not get too tied up in whether this is consultation or not. The fact is that we are scrutinising legislation and that the Government are listening to that scrutiny. We do not always get that in Committee in the House of Lords, from different Governments, and we should make it very clear that it is welcome.
Much discussion is still taking place within coalition circles, within the Government and between the Government and other organisations, not least the noble and right reverend Lord’s commission. That discussion must continue and we must continue to do what I believe the Government, or at least substantial parts of the Government, are now doing, which is to seek a consensus on the Bill that will achieve the objectives behind it and will not have the damaging, chilling effects that are feared by so much of civil society.
We have two main slates of amendments here which come through the different groups. One slate of amendments has come from the commission of the noble and right reverend Lord, Lord Harries, and we have another which my noble friend Lord Tyler has been working on with ferocious energy over the past few weeks. Together they add up, if not to a perfect answer, at least to a very satisfactory means of scrutinising the Bill, by putting forward a number of positive suggestions. I understand that the commission has said that it would like us to take its slate as a package. In practice, as the noble Baroness said, if we come up with something successful at the end of this process, we will end up with a series of compromises, as we always do, but the Bill will not be any the worse for that. There are various other amendments in this group, including three of mine that I will speak to briefly in a minute.
It is absolutely right that the commission chaired by the noble and right reverend Lord, Lord Harries, looked at all this from the point of view of campaigning groups and charities and of civil society. That is the purpose for which the commission was set up. But I hope that it will be recognised that that made the consultation that the commission carried out, and is still carrying out, incredibly valuable as it is, one-sided in one respect—that is, that people involved in fighting the elections, candidates and political parties, were not part of the consultation. When we scrutinise this legislation, we must find the right balance between protecting the interests not just of candidates but of the democratic process itself on the one hand, and preventing damage to civil society on the other.
The dangers that this legislation rightly sets out to prevent and challenge are, first, that at national level we do not see our national politics taken over by the super-PAC-type organisations that we see in the United States, and by what has been described as “big bucks from big boys”—usually boys, but perhaps sometimes girls as well. In other words, we should not allow money to dominate. That money is inevitably from large corporate interests, most if not all of them on the right. We should not allow them to take over politics in this country as has happened to a worrying degree across the Atlantic. Furthermore, we should not allow people to buy particular constituencies simply by throwing a large amount of money at them—far more than the candidates themselves are allowed to spend under the regulations. Those are issues that we will come to later, but that is the basic aim of Part 2, as I understand it. It is very important that we balance that against all the concerns and the proposals put forward to try to address those concerns.
I have three amendments. My Amendment 159C is similar to an amendment in the name of the noble and right reverend Lord, Lord Harries: Amendment 159B. It would exempt from controlled expenditure rules a range of activities related to legislation before Parliament —before devolved Parliaments and Assemblies—and proposals being actively put forward by local government, government agencies and so on. In other words, the normal campaigning and lobbying activities of charities and campaigning organisations ought not to be prevented during the period in which the expenditure is controlled.
Amendment 159D is another probing amendment, more probing than the previous one. It would exempt from controlled expenditure rules any campaigning that was not specifically related to the functions of the bodies being elected during the regulated period. There are obviously major holes in that amendment, and concerns with it, but there is a question as to how far the expenditure controlled by third-party organisations should relate specifically to the functions of the body that is being elected during the election period, and how far it is just general political activity, even if it is totally unrelated to the functions of the Scottish Parliament or whatever it might be.
Amendment 160A would exclude from controlled-expenditure arrangements,
“expenditure”,
that,
“is minor, insignificant, inconsequential or incidental”,
or any similar words that the Minister would like to consider. The question is to what extent there will be in practice a de minimis provision within the Bill and to what extent there will be a requirement to look at whether to some extent, even if it is a very small extent, it might be intended to affect electoral support, and how far it is absolute. It is a similar question to the questions put forward by the noble and learned Lord, Lord Hardie, but on a more de minimis basis.
Lord Ramsbotham (CB)
My Lords, I am glad that the noble Lord, Lord Greaves, made the point that we are trying to make certain that the normal activities of non-party charities and NGOs are not prevented and must continue. I also want to thank and congratulate my noble and right reverend friend Lord Harries of Pentregarth on this excellent commission report. The five weeks we have had, which have not been nearly long enough, have resulted in a considerable amount of work and consultation. At the same time, I am disappointed that there is not a list of government amendments, arising out of that consultation, for us to look at as well. I hope that those will come.
The noble Baroness, Lady Mallalieu, mentioned the package. During the rest of this Committee stage, I shall be referring to this package of recommendations made in the report. However, I believe that the package goes wider than that. I think there are three parts to what we are trying to do in this House. The first is what I mentioned when asking for the pause, saying that the request was not a wrecking but a saving motion. It was saving the Government from themselves and from wrecking the voluntary sector. That is hugely important. We must make absolutely certain that the voluntary sector can continue—that is, the non-party bit—and it must be maintained. Secondly, there is the package of recommendations which I hope will be accepted. We are looking no further than the 2015 election, because the third and key part of this package would seem to be the post-election review, based on what has been learned. Bearing in mind that everyone is keen that the process should be transparent, I think that what eventually comes out should be based on careful examination of what happens during a natural event, rather than the presumption that this or that might happen, when we know that many of the measures in the Bill have nothing to do with the day-to-day activities of non-party organisations.
I am grateful to the Leader of the House for providing the time and, acknowledging that it is too short, I hope that during the remainder of this Committee stage we can be constructive and make certain that these normal activities are allowed to continue.
Lord Tyler (LD)
My Lords, I am glad to follow the noble Lord, Lord Ramsbotham, because I very much agree with the last points that he has been making. I think there is wide agreement in this House that we have to do our job to make that process to which he has referred a reality. I am grateful, too, to the noble and right reverend Lord, Lord Harries of Pentregarth, and to all his colleagues. It was a formidable task that they took on; they did not stop at the first hurdle but kept going and have produced some extremely helpful and notable recommendations.
As is recorded in the register, I am a patron of many charities and I am sure that other noble Lords are too, but I have also had experience in the past as a full-time employee of Shelter, which is exactly the sort of charity and non-party organisation that we think is so important to civil life in our country. I am extremely proud of the work that such organisations have done and are doing, and I continue to support them. So I hope that your Lordships will understand that I come to these issues with very much the same background, interests and enthusiasm as members of the noble and right reverend Lord’s commission. I recognise that the work they have done is an extremely valuable contribution to the discussion of these issues.
Before I come to Amendments 160B and 160C, in the name of myself, my noble friends and others, I wish briefly to address the stand part debate which is also in this group. At Second Reading, I said:
“You could plot on a graph transparency on the one hand and bureaucracy on the other in very many areas of life. If transparency is low, the regulatory burden tends to be low, too. If accountability is strong, it is likely that the regulatory burden will be significant. The threshold is a question of where we plot this legislation on that graph. … It will be our responsibility in your Lordships’ House to get the balance right when we come to Committee”.—[Official Report, 22/10/13; cols. 902-3.]
That, surely, is our principal occupation today—to get that balance right, which is a crucial role that we have to undertake between now and Report in January.
After meeting a very large number of charities, community groups, third-party campaigning organisations and their representatives, it is clear to me that the amendment which I and my colleagues have put forward would go some way to meet that objective. However, I am the first to admit that I am no great expert when it comes to getting the amendment absolutely right. Many others in the House are greater experts in that regard. However, I endorse the concerns expressed by the noble and learned Lord, Lord Hardie, that we must be careful about the unintended consequences that could arise if the Bill were implemented in its present form. That is why the amendments that I have tabled have had broad support from third-party organisations, which accept that there is a problem in ensuring transparency in relation to those who are campaigning.
The Bill refers to expenditure that,
“can reasonably be regarded as intended to promote or procure electoral success”,
in respect of a party or candidate. There is wide acceptance that there should be greater transparency in relation to organisations that are determined to undertake that role. Indeed, everyone to whom I have spoken is absolutely clear that an extremely important part of the role and responsibilities of your Lordships’ House is to try to avoid confusion and to deal with a lack of clarity and the excessive constraints of the 2000 Act. Indeed, that sentiment was shared by the commission of the noble and right reverend Lord, Lord Harries, and he has endorsed Amendments 160B and 160C.
Amendments 160B and 160C deal with two discrete issues that have come up time and again in my discussions with a large number of organisations, and have been a feature of our debate this afternoon. They do not attempt to rewrite the basic definition, which the Electoral Commission has advised is not susceptible to constructive alteration. The benefit of that definition, as it stands, is that it has 13 years of practical experience attached to it and it is an objective test—namely, “What would a reasonable person think someone is doing?”, not “What did that person think they were doing when they did it?”. The latter would be much more subjective. We can never be sure of someone’s intentions but we can come to some conclusions about what a reasonable person would think those intentions were. The amendments seek to make these things clearer still.
Amendment 160B sets out the principle that the endorsement of a campaign by a candidate does not imply that the campaign concerned necessarily supports the candidate. The noble and learned Lord, Lord Hardie, referred to a similar situation. This is a very worrying misconception about the Bill and is much featured in the case studies reported to us: that is, the notion that the endorsement of a campaign by a candidate can be construed as that candidate receiving support from that campaign. The more one thinks about that, the more illogical it is, but it is clearly a perception and, as is so often the case, a perception can be even more influential than reality.
I recall regularly speaking of the good work done by community groups in my former constituency. If, by so doing, I could have won the implied support of those groups, it would have been wonderful. If everything that I supported had automatically reciprocated that support, I would have got an even bigger majority than I did, but, of course, that was simply not the case. The policy objectives of non-party organisations will often receive flattering praise from a candidate, but the feeling may not be mutual. That is precisely the grey area that the noble Earl, Lord Sandwich, referred to just now. It is not absolutely clear in the Bill that it is not reciprocal. We deserve to try to make sure for everybody’s benefit that the Bill is so improved that we know precisely where we are. That needs clarity. I hope that Members of your Lordships’ House will accept that our amendment is intended to do precisely that—to clarify the situation.
Amendment 160C gives an opportunity for the Minister to address some other matters that are ambiguous under the PPERA 2000 definition of non-party campaigning; that is, the extent to which the remotest praise for a candidate by a campaign can be said to be “promoting or procuring” his or her electoral success, or that of their party. In particular, we have all seen in the past—indeed, I think I prepared them when I was not a Member of either House—the score-cards of different parties’ positioning on different policies. These assess the policies of various parties against the policies of that particular organisation. Again, it may seem to us within the political system that it is perfectly logical that it does not automatically mean that you are seeking to procure or promote the election of a candidate, but we need clarity for everyone outside that that is the case. People are not normally involved in the political process. It is not absolutely clear at present whether this activity would or would not be regarded as promoting or procuring the electoral success of the party or candidate that comes out best in that score-card assessment. Again, a little more clarity would be extremely helpful. Even if we were forced back on to the 2000 Act, rather than producing this new Bill, we would be wanting to deal with that particular problem as a matter of urgency.
A remote suggestion that a candidate has done something right by, say, an organisation congratulating that candidate at a press conference for adopting a particular policy, is a grey area in precisely the terms that have already been referred to in this afternoon’s debate. It is important that we should make sure as soon as possible that this amendment could provide an opportunity to clarify the situation once and for all. The Electoral Commission advice is that a non-party organisation could not be accused retrospectively of “promoting or procuring the electoral success” of a candidate or party, just because that party or candidate had adopted some of the positions of the organisation. The House, however, is entitled to ask the Minister this afternoon to give that position his very clear attention so that we can be sure that we are clarifying the law as it stands and as it would seem to be intended in the Bill.
Can he also shed some light on the position after a candidate or party announces its support for a policy which is supported by a non-party organisation? My understanding is that, providing there is not a massive increase in the scale of the organisation’s campaigning clearly as a result of promoting the candidate who is supporting its view, then it would not reasonably be regarded as campaigning for that candidate simply by virtue of doing what it had been doing all along. Again, however, it is a grey area. I would welcome some greater clarity.
Some clarity on these issues is just what a lot of campaigners—be they charities or not—are asking us to undertake this afternoon. That is our principal task in your Lordships’ House. We generally do it very well. I hope that we are going to do it again today. These amendments are vital tests to see whether this Bill can be made both clearer and more workable than the present law. I hope, therefore, that they will be given the very active consideration of the Minister as well as other Members of the House.
Lord Harries of Pentregarth
My Lords, I, too, should declare my interests as listed in the register; in particular the fact that I am a trustee of the Woolf Institute. I would like also to thank the noble Lord, Lord Tyler, for working so assiduously, conscientiously and sincerely to try to move this terrible Bill on from where it started off in order to achieve something that might be workable.
I should like briefly to comment on the attempt by the noble and learned Lord, Lord Hardie, to achieve a better definition of “controlled expenditure”. The commission thought very hard about that definition but, in the end, we felt that in the time available we could not come up with anything better than what we have at the moment. We reckoned that the political reality was that we had to work with what we have under the heading, “Meaning of ‘controlled expenditure’”. However, our strong recommendation is that this is one of the areas that is to be considered by the review, which the Minister has assured us will take place after the 2015 election. Certainly if the definition of the noble and learned Lord, Lord Hardie, were to be accepted, it would immediately exempt all charities from the Bill because, of course, their primary purpose cannot be to promote or procure the election of a particular party.
Baroness Mallalieu
My Lords, I support what has been said, not only by the noble and right reverend Lord, Lord Harries, but by the noble Lord, Lord Tyler. I am aware of a number of campaigning organisations that have been to see Ministers, expressed their concerns, and been told repeatedly, “You have absolutely nothing to worry about; you would not be caught by any of this”. It is a reflection of the way in which the Bill has been drafted that if those Ministers have got it wrong, they should not have been in that position in the first place because it should have been clear to them. It is still not clear whether, for example, a rally, a demonstration, a march, a rural manifesto, a score card or even a round-robin hustings with all candidates present would fall foul. All that needs to be made absolutely clear. I echo what has been said by the noble and right reverend Lord: it is no good getting a quango to do the drafting; we want Parliament to do it so that people can see what is allowed and what is not.
Perhaps I may add to what has been said about the amendment in this group that I am particularly concerned about, and on which I hope the Minister will be able to reassure us straightaway today—Amendment 159B in the name of the noble and right reverend Lord, which removes from the provision expenditure relating to campaigning on,
“legislation before Parliament during the regulated period”.
Such campaigning would relate to the success or failure of legislation that was currently before Parliament in that year, and must necessarily come to an end, one way or another, at Prorogation. It would not therefore, on the face of it, directly affect the election.
I again mention an interest here: I am a supporter of Stop HS2. What would be the position if the campaign to stop HS2 could not campaign during the next year from the time this Bill is due to become law, while the hybrid Bill is passing through this House? It is expected here in the early part of next year. What of a Bill like this one? If this Bill were to reach the statute book after Christmas and another Bill in the future were to come forward before Parliament—one which directly affects the way in which campaigns can be conducted during an election period, and perhaps with some draconian restrictions—it could not be right that campaigning against that legislation should be restricted in this way and that expenditure should be controlled if we were in a year before an election.
I will repeat the point I made earlier: an unscrupulous Government could effectively muzzle opposition for an unpopular measure and would have a positive incentive to bring forward their most unpopular measures in that last year of a fixed-term Parliament. I cannot believe that the Government would wish that to be the position and I hope the Minister will be able to make it clear that he will accept this amendment or something very much like it.
Lord Hodgson of Astley Abbotts (Con)
I too am grateful to the noble and learned Lord, Lord Hardie, for giving us a chance to discuss this very important matter this afternoon. I have not participated in the Committee stage of this Bill so far, so I need to declare an interest as a trustee of various charities, which are in the register of interests, and as the official reviewer of the Charities Act, appointed by the Government 18 months ago.
I would like to ask my noble and learned friend for some reassurance on the implications of Clause 26(2); in particular, I am following through the remarks of my noble friend Lord Tyler about unintended consequences. The noble Baroness, Lady Mallalieu, referred to round-robin meetings at general election campaigns, and I want to use that as a practical example. If a charity were to invite all parliamentary candidates in a particular constituency to one of the round-robin meetings, I presume that it would not then be caught, because it is not promoting or procuring the electoral success of one or more particular registered parties. However, suppose it was decided by the charity specifically not to invite one party: does that then mean that it is caught because—by leaving one party out—it is promoting or advocating the policies of the rest?
The particular concern that has risen in my correspondence was from black, minority and ethnic charities, which may not wish to invite—for obvious reasons—the British National Party to one of their round-robin meetings. They are concerned that, by so doing, for perfectly obvious reasons, they may inadvertently fall into the trap of, or the category caught by, the provisions of Clause 26(2). This is a narrow but important point for these quite vocal minority charities, and I hope that in due course, perhaps by writing to us, my noble and learned friend will put on record whether these people’s fears are groundless.
Lord Phillips of Sudbury
It may help my noble friend to know that, in the most recent guidance put out by the Charities Commission, entitled Charities, Elections and Referendums, there is quite a large section on public meetings and who is invited to them. It is profoundly commonsensical, so he will have some reassurance. It will not, of course, apply to non-charitable NGOs, but at least it applies to charities.
Lord Hodgson of Astley Abbotts
I am grateful to my noble friend. Of course, we are now talking about the Charity Commission: the question is, will the advice from the Charity Commission and that from the Electoral Commission be joined up? This is an issue which we shall come back to later, with amendments. I do not doubt what my noble friend has said, but the heart of the problem is the confusion about whether the thinking is joined up and what might fall through the cracks between the two sets of guidance.
Baroness Pitkeathley
My Lords, I declare my interest as patron of several charities, but particularly as vice-president of Carers UK, a campaigning charity.
I have always had a lot of bafflement about the Bill. I am baffled as to why it was introduced in the first place by a Government who have always set such store by the big society, who have repeatedly assured charities of the vital place that they occupy in public service provision and, moreover, who have set such store by putting the consumer voice at the heart of policy-making.
I am baffled, too, by how the Government have spent the pause period. It was intended to enable them to listen and think again as the result of the extraordinarily negative reaction to the Bill, especially Part 2. Clearly, the Government have neither listened nor thought again. I remind them of what consultation means: it means not only listening, but acting as a result of what you have heard. It is clear from what others have said that we still have not had enough reaction from the Government. We now hear that the Government’s reaction and the actions that they propose will not be given in time for this Committee stage and perhaps not until very near Report. The provisions of the Bill, I am afraid, remain excessively broad in scope. There is too much discretion for the Electoral Commission and far too much uncertainty remains. That, as we have heard from other noble Lords, will trip up charities and stifle their voices. Why the rush for this Bill? It is clearly not yet fit for purpose.
The commission on the other hand—I pay tribute to the noble and right reverend Lord, Lord Harries, and his commission—has used the pause very effectively indeed. The result of its work is before your Lordships in the form of the excellent report and package of proposals that have been put together, which we shall debate not only in this section but elsewhere in the Bill.
So far as controlled expenditure is concerned, I will only say that it is vital that there is clarity—indeed, not just clarity but certainty—about whether and when which activities will count towards controlled expenditure. The group of amendments, particularly those of the noble and right reverend Lord, Lord Harries, and his colleagues, will go some way to addressing that issue, and I urge the Government to accept them.
Baroness Hayter of Kentish Town (Lab)
My Lords, I also join in wishing the absent noble Lord, Lord Wallace of Saltaire, a speedy return—not that we do not feel safe in the hands of this noble and learned Lord, Lord Wallace, but it would be nice to see them both running around again. I also declare my interest as a patron of the Blenheim Trust and trustee of the Webb Memorial Trust.
I echo the concerns expressed by a number of noble Lords about the Bill and support the thrust of their amendments, which aim to make this bad Bill a little less bad. I also want to argue that Clause 26 should not stand part of the Bill. As has been said, the Government paused, but not for long enough and, more seriously, they then did nothing. There was no consultation—which as we have just heard is about more than just listening—because whatever they heard they made no changes. Even today, after all that, we have only the promise of a review about whether the Bill is fit for purpose after we have had an election with it, and the promise of a revision of the thresholds, but without the all-important figures before us. The Government’s inaction is in stark contrast to the NCVO and the Harries commission, as my noble friend Lady Pitkeathley just said.
The NCVO heard from 140 of its members and engaged with MPs, civil society and lawyers, and, as we have heard, took evidence. It talked, it thought, it listened and responded. The Government, by contrast, refused a proper committee to take evidence but then failed to use the time to produce their own amendments. They have failed to ask for written evidence and they have failed to produce a report of what they heard.
They have still failed to believe the warnings of chill, uncertainty and criminal sanctions—warnings and concerns that the Women’s Institute, Crisis and Sense About Science have repeated just this morning despite, or perhaps because of, the meetings that they have had with Ministers. The Government have failed to listen to the Royal College of Nursing, which says that the Bill will restrict the activities of organisations that seek legitimately to influence public policy in the run-up to an election. Indeed, the nurses say that if they are curtailed from raising concerns, this may pose a risk to standards of care in the NHS. Not only did the Government not heed these warnings, they have sought to dismiss them by asking others, not themselves, to change their view of the Bill. It is really no good the Minister today, or indeed Mr Brake, telling these groups that they need not worry if their own lawyers and the Electoral Commission tell them that they may well be in scope.
Lord Greaves
I have listened with great interest to the noble Baroness, but it seems that all she is doing is repeating her Second Reading speech. What we have heard about so far, and what we have down for Committee, is a whole series of amendments probing particular parts of the Bill and putting forward very constructive and, in many cases, sensible proposals to improve it. Why is the noble Baroness still making a Second Reading speech, and why has the Labour Party not put down a single constructive amendment for discussion in Committee?
Baroness Hayter of Kentish Town
We have a clause stand part debate and the point is to argue that this increase in scope does not belong in the Bill. That is the purpose of this, and the clause stand part debate is in our name. It is absolutely because we do not accept the enormous expansion that this clause brings in. We had expected, at this stage, because of the pause, that the Government would give an indication, even if not through amendments, of their response to the dissatisfaction at Second Reading. Our surprise is that we meet today, five weeks later, and there is not a single indication that the worries raised either by the two reports from the noble and right reverend Lord, Lord Harries, or at Second Reading, find themselves in any way reflected, given that no government amendments have been tabled for today.
Lord Tyler
Is the noble Baroness’s position that she wishes to leave PPERA 2000 just as it is, unamended? That is not the position of the commission of the noble and right reverend Lord, Lord Harries, or indeed of any of the organisations that I have met. It therefore seems extraordinary that she is prepared to leave that status quo in place.
Baroness Hayter of Kentish Town
I do not think that any one clause quite does that, but it is interesting if that is the noble Lord’s interpretation. Assuming that we take the Government’s intention as genuine—we can perhaps agree that this should just be about transparency—our view is that the extension of the scope has the unintended consequence of extending it from purely publications to an enormous range of other activities and things such as staff costs, transport and hire of halls. That fundamentally alters the position, which is what we are questioning. Is the effect of the Bill the same as the intent—transparency—or is the effect the chilling one that every charity and community group is telling us about? It feels like watching the Army march, with one young soldier out of line and his mother saying, “My son is marching properly but everyone else is out of step”. It seems that everyone who is commenting on the Bill has worries about the effect—except, of course, the Minister.
It was interesting and very noticeable that Lib Dem Members stood up when I used the words Sheffield Hallam. Can the Minister confirm my interpretation—it would also be interesting to hear from the noble Lord, Lord Tyler—on whether, had the Bill been an Act in 2010, so looking backwards rather than forwards, the NUS-Lib Dem antics over tuition fees would have been permissible? My reading is that they would not have been, that the NUS would have been caught had it spent too much. I have the feeling—and the NUS shares the figures on this—that, including events, press campaign tools, photographs, travel and related staff costs, the photos of those various Lib Dem candidates pledging not to increase tuition fees would have been caught by these rules, therefore requiring the NUS to register and account for all its costs. The interesting question is whether that would be the case.
Lord Wallace of Tankerness
I wonder what the noble Baroness is thinking. Activity by candidates, which is caught by other parts of the PPERA, is completely different from non-party expenditure, which is what we are debating in Part 2 of the Bill. I want to give the noble Baroness the opportunity to tell me what I may be missing, but activity by candidates seeking election is clearly political.
Baroness Hayter of Kentish Town
The NUS and other student groups have raised an interesting question about work done in the year before an election. Can the noble and learned Lord assure the student groups—and it is the Bangor student union that has been writing to noble Lords—that they can continue to campaign? The fact that student groups are concerned is another example of the uncertainty about this issue. It is not just charities: other groups would also need to be concerned that expenditure on a campaign like tuition fees—or the Stop the War coalition, which we knew rather a lot about—early on before a general election could fall within this. If a political party adopted what another group had been campaigning on and that became a big issue at an election—I recall that the Iraq war was such an issue—then the work done maybe 12 months before the election would be caught by this provision. If we understand it correctly—and this is why a stand part debate is absolutely right for this bit—this clause would have the effect of expanding the scope of the Bill to bring into account the cost, in that 12 months, of activities like rallies, marches, hire of transport, stewarding and all those sorts of things.
The other point I want to raise on this clause is the administrative burden brought in by the addition of these types of activities; they are separate from publications, which are relatively easy to account for. It is interesting that another part of the Government is doing a lot about getting rid of red tape at the moment. Last month, this House agreed a statutory instrument allowing small companies to no longer do full accounts if they do not exceed two of either: gross assets of over one-third of a million pounds, a turnover of over two-thirds of a million pounds or an average of 10 employees. That will not apply to charities, which are excluded, but it will exempt other small groups from having to do full accounts. However, those exact same groups, having been relieved by BIS from all that red tape, will, because of the extended activities related to the items included in this clause, have to go through an enormous, complicated, bureaucratic form-filling process.
This is not about taking the big money out of politics. These groups are not about getting elected. They are about giving a voice to the unrepresented and the unheard. They are a key part of our democracy and perhaps that is what the Government do not like. They have not responded to the concerns of these groups. The Electoral Commission—the Government’s own adviser—says:
“Because the Bill brings some kinds of activity into the regime for the first time, we have said to the Government that the wording that defines controlled spending needs close consideration and scrutiny … to assess the cumulative impact … on campaigners, taking into account … the scope of controlled spending … lower thresholds”,
which we will come to, “lower spending limits”, which we will come to,
“new limits on spending in constituencies”,
which we will come to, and, “concerns about administrative burdens”. We will come on to these points, but they all flow from this clause, which extends the scope. The Electoral Commission urged the Government to think very carefully about the wording. As we have heard from the noble and learned Lord, Lord Hardie, those concerns remain or he would not have moved his amendment.
I am sorry that some noble Lords seem to think that this is a Second Reading issue. To me, this is a part of Committee, a way of saying to the Government that if what they intend is transparency and this Bill fails to produce it but instead produces unintended consequences of fear, of people not campaigning when they want to, surely this is the point for us to say to the Government that the wording of this clause is not good enough. The Government should both explain why they have failed to find a solution to the concerns that were raised at Second Reading and give a reason to the House why this clause should stand part of the Bill.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords who have taken part in this important debate on the core definition. In particular, I thank the noble and learned Lord, Lord Hardie, for moving his amendment, which initiated the debate. The noble Baroness, Lady Hayter, indicated correctly that the stand part debate was part of this group. Actually, the next group also includes amendments relating to Clause 26.
Clause 26 seeks to amend the definition of what is regarded as controlled expenditure for recognised third parties. I want to be clear about what we are doing and what we are not doing. Yes, we are widening the range of activities for which campaign expenditure by a recognised third party will be treated as “controlled expenditure”. Schedule 3 inserts a new Schedule 8A into the Political Parties, Elections and Referendums Act 2000. The new Schedule 8A expands the activities that will count in a way that closely reflects the scope of the rules for political parties. That change means that not only will written “election material” be regulated but so will other events such as media work associated with an election campaign by a third party. The next group of amendments goes over these changes in some detail.
What we are not doing is widening what the spending must be about. Expenditure is only controlled expenditure if it,
“can reasonably be regarded as intended to promote or procure electoral success”
of a party or candidates. I am particularly grateful to my noble friend Lord Greaves—who I hope will continue to be an election agent for many elections to come—for summing it up. He said that in seeking the objectives of greater transparency, we should not have a chilling effect. That is an objective that we share and seek to implement in this Bill. We do not want our national politics taken over by super-PACs—as he said, “big bucks from big boys”—and we do not want a situation where it is possible for a third party organisation to spend more than the candidates can legitimately spend. I agree that what we are seeking to do is a listening exercise. The noble Lord, Lord Rooker, summed it up correctly. What Governments do in Committee is listen, get the mood of the House and reflect on what has been said, and that is certainly what we intend to do.
We are aware of the concerns expressed by charities and voluntary organisations that the proposed test will impact upon their normal day-to-day activities. The Government believe that, by not changing the existing test for controlled expenditure, charities, voluntary organisations and other campaigners should be reassured that their normal engagement with public policy will not be subject to regulation as long as it cannot,
“reasonably be regarded as intended to promote or procure electoral success”
of a party or candidate.
I will pick up two specific concerns that were expressed. The noble Earl, Lord Sandwich, expressed that concern about small charities—we will come on to the thresholds later—but he also mentioned the importance of volunteers working with small charities, which I certainly recognise. I can indicate to the noble Earl and to the House that volunteer costs will not have to be included in the calculation of staff costs because volunteers are excluded from the calculation of staff costs by virtue of Section 87(2)(b) of the 2000 Act.
My noble friend Lord Hodgson asked about hustings meetings if not all candidates are invited. My noble friend Lord Phillips made reference to Charity Commission guidance on this. My understanding is that the Electoral Commission has said that it expects non-party campaigners to apply a similar approach to current hustings guidance. Subject to any change of approach in that guidance as a result of the review that is taking place, this would mean that the costs of a hustings event involving political parties will be controlled spending under the non-party campaigning rules only if all the following conditions apply.
Those conditions are: the event features party spokespeople—hustings events that feature only local candidates will be covered by the candidate spending rules, as at present; that the event is open to the public, rather than just members of the organisation that is organising the hustings; that the event features party spokespeople and not all parties contesting the election are invited to attend; and that organisers cannot provide objective reasons for their decision as to which parties to invite, such as the parties’ prominence or track record in previous elections. I recognise that this is an issue and I will certainly write to the noble Lord and ensure that that letter is available, not only, I suspect, to Members of the House but to those who have a wider interest in this matter.
The test that I am referring to has been in existence since 2000 and was in place for the 2005 and 2010 general elections. These elections did not see charities and other campaigners being prevented from engaging in and influencing public policy, although I take the point that it is “other activities” and any possible changes to the threshold that are giving rise to concern.
The amendments in the name of the noble and learned Lord, Lord Hardie, would amend Clause 26 so that only activity that can reasonably be regarded as intended for the “principal purpose” of promoting or procuring the electoral success of a party or candidate is covered. However, we believe that the introduction of a “principal purpose” test could lead to greater regulatory uncertainty, as well as an obvious avenue for avoidance, which could undermine the rules as a whole.
On the point of regulatory uncertainty, the Electoral Commission has expressed concerns that we would be retaining a familiar test but introducing a new subjective element which could lead to significant regulatory difficulty. Determining the “principal purpose” of any expenditure adds a new layer of judgment and complexity to the test and therefore could complicate rather than clarify.
The test also creates an obvious avenue for avoidance; for example, a regulation campaign presented as mainly trying to recruit members and donors could clearly also be seen to be promoting electoral success, and in these circumstances might not be covered. Under the “principal purpose” test, the fact that there was a clear intention to support a party or candidates would therefore be immaterial and not subject to regulation.
This issue was looked at by the Committee on Standards in Public Life back in 1998, which led to the establishment of the 2000 legislation. Paragraph 10.78 of the committee’s report refers to activities in the 1959 general election—I can just about remember accompanying my parents to a polling station and having the day off school. It says that,
“a privately owned steel firm, Stewarts and Lloyds, ran a series of advertisements in daily and Sunday newspapers, most of which were thought to have large Labour readerships. The advertisements were clearly intended to discourage voters from voting Labour. That is not, however, what they said. On the contrary, the Stewarts and Lloyds slogan insisted: ‘It’s not your vote we ask for, it’s your voice. Speak up against state-owned steel’. In one advertisement, published in the pro-Labour Daily Herald, the firm stated baldly: ‘This advertisement is not trying to sway votes in any political election’”.
The committee goes on to say:
“It is clear to us that advertising of this kind … has as one of its objects or one of its foreseeable effects, though not necessarily the only one, promoting the electoral prospects of one or more political parties and damaging the electoral prospects of one or more others. It is simply naive to imagine that organisations that send out explicitly political messages in the midst of election campaigns, or shortly in advance of them, are engaged innocently in generalised, nonpartisan promotional propaganda”.
That is why there is concern about introducing a subjective element.
The first recommendation of the most recent report of the Commission on Civil Society and Democratic Engagement, on the definition of regulated non-party campaigning, says:
“PPERA and the Lobbying Bill include a definition of non-party campaigning that is both ambiguous in meaning and makes too many campaigning activities subject to regulation that are not intended to promote or procure the election of a registered party and its candidates”.
If the campaigning is not intended to procure that, by this very definition it will not be regulated or controlled expenditure. The only difference is whether there is a subjective test or an objective test. For reasons of trying to minimise avoidance, the objective test is the proper one. Amendment 159B tabled by the noble and right reverend Lord, Lord Harries, amends Clause 26 so that any campaign which can reasonably be regarded as intended to promote or procure electoral success involving legislation going through Parliament during the regulated period would not count as controlled expenditure. Again, to incur controlled expenditure a third party must be carrying out an activity that it would be reasonable to regard as intended to promote or procure the electoral success of a party or candidate.
I take issue with one thing that my noble friend Lord Greaves said relating to campaigning during a Scottish parliamentary election or a European election over issues in Parliament at Westminster. He said that he thought that normal campaigning activities ought not to be prevented. I am interested in the words he used: “ought not to be prevented”. There is nothing intentional here to prevent activities. If it is an activity which would pass the threshold and be seen as intended to promote or procure an electoral advantage for a party or for a candidate, then it is for registration for regulation. The purpose is not to prevent it. I understand why he said that; it is a common slip of the tongue. Indeed, the noble Baroness, Lady Hayter, asked how many of Beatrice Webb’s campaigns would be ruled out. There is nothing here that would rule them out unless they reached the spending limit, which the Green Party did not even reach at the last general election.
However, I take on board the perfectly legitimate concern that I have heard at a number of the meetings I have had about the possibilities of a chilling effect. That is why it is important that we look at these issues and try to ensure that we have proper transparency without introducing a chilling effect. I plead guilty at some of the meetings to a slip of the tongue that this will rule out a particular sort of campaigning. It is not surprising that some charities and third-party organisations get the impression that they will not be allowed to campaign, but that is neither the purpose nor the effect of this part of the Bill. If you are going to undertake campaigning activities which would procure or promote the electoral advantage of one party or a candidate, then if you reach a particular threshold you should be registered and there will be the transparency that goes beyond that. We can debate the size of the spending limit it would be subject to, but many of the charities which have expressed concerns would come nowhere near the top spending limit that has been suggested in their normal activities.
Lord Greaves
I accept everything that my noble and learned friend said about the difficulty of getting absolutely clear in our minds what we are talking about. We are of course talking about whether expenditure comes within the regulation, not whether it is ruled out. However, let us imagine that during a UK general election the Scottish Parliament is considering a Bill that is highly controversial in Scotland and that is being promoted by the present SNP Scottish Government but opposed by everybody else. If organisations in Scotland lobby on that Bill during the regulated period running up to a UK general election, will they be caught or not? That is the question I am asking.
Lord Wallace of Tankerness
Our view is that if it could reasonably be seen that the purpose of that lobbying was to get the Scottish Government to change their mind, then no, the organisations would not be caught. However, if to further that campaign they were to say, “And by the way, in this general election don’t any of you vote SNP because that will only encourage them”, then I think that would cross the threshold. But if the focus and intention was to try to change the policies of the Scottish Government with a particular piece of legislation, it would not be a campaign that was intended to influence the outcome of the United Kingdom general election.
Lord Harries of Pentregarth
Is this not a fundamental threat to democracy? Let us take an English example. One party wants an extra runway at Heathrow. That is opposed by another party. If this is going through during an election year, surely campaigning groups should not be hindered in any way. They should have no curb on their election expenditure at all. It is a fundamental fact of democracy. They should be allowed to campaign.
Lord Wallace of Tankerness
My Lords, of course they will be allowed to campaign. I agree that it would be a travesty if they were not allowed to campaign. But if that campaign then crosses a line from campaigning on a perfectly legitimate issue to saying, “In our campaigning we advise you not to vote for A, B, C and D and to vote for F, G, H, J and K”, it is not that they are stopped from doing that; it is just that it becomes a regulated activity and they will have to account for the funds that they spend on promoting the election of particular candidates or the non-election of others—and there would be a top limit, just as political parties have limits on what they are allowed spend.
There is no question of them not being allowed to campaign. I fear that sometimes this debate has been unfortunate—as I say, we have all possibly been guilty of using loose language at times—because the impression has been given that we would not be allowed to campaign. It is not that we would not be allowed to campaign; it is just that if a campaign moves from a campaign on an issue to a campaign that seeks to promote or procure the election of a particular party or candidate, it becomes regulated expense.
Lord Harries of Pentregarth
I am sorry to delay the Minister further, but with due respect I do not think he is really facing up to the difficulty of the present definition of qualifying expenses. I agree with him that if a particular campaigning group says, “Therefore you must vote A, B or C”, of course that would need to be regulated. But it still might be liable to be regulated even if it did not do that, because the Bill is quite clear that you do not have to mention a particular party, and that it does not have to be your primary purpose. It could be reasonably interpreted that if one party is supporting an expansion at Heathrow and one is opposing it, by implication the campaigning group wants one party elected rather than another. There are fundamental difficulties here.
Lord Wallace of Tankerness
That reflects some of the amendments tabled by my noble friend Lord Tyler, to which the noble and right reverend Lord, Lord Harries, lent his support. We are grappling with real issues here as to the clarity or otherwise of when people will cross a line. I accept that there are some cases which are quite clearly on one side of the line and others that are nearer the margins. The noble Baroness, Lady Hayter, said that some people had been advised by the Electoral Commission that what they were proposing to do would be regulated. I would say to them, “Take the advice of the Electoral Commission. If it says you should be regulated, then register”. There is nothing stopping people campaigning. In fact, they might campaign with a lot more confidence if they know that they are doing the right thing because they have taken the advice of the Electoral Commission.
Baroness Hayter of Kentish Town
I dread going on to other clauses, because I am going to get told off, but this is rather important. Registration is a threat to many of these organisations. They do not have the staff to fill in the forms. Charities are worried that by being registered with the Electoral Commission rather than the Charity Commission, it will look as if they are political because of the word. The bureaucracy of it frightens them. Some organisations will be responsible for 15 or 20 local groups. They will get caught by coalition funding. The Minister says, “Let them register”. The problem is, that in itself is a threat. Maybe he has misunderstood the threat of registration to these organisations.
Lord Wallace of Tankerness
My Lords, I do not think that I have, because I indicated that one of the concerns we have is the potential chilling effect. I am trying to make it clear that the threat is not that they cannot campaign at all. I regret sometimes the language used. It may be inadvertent, but the problem is that if we as politicians dealing with the Bill say that people will not be allowed to campaign on certain issues, it will be picked up outside and people will believe that they might not be allowed to campaign on certain issues. I hear what the noble Baroness says about the threat. I do not believe that registration is necessarily a threat. It is part of trying to secure transparency, as my noble friend Lord Tyler said. It is trying to secure the right balance, because the more transparency you have, the more likely it is that you will have more regulation. We are doing an important task as a Committee, which is to put up issues to make sure that we try to achieve the right balance.
In relation to other amendments, my noble friend Lord Greaves sought to exempt activities relating to research, press conferences, meetings and the lobbying of government and other legislative bodies. Again, the same explanation applies. The day-to-day activities of third parties, including working with legislative bodies across the United Kingdom, is not, and under the Bill would not be, subject to regulation under PPERA. Only activities which a reasonable person would regard as intended to promote or procure electoral success are captured.
Amendment 159D is about the same issue: issues being debated in another legislature. In the European election, the European Parliament cannot determine whether Britain continues its membership of the European Union, but it is not impossible—it does not need too much imagination—to think that it might be what third parties might be campaigning on in the forthcoming European elections. If that is what they are campaigning on to promote one party over another, it is not unreasonable, if they meet the thresholds, to require them to register.
The noble Lord, Lord Walton, talked about the all-party groups and the important work that was done in relation to muscular dystrophy. I understood him to ask whether the charities that support those groups with staff will be covered. It is difficult to see how the work of all-party groups—he knows this, as he showed in his remarks—could be caught or how the groups could be promoting electoral success in the reports they produce. However, the difference might be if one of the charitable bodies that had been supporting the all-party group were to turn around and say, “We helped produce this report. Member X and Member Y are really good people and people should go out and support them”. I am not suggesting for one minute that they would do that, as charity law might make it very difficult for them, but that would be trying to procure an election result and so on. Simply supporting an all-party group doing the very valuable work that the all-party groups do could not be seen as promoting a particular—
Lord Walton of Detchant
If, say, an all-party group on heart surgery had decided, on excellent scientific advice, that it wished to support the continuation of paediatric cardiac surgery in one centre but not in another, which was in a different constituency, would that be regarded as being in breach of the law?
Lord Wallace of Tankerness
In all these hypotheticals, you hesitate, but I cannot see how supporting what must essentially be a medical judgment by a group to support a particular centre over another—it is not supporting a particular candidate or party over another—would constitute trying to promote a political party. It might be promoting a particular medical centre, but that is not the same as a political party.
Baroness Royall of Blaisdon
My Lords, I accept that the issue relating to APPGs is difficult, but I am sure that there is—forgive my ignorance—an anti-smoking APPG that may well be wholly in favour of standardised packaging for cigarettes. We know that we all agree on this measure, at the moment, but if, six months before the election, this had not been resolved and the APPG still seemed to support the introduction of standardised packaging on cigarettes—which is something that the coalition used to be against and we were in favour of—would that be caught by the new law?
Lord Wallace of Tankerness
I find it difficult to see how an all-party group, supported by all parties, would fall foul of something, because by its very nature that would be difficult. The noble Baroness raises a point that was at the core of the points made by my noble friend Lord Tyler about when there is a change in a particular policy. This brings us to an important issue about what should be in the Bill and what should be left to guidance. This point was also made by the noble and learned Lord, Lord Hardie, who asked about groups changing their policy position in the middle of the controlled period.
Lord Hardie
I was not speaking about a group changing its position but about a group remaining constant and a candidate then adopting the campaign. I accept that retrospectively the expenditure is protected, but what about prospectively? What about future expenditure?
Lord Wallace of Tankerness
I apologise; I misrepresented the point. What happens if the group maintains its campaign and one party suddenly comes on board and, presumably, one party breaks rank and retreats? The Electoral Commission’s guidance is clear that if a party or candidate subsequently adopts a campaigning organisation’s policy, it will not be caught unless the campaigning organisation draws attention to the fact or increases its campaigning as a result. In addition, a group must be reasonably regarded as intending to procure electoral success. If at the time a party or candidate does not have a policy on the subject of the organisation’s campaign, it is very difficult to see how it could be seen to be promoting that candidate or the party. Indeed, it would seem to be impossible to objectively argue that a policy campaign by a third party could be intended to favour a party or candidates if those parties’ or candidates’ views on the policy were unknown at the time.
A question was also asked about the scorecard count. A third party setting out a scorecard 11 months before an election could reasonably be regarded as trying to get parties to change their policy, not necessarily to promote electoral success. However, a third party publishing a scorecard a week before election day might be regarded as promoting the electoral success of a party or candidate.
The noble and right reverend Lord, Lord Harries, put his finger on it by saying that many of the groups he has talked to would rather that this was in legislation. On the scorecard issue, I sought to show that there were shades of this. It can sometimes be very difficult if you try to pin it down too much in legislation. Often when we legislate with specific examples—I have heard this on other subjects in your Lordships’ House—we can do more damage and cause more uncertainty by what is left out than by what is there. It does not allow the flexibility to take full circumstances into account.
What has been raised is a perfectly legitimate point for this Committee to express views on. We as a Government should consider whether it is better to have these things set out in statute, subject to the misgivings that I have expressed about inflexibility—once it is there, it takes primary legislation to repeal it—or whether it is better to allow that position to be determined by guidance.
The next paragraph in the report from the Committee on Standards in Public Life states:
“That said, we acknowledge, of course, that in some cases it will be hard to determine whether the advertising and other propaganda undertaken by an individual or organisation other than a political party is or is not intended to affect an election outcome. Ultimately it will be up to the courts to decide in such cases, but one role we envisage for the Electoral Commission”—
which did not exist when this was written—
“is in giving authoritative but not legally binding advice on such matters”.
It would appear that those who set all this in motion some 15 years ago saw giving guidance as a proper role for the Electoral Commission. As I indicated in my opening remarks on the previous amendment, we engage with the Electoral Commission and believe that it would be helpful to have draft guidance available. I also accept—this is something that we want to reflect on—the views that have been expressed in the House that some of this would be better put in primary legislation. That said, as I indicated, there are drawbacks with that as well.
I hope that in that spirit I can invite the noble and learned Lord, Lord Hardie, to withdraw his amendment.
Lord Hardie
I thank noble Lords on all sides of the House for participating in this full and interesting debate. It is quite clear that there is a certain consensus that it is essential we get the balance right in the Act, avoid unintended consequences and clear up grey areas. I note from the noble and learned Lord the Advocate-General that the Government will consider the extent to which the legislation should be amended. In light of that, I will reflect on everything that has been said today. In the mean time, I beg leave to withdraw the amendment.
Lord Morris of Aberavon
“(5A) Before subsection (5) insert—
“( ) Any limit applying to campaign expenditure under this Act where that expenditure is incurred by or on behalf of third parties in connection with the production or publication of election material which is made available to the public at large, or any section of the public in Wales, shall not include costs incurred by the translation of those materials from English into Welsh or from Welsh into English.””
Lord Morris of Aberavon (Lab)
My Lords, this amendment is in my name and that of my noble friend Lord Elystan-Morgan. I shall not take up too much time as I hope that the Minister will give assurances that I, and those concerned with the Welsh language, have nothing to worry about. The Welsh language is a devolved matter under Schedule 20. It is a matter for the Welsh Government. However, we must always be vigilant when Westminster legislation may affect it and might injure the proper use of the language. The foreword of the Westminster Welsh Language Act 1993, regarding the setting up of a board to promote and facilitate the use of the language, states,
“in the conduct of public business and the administration of justice in Wales the English and Welsh languages should be treated on a basis of equality”.
I can claim that, as a young Member of Parliament as far back as 1962, I was the first in a document to the Government of the day to use the expression “equal validity”. It was subsequently adopted and is now enshrined in Westminster legislation. Nothing should be done that might undermine that principle, even unwittingly. I have received representations from the Welsh Language Commissioner seeking assurances on this point.
Part 2 of the Bill regulates more closely the spending during election campaigns by those who are not standing and are not registered as a political party. It also reduces the number of spending limits by non-political parties and registered third parties. Organisations must comply with “controlled expenditure” limits for that organisation. This is defined as the expenditure associated with the production of material made available to the public at large. The Welsh Language Commissioner is concerned that the cost of translating election material falls within this definition and I tend to agree with her. The Bill makes no provision to reduce or offset the cost of such translation in relation to the Welsh language and could therefore adversely affect the present situation. Reduced expenditure as proposed in the Bill would adversely affect the provision of bilingual election material in Wales. It is possible to envisage a situation where some non-political parties and third parties chose not to issue bilingual election material for fear of reaching or exceeding the threshold. Hence, I need an assurance that the proposed spending limits should take account of the additional costs that come with providing election material in Wales. My amendment is drafted to seek to ensure that the limit in the Bill on expenditure shall not include costs incurred by the translation of those materials to Welsh or to English as the case may be. I beg to move.
Lord Harries of Pentregarth
My Lords, I will speak to Amendments 165B, 161A and 165C in my name, which I put forward on behalf of the Commission on Civil Society and Democratic Engagement. First, I pass on the apologies of the noble Lord, Lord Cormack, who has a long-standing engagement and could not be here this evening. His name is added to the commission’s amendments. He has promised to be here on Report not only to speak but to vote for any commission amendments. Many noble Lords have been kind enough to recognise the quality of the report brought forward by the commission. I ought properly to pass on the thanks to those to whom it is properly due—the team of people from charities and campaigning organisations who have been working night and day in order to produce it.
Charities and campaigning organisations accept that a wider range of activities needs to be taken into account. It is part of their wider conviction that charities should be regulated and be transparent. There is absolutely no problem about that. As Amendment 165B points out, there are real difficulties about including staff time in expenditure that counts as a qualifying expense. There is the difficulty of separating staff time used on campaigns generally from that which is directed specifically towards elections, particularly if this is to take place during a whole year—the regulatory burden on charities would be quite disproportionate. The Royal Society for the Protection of Birds says in the report:
“Widening the activities that count towards controlled expenditure would require significant new reporting procedures, including time sheets to account for staff time connected with campaigns and systems for recording spending in regional offices. This would siphon money away from conservation work and amount to an unnecessarily onerous regulatory burden: more than the £0–800 per organisation for implementation estimated in the Impact Assessment”.
It is also important to note that the Electoral Commission, though its long-term view is that staff time should be included both for third-party organisations and political parties—for which at the moment it is not included—says quite clearly in its latest briefing that such are the difficulties of including this that it should not be included before the 2015 campaign. That is a very clear and strong recommendation.
Subsection (1)(b) of the proposed new section in Amendment 165B concerns translation. We firmly support what the noble and learned Lord, Lord Morris of Aberavon, has said. The cost of translation from Welsh to English and English to Welsh should not be included. Our amendment goes slightly wider than simply translation because it would also include things such as Braille. The Electoral Commission also supports this although it says that production costs should not be included. I do not think the Commission on Civil Society and Democratic Engagement would agree with that because the production costs are also extra as a result of the translations. It is not just the job of hiring a translator but also the costs of printing the extra pages in Welsh.
Proposed new subsection (1)(c) concerns safety and security. This is obviously one of the concerns that arose from Northern Ireland. At the moment our amendment refers to safety and security for meetings. The Electoral Commission has very valuably added that “rallies” should be included here and I think the Commission on Civil Society and Democratic Engagement would certainly support that. Proposed new subsection (1)(d) refers to documents making material available for people who are either physically or in any other way disabled. That, again, is an extra expense which should not be counted as part of the qualifying expenses. I hope that the Government will also bring forward an amendment to ensure that extra expenses by disabled groups—for instance, to get them to meetings, which can amount to quite a lot—would be included in subsection (1)(c) of the proposed new clause, which obviously concerns the safety of disabled people at meetings and rallies.
Proposed new subsection (1)(e) refers to communications with supporters. A clear distinction is made in the legislation between the general public, who are brought into the regulation, and supporters. However, “supporters” is defined rather narrowly in terms of donations. Of course, the modern understanding of “supporters” over all sorts of different media is much wider than that. The commission believes that it has a way of solving that by reference to the Data Protection Act, whereby those who have given consent to be contacted by the organisation, in accordance with the Data Protection Act, should count as “supporters”. We hope very much that the Government will look sympathetically at that as a way of making a sharp distinction between those who are supporters and the general public.
Amendment 161A refers to market research. The commission does not believe that general market research should count as a qualifying expense. It should only do so for the purpose of assessing people’s polling intentions; clearly, if it is designed to find out people’s polling intentions, it should be brought within the regulatory framework.
Amendment 165C would ensure that this entire clause could only be changed by primary legislation. The commission believe that this is such a fundamental issue of democratic rights that it should not simply be amended by a government Ministry. It should only be changed as a result of primary legislation.
Finally, I have added my name in a personal capacity to Amendment 163A in the name of my noble friend Lord Best, to which I am sure he will speak. The National Council for Voluntary Organisations did research independent to that of the commission but came up with virtually identical recommendations and one or two more. This is a recommendation that the NCVO was particularly keen to see implemented, which would exclude rallies and meetings from the list of activities which are to be counted as “controlled expenditure”.
Lord Elystan-Morgan (CB)
My Lords, I support the amendment of my old friend, the noble and learned Lord, Lord Morris of Aberavon, and also support a parallel point which was advanced by the noble and right reverend Lord, Lord Harries of Pentregarth, about Braille.
I accept the arguments forcefully put by the noble and learned Lord, Lord Morris of Aberavon, but one can take the matter slightly further. The issue is whether the translation of certain documents from Welsh into English or English into Welsh should be regarded as relevant expenditure under Clause 26. The next issue is whether the position of the Welsh language is so different from all the other cases of which one can conceive in this matter as to make it unique; that is also important.
To deal with that, I ask the Committee to indulge me for a few minutes in looking at the Act of Union of 1536; I appreciate that not many of us were around at that time. However, it has cast a long shadow over the land and nation of Wales over many centuries. The opening words of that Act were:
“ALBEIT the Dominion, Principality and Country of Wales justly and righteously is, and ever hath been incorporated, annexed, united and subject to and under the Imperial Crown of this Realm”.
It then goes on to say that there is therefore no Wales and never has been any Wales at all, as a land and nation.
Lord Wigley (PC)
My Lords, I am grateful to pursue the theme that has been running for the past few minutes, and to give support to the amendment in the name of the noble and right reverend Lord, Lord Harries. As the noble Lord, Lord Elystan-Morgan, said, it is a poignant moment for the Welsh language, in that the late Lord Roberts of Conwy is no longer with us. He played a major part in the 1993 Act and many other aspects of the Welsh language gaining status. Of course, the noble and learned Lord, Lord Morris of Aberavon, and the noble Lord, Lord Elystan-Morgan, played roles as government Ministers when the 1967 Act was passed. That Act changed the status of the Welsh language fundamentally, bringing in the concept of equal validity. However, for equal validity to work, it presumed that the individual could have access to both languages. The corollary to this was the development of the availability of forms and information in Wales through the medium of Welsh as well as English in order to respond to that principle and put flesh around it.
Over the past 40 or 50 years, there has been tremendous acceptance of Wales as a bilingual community. Campaigning organisations in the voluntary as well as the governmental sector have come to recognise the need, in order to allow citizens to have their full rights with regard to the language, to pursue, as far as is practical, a bilingual policy. Official bilingualism is what makes personal and private equal validity a meaningful concept. Some organisations may feel the additional costs that inevitably go along with publishing things in two languages to be a burden. Some organisations may, frankly, be glad of an excuse not to do it. If that were the case, it would be a step backwards—a step that might start unwinding the consensus that has been achieved with considerable difficulty and after a lot of campaigning across the political sectors. I therefore urge the Minister to give serious consideration to the principles behind this amendment and to agree, if assurances regarding the fears that have been expressed cannot be given now, that at least some thought will be given between now and Report to how these can be accommodated.
The principle of access to information is equally valid for disabled people. I have campaigned very long and hard for many years to make sure that disabled people get the information that they need. Very often, that means providing an approach in individual circumstances, sometimes in group circumstances, as opposed to providing generality. One does not generally see Braille going to every household in case an individual might need it. One might argue that it should, but it is not generally the case. However, with the Welsh language, there is a general approach; both arguments are valid, but valid in slightly different ways and in slightly different circumstances. I hope that the Government will find a way to respond to these different circumstances as they consider these amendments.
Baroness Mallalieu (Lab)
My Lords, I support the amendments in my name and that of the noble and right reverend Lord, Lord Harries, to which he has spoken so fully. I have one or two points to add. First, on staff costs, I respectfully suggest that one has to remember that as the regulated activities are going to be expanded, it is inevitable that the staff costs associated with them will grow. How those activities are to be expanded is another matter, but we all agree that there are matters that should now be included that have not been up to now. The growth in staff costs is a further reason for increasing the threshold of spending, not just from the level in the Bill, but from the existing PPERA level, in order to give a fair approach.
Secondly, on translation, I slightly hesitate to raise this matter, but it is sometimes necessary to communicate with communities that do not have English as their first language. Although there has been special pleading on behalf of Wales, which I totally accept and endorse, there may well be other communities for which that may be a legitimate expense in certain circumstances. It may be necessary to communicate, perhaps in Urdu, in relation to a particular campaign. I submit that, in order to enable a campaign to communicate, translation is something that the Minister ought to have uppermost in his mind. It is also right to say that safety and security, which the commission looked at, relates not just to Northern Ireland—although particularly so there—but also to those who steward meetings and so on. That is an expense that is very often essential and ought not to be included in regulated expenditure.
It also seems wrong to proceed with part of the recommendation of the Electoral Commission about staff costs and leave the other part behind. I have in mind the review of the Electoral Commission back in June, which suggested that rules should be widened to include staff costs for political parties. The Bill, of course, does not deal with the political parties, but it seems wrong to advance one and not the other. There should be parity between non-government organisations and political parties in respect of declared expenditure. The Electoral Commission accepted that, so far as political parties were concerned, the matter would be difficult, not straightforward, and would require more consideration because it was so complex. In making the same recommendation for non-party campaigning, it again said that it was complex, potentially controversial, which it certainly is, and needed further consideration.
It seems that there is no real urgency about the question of staff costs being included for the 2015 election. I may be wrong. A spectre was raised by the noble Lord, Lord Greaves, and I have also heard it from Ministers: what about the as yet unidentified ogre who comes out of the woodwork carrying bags of money to throw into an election campaign, perhaps in a particular area, and to distort the democratic process? What about the US-style zillionaires, of which, I have to say, there is no sign in this country? This scenario seems unlikely because we have rather different rules for television advertising and so on. However, if such people really are lurking, ready to come in and try to buy the electoral process here, surely it is for the Government to produce an amendment to the Bill that deals with that situation, rather than simply taking a big stick and thrashing all around, hitting smaller charities and organisations as well. I ask the Minister to agree that, at this stage, it is not really important to include staff costs for the 2015 election, given that we are going to have a review which should take in political parties as well.
Lord Tyler (LD)
My Lords, it must be apparent to the Committee already that a number of amendments in this group have similar objectives. I am very sympathetic to those which have already been mentioned, but I want to concentrate, before my voice gives out, on Amendments 160J, 165A and 165D. These all result directly from discussions I have had with a wide range of organisations.
The group deals with Schedule 3 and how particular activities might be excluded from the list of those which come under controlled expenditure. There is a principle in current electoral law that communication with one’s own members is not “election material”, and therefore it is excluded from the sort of controls and transparency that is being looked at here. However, membership is becoming—sadly, many of us feel—an almost outmoded concept. Organisations do not need members in order to have clear, regular supporters. Many prefer to seek funding through periodic contributions rather than through the straitjacket of an annual membership subscription. The concept may well have been more appropriate, more formidable and more general at the time of the 2000 Act, but it is surely disappearing rather quickly now. It is in that context that I believe there should be some degree of flexibility in relation to Schedule 3.
It is particularly in the nature of a non-party campaign that you can be on board on one issue, but not on another. You simply lend your support as you see fit from time to time, but you are still a committed supporter of that organisation or campaign. This idea of a committed supporter is one which the Electoral Commission itself has recognised, so it seems sensible that the Bill should pick that up and define it more clearly. Our Amendment 160J does just that. It defines a committed supporter as someone who has made a donation, or who in the past 12 months has either communicated directly with the organisation or expressly consented to receive the organisation’s communications.
The noble and right reverend Lord, Lord Harries, and his colleagues, have tried to deal with that problem in their Amendment 165B—so we are on the same track. My difficulty with their amendment is that it sets a very low bar for becoming a committed supporter. Anyone who uses e-mail knows how much correspondence we all get from people to whom we have given permission under the Data Protection Act for contact to be made. It is very easy—too easy—to give that consent. So I am afraid that the Data Protection Act is, in this context, insubstantial and insufficient. Our amendment sets the bar a little higher, so that a supporter is not just the passive recipient over decades of many quickly deleted e-mails, as might be the case with that so-called protection.
Lord Horam
My Lords, I add my voice in paying tribute to the commission chaired by the noble and right reverend Lord, Lord Harries, who very generously pointed out that it was a team effort. I am sure that it was, but it is remarkable that his report has been produced in only five weeks.
In the particular area that we are discussing on these amendments, it shows how, if the Government listen to the commission’s report and take account of it, there is a way forward whereby we can achieve what we are all looking for—to protect democracy but not see it overwhelmed by outside lobbying of a particular kind, although that lobbying may be worthy in its intention. I would slightly disagree with the noble Baroness, Lady Mallalieu. I am new to this House and may be misinterpreting things, but I do not think that we should always take a package as a whole—either the Government’s or the commission’s package. I do not think that that is the spirit of this House. What we can do, in reference to her view that we should have a view about the role of civil society, is to take into account the spirit of what lies behind the views expressed in detail, point by point, in the commission’s report. The Government would be well advised to do that.
I refer, too, to remarks made by my noble friend Lord Greaves. With regard to what he said on an earlier amendment, we are in some danger in looking just at charities and non-political party campaigners and forgetting the main body of people—the PBI, or poor bloody infantry of an election, the candidates and parties who have to go through the whole wretched business of fighting elections. That is something that we should not forget in concentrating, as we obviously are today, on the problems for charities in the electoral process. Let us not forget what a general election is all about. I know it very well, having fought 10 elections myself, with varied success.
To come to the point of the amendments, there is sense in exempting directly employed staff for the 2015 general election. It is true that the Electoral Commission has said in principle that party staff who are directly employed and full time should be included in election expenses; that would be something that it would want to press. But one accepts that in the context that we are now talking about, in the short time before the next general election, sorting all this out would be very difficult and would pose huge problems for many charities, which may have very large staffs. Most associations that fight general elections have extremely small staffs—almost no full-time staff, in many cases—and exist entirely on volunteers. We tend to forget that. I am not speaking on the Electoral Commission’s behalf, as I keep stressing, but that is something that it has wisely said.
I disagree with my noble friend Lord Tyler, in that I do not think that it would help to try to differentiate between the activities undertaken by paid staff; you either exempt them as a block or you include them. In the case of the next general election, as it says in the briefing from the Electoral Commission, they should be excluded temporarily, while the whole business of whether full-time staff should be included in future could be looked at in the review that the Government have promised for after the next general election.
Lord Greaves
I am grateful to my noble friend for giving way, and for his kind words. However, would he not agree that there is a difference between somebody who works for a charity or political party taking part in an election campaign as part of their normal job and somebody who is taken on to deliver leaflets? Political parties cannot take on people to canvass, because it is illegal to pay people to canvass, but a third-party organisation could do so. So if you pay people who normally do not work for you to deliver leaflets, surely that should be included.
Lord Horam
There is clearly a difference there, and I think that it probably should be reflected in the Bill. The fact is that the two situations are quite different.
The other issue is translation. Our noble friends from Wales put it very eloquently. It is almost an abuse to call this a translation, as though Welsh were a foreign language. This applies to other languages too. Then there is the question of making documents available to those with physical or learning disabilities and, as I mentioned in my remarks on Northern Ireland, exempting costs relating to safety or security measures. This is something which the Government have already implicitly begun to accept.
Therefore, I think this is an area where, prima facie, there can be some discussion and resolution which will be helpful to the charities, and I hope that the Government will consider this.
Baroness Hollins (CB)
My Lords, I speak to Amendments 160H and 164A, in my name and in the name of my noble friend Lady Finlay, both of which are probing amendments on the subject of controlled expenditure and qualifying expenses. There may be a sense of déjà vu around some of my concerns, in the light of the debate on the previous group of amendments, so I shall try to be brief. I am grateful to the noble Lord, Lord Wallace of Saltaire, for meeting me and colleagues from the BMA to discuss these issues and I declare an interest, as past president of the British Medical Association and the current chair of the BMA’s Board of Science.
In paragraph 1 of the new schedule “Controlled expenditure: qualifying expenses”, under the heading “List of matters” sub-paragraph (1) refers to:
“The production or publication of material which is made available to the public at large or any section of the public (in whatever form and by whatever means)”.
This description is so wide that it could cover anything and everything. I would welcome clarity on whether this would include, for example, evidence-based policy reports aimed at policymakers. Many organisations have expressed worries and are unclear as to how they will be able to engage in reasonable debate on matters of public policy in the run-up to a general election. I know that some of this has already been discussed, but I have some particular points which I want to explore.
Many organisations publish reports collating evidence to highlight areas of public policy that need further development or action. The BMA’s Board of Science, which I chair, promotes the medical and allied sciences, contributes to the development of effective public health policies and supports medical research. Through the publication of policy reports, web resources, guidance documents and briefings, the BMA plays a role in contributing to wider debate and public opinion on public health issues for the benefit of doctors and patients. Aside from the public health and scientific publications from the board, the BMA also regularly publishes factual, evidence-based reports, covering a full range of issues, from health service reform to ethical issues. Examples of policy reports across these areas include publications on: child health and well-being; drugs and dependence; transport and health; a vision for general practice; and medical ethics.
While the Bill as drafted states that only publicly available,
“material which can reasonably be regarded as intended to promote or procure electoral success”,
of a political party or candidates are regulated, there is still some uncertainty as to what this means in practice. Such publications from the BMA as I have described are factual and are geared towards policymakers rather than towards the electorate, but these reports often make recommendations in areas that may be politically contentious. For example, recent reports from the BMA’s Board of Science have made recommendations for standard packaging for tobacco and for a minimum unit price for alcohol, both of which are subjects of much current public debate. I am keen to have the Government’s reassurance that publications such as policy reports would fall outside the Bill’s regulation, should they appear ahead of an election. I welcome thoughts on what would happen if the recommendations in such publications were reported in the media in a politically biased way. Would third sector organisations be at fault, even if they had been careful to present their reports neutrally?
One aspect I want to explore further through Amendment 164A is the explicit exemption of annual conferences of third sector organisations. In the “List of matters” to be counted as controlled expenditure, Schedule 3 includes:
“Public rallies or other public meetings or events”,
After earlier debate, the Government have helpfully clarified this further:
“it is public rallies and events that are being regulated; meetings or events just for an organisation’s members or supporters will not be captured by the bill. We will also provide an exemption for annual events – such as an organisation’s annual conference”.
This is reassuring, but there is still an ambiguity as to what meetings will be included.
There are two particular areas on which I should like further detail. The first is to establish whether a membership organisation which has more than one conference annually would also be exempt. There are some organisations which hold more than one annual conference and this is still part of their normal, democratic, decision-making process. It is unclear, for example, whether the BMA, which holds multiple conferences annually for its members, would fall within the annual conferences exemption. Quite apart from our annual general meeting, there are also annual conferences for all the different specialty sections, such as general practitioners, consultants, junior doctors, public health doctors, and so on. Could the Minister clarify whether expenditure associated with such conferences would count towards the relevant electoral spending cap?
Although it is reasonable to expect that this could be addressed in guidance to follow from the Electoral Commission, an assurance from the Government about their intention on the scope of the exemption would be welcome. It would be helpful to know what would occur if such an annual conference attracted a great deal of public interest. Would it then become a public meeting that should be captured under the Bill? A members-only conference with a public element could happen in a number of ways, for example by inviting comment on health issues, the attendance of observers, or providing access to the conference via a webcast or through the media. I raised this question at Second Reading and I would welcome clarification from the Minister as to the position of members-only annual conferences in this regard, too.
Lord Ramsbotham
My Lords, I rise to speak to Amendments 165B, 161A and 165C, to which I have added my name. I find it rather distressing that, here again, we have another issue where there is no evidence from the Government that the current arrangements result in undue influence of non-party campaigning in elections. Where is the justification for starting down this route?
On Amendment 165B, I declare two interests, first, as chairman of the All-Party Parliamentary Group on Speech and Language Difficulties and, secondly, as chairman of the Criminal Justice and Acquired Brain Injury Interest Group. I was concerned to read that paragraph 1(1) of the proposed new schedule to be inserted by Schedule 3 states that “Controlled expenditure: qualifying expenses” includes:
“The production or publication of material which is made available to the public at large or any section of the public (in whatever form and by whatever means)”.
Both at Second Reading and in my consideration Motion, I mentioned the problems experienced by organisations working in this area in the criminal justice system. We shall come back to them when we discuss coalitions.
One of the areas that we have been considering in Bill after Bill has been the problem of those with learning difficulties and learning disabilities who require special arrangements to enable them to understand the legal process in which they may become involved. This requires both written material and the provision of people who can explain things to them, because the police and others may not necessarily be able to do so. I am therefore asking the Minister if what we have here is a cross-counting nonsense because, in Bill after Bill, we have been trying to impose or introduce something to enable people to engage with the criminal justice system in this way. Yet, if you take what is written in this Bill, it would seem that this is now to be impossible.
I fully support Amendment 165B which has the list of those things which ought to be included in the Bill and excluded from the expenses. I am not going to discuss the staff expenses at this stage because I agree with my noble and right reverend friend Lord Harries of Pentregarth and with the noble Baroness, Lady Mallalieu.
I turn briefly to Amendment 161A. I am concerned that the word “research” might be removed. At the moment, we are conducting research into the number of prisoners with acquired brain injuries as we want to find out whether special arrangements need to be made for them. An experiment carried out in Leeds prison has discovered a large number of such prisoners and the people involved say that supporters are needed to help these people back into the community. However, such an initiative would be subject to the election provisions in the Bill. Why? It has nothing to do with elections, so why threaten such a sanction and why make the people concerned in this very important public service unnecessarily alarmed if that is not going to happen?
As regards Amendment 165C, I find it very distressing that the Bill states:
“The Secretary of State may by order make such amendments of Part 1 of this Schedule as he considers appropriate”.
Surely, such a measure ought not to be included in the Bill. It should not be up to the Secretary of State to make such amendments as he considers appropriate when so much work has gone into the Bill.
Baroness Tyler of Enfield (LD)
My Lords, I add my support to Amendment 160J, to which my name is attached. As I was heavily involved in the Care Bill and the Children and Families Bill, I was unable to speak at Second Reading of this Bill, for which I apologise to the House. I should also mention my interests as president of the National Children’s Bureau, vice-president of the charity Relate, and chair of the Making Every Adult Matter coalition of charities. I will speak about charity coalitions on later amendments.
Amendment 160J is intended to clarify exactly what is meant by “committed supporters”. The fear here, which has already been expressed, is that contacting people, charities and other campaigning organisations that bodies consider to be supportive will be classed as regulated activity and therefore come under “controlled expenditure”. I wish to make two main points. First, as my noble friend Lord Tyler said, these days, membership of charities and other campaigning organisations is generally not defined by an annual subscription. It might have much more to do with following the organisation on social media, actively agreeing to receive e-mails or some other way of actively engaging with the organisation concerned. Certainly, my experience of the organisations for which I have worked, and which I continue to support, perhaps in connection with children and families or campaigning for older people, is that you might feel very strongly indeed about a particular issue, perhaps to do with health, a specific disability or housing, and therefore lend your support to it. Indeed, you might be very actively engaged with it from time to time but do not necessarily support every activity and issue that the organisation concerned is involved in. However, you should still count as a very committed supporter of the relevant organisation.
Although there are other amendments in this group, and Amendment 165B clearly also tries to get the right definition of “committed supporters”, I support Amendment 160J as it sets the bar in the right place in terms of having to have some sort of active engagement with an organisation rather than simply being a passive recipient of e-mails, for reasons we have already heard. Amendment 160J would improve the Bill, if it were accepted.
Lord Aberdare (CB)
My Lords, I support the amendments in the name of my noble and right reverend friend Lord Harries of Pentregarth, especially Amendment 165B. I also welcome the amendment in the name of the noble and learned Lord, Lord Morris of Aberavon, which seeks to make specific provision in the Bill for the Welsh language. I want to make only one point. Even the heroic efforts of the civil society commission, which so many of your Lordships have spoken about, and which I fully endorse, could not resolve all the issues raised by the Bill. The commission has made it clear that some of its recommendations are the best that it could come up with in the time available and should apply until the next election, but then should be reviewed in detail. Therefore, my question is really one of process because it seems to me that our views on the Bill could be very different if we are looking at something that will do up until the next election. For example, I believe that in the longer term staff costs will need to be incorporated in some way because they could make a real difference in terms of promoting or procuring electoral success. However, at the same time, I would not want to see an unacceptable burden imposed on the “small platoons” who would find it very difficult to account for those costs.
If we are talking about a process whereby we come up with something that people can live with until the next election, and the Government will then review it and look at how these things work in practice and examine what the real issues are that we are trying to guard against, I would be much more comfortable about the debate we have had this afternoon, and not need to dot all the “i”s and cross all the “t”s, as my noble friend Lord Ramsbotham indicated.
Lord Morgan (Lab)
My Lords, I did not intend to speak in this debate but I wish to comment briefly in support of the amendment moved by my noble and learned friend Lord Morris of Aberavon, which was supported by the noble Lords, Lord Elystan-Morgan and Lord Wigley. It seems to me that if that amendment is not accepted, the consequence would be both unfair and illogical. It would be unfair because the Welsh language would be regarded as a burden and an additional incubus on an organisation rather than as something that ought to happen naturally, and which was sanctioned by the law in 1967 and 1993. It would also be illogical because it would run counter to what has happened over many decades in civil society in Wales and elsewhere such as local government, the social services and, in my own experience, in higher education. When I was vice-chancellor of the University of Wales, which is now almost defunct, significant procedures were in place for translating papers into Welsh and back into English and facilities for simultaneous translation. These were a natural part of our working processes in the university and, importantly, did not impose an extra charge. They did not take money away, as it were, from education, teaching or research.
This brief debate has shown that constitutional law and legal proceedings have often lagged behind what is happening in civil society or, frankly, have lagged behind common sense. I was struck by that when I listened to the comments of the noble Lord, Lord Elystan-Morgan. He referred to the Act of Union of 1536, which was an almost totalitarian measure intended to extinguish the Welsh language for public purposes. However, it was nullified by other developments in Wales at that time, not in the legal or political spheres but particularly by developments in religion. The most important phenomenon of that century was the translation of the Bible into Welsh by Bishop Morgan, although I am afraid that I cannot claim him as an ancestor. That seems to be a way in which civil society has civilised and nullified the effect of constitutional law, and I hope that it will do so again.
Baroness Lister of Burtersett
My Lords, I declare my interests at this point. They are quite wide-ranging in relation to charities and non-charitable organisations, and they are listed in the legislative scrutiny report of the Joint Committee on Human Rights.
I want to declare my support for the amendments tabled on behalf of the Commission on Civil Society and Democratic Engagement. While I take the point of the noble Lord, Lord Horam, that it is not unusual for this House to take a number of amendments together, I point out that the Electoral Commission emphasised that we have to consider the cumulative impact of a number of different parts of this legislation. This was also a point emphasised by the Joint Committee on Human Rights, so it is not inappropriate for us to consider the way these amendments hang together. I think they do hang together.
I simply want to highlight very briefly a few of the points covered by them. The first is the question of access to information for disabled people, which has already been talked about very powerfully. This is a question of equity. It costs more to provide that information and it is only equitable that that is taken into account.
The second point, which we have not talked about as much, is the question of public meetings. The NCVO in its latest briefing picked this up, referring to the report of the Joint Committee on Human Rights and our concern about the possible impact of this part of the legislation on the human right to freedom of association. That is very important. The NCVO refers to a number of organisations having flagged this up, particularly with regard to disability, welfare and social security reform issues. The concern is about the high cost associated with organising a rally of some form and the subsequent impact this would have on campaigning activity through the rest of a regulated period. I hope the Government might consider looking again at public meetings being covered by the legislation.
The final point is on the question of the definition of “supporters”. I was struck that the commission’s report pointed out that this matter was simply not considered by the House of Commons during its debates. I went to the launch of the commission’s second report, where one of its members spoke very convincingly about the importance of taking account of how membership of organisations has changed and said that the legislation has not caught up with this. The commission’s report states:
“We heard evidence about the need for a definition of supporters which reflects the contemporary way in which members of the public lend their support to organisations and campaigns including by email and social media—not just financial supporters”.
I am not sure which of the competing amendments is right, but it seems to me essential that one of these amendments should be accepted, and that we have a more up-to-date understanding of what it means to support voluntary organisations.
Lord Best (CB)
My Lords, I shall speak to Amendment 163A, another in this rather large group. I declare my interest as a member of the advisory board of the National Council of Voluntary Organisations, the NCVO, which is a key organisation in seeking amendments to the Bill and supplementing the brilliant work of the civil society commission chaired by the noble and right reverend Lord, Lord Harries of Pentregarth. I am grateful to him for his support for this amendment, and to the NCVO for its briefing on this amendment.
This amendment joins so many others in seeking to preserve the freedoms of not-for-profit organisations seeking to influence government and decision-makers. In the case of this amendment the issue is the new list of activities, the costs of which count as qualifying expenses and lead to regulation. The list now includes public rallies or other public meetings where expenses include costs in connection with the attendance of persons at the event, the hire of premises and provision of goods, services and facilities. So this is about all costs associated with freedom of association at rallies and other public meetings. A potential problem here is acknowledged by the Government’s human rights memorandum, which noted that,
“more things (such as for example, costs associated with the organisation of rallies and events) will count towards spending limits and require control. This engages Article 10 and 11”.
The Joint Committee on Human Rights has expressed concern about the possible impact of the broadened list of activities on the freedom of association. The noble Baroness, Lady Lister, has just referred to this. A number of organisations, notably those interested in disability and welfare reform issues, have flagged the concern that the high costs associated with organising a rally of some form would have a major impact on campaigning activity throughout the rest of a regulated period.
Perhaps I could share three examples of organisations and their activities that would be covered by the new rules and lead to disproportionately onerous bureaucracy and burdens, which could effectively prevent those organisations campaigning in ways that they have done in the past.
The first is the case of the Countryside Alliance’s opposition to the hunting ban in 2001 and 2005—an example that is known to a number of your Lordships. In the run-up to the 2001 and 2005 general elections, the alliance mobilised its supporters and the general public against the hunting ban—activities which in total required a pretty high level of expenditure, including demonstrations and rallies against the hunting ban, press conferences to promote the event, transport costs for those attending the events, and producing and distributing leaflets to promote the events. The Countryside Alliance is not linked to any one political party. However, because the issue of hunting can be seen as highly partisan, with the hunting ban more associated with the Labour Party, all the costs incurred in these events would have counted towards the alliance’s expenditure. Had the Political Parties, Elections and Referendums Act 2000 been amended as the Bill proposes at the time the hunting Bill made its way through Parliament, the ability of organisations such as the alliance to oppose the proposed ban and organise marches and rallies would have been severely curtailed.
Secondly, in the run up to the Copenhagen climate change summit in 2009 and the UK general election in 2010, the organisations in the Stop Climate Chaos coalition worked on a range of events, including outdoor rallies; the Wave, a march through London attended by 50,000 supporters; and schools’ conferences held with schools from across England to talk about climate change, with MPs invited to a panel debate. Under the new rules proposed by the Bill, even if lower spending limits are not pursued, it is likely that the various activities carried out by the coalition would have exceeded the maximum amount allowed, forcing the coalition to stop its campaigning.
Thirdly and finally, the Women’s Institute’s Great Food Debate involved a programme of work on food security and was launched at an event in York in December 2012 with a report on food security. The event was free, open to the public and included a panel at which the Environment Secretary, Owen Paterson MP, gave a keynote speech. Members of the WI and members of the public attended the launch and debate, with another in Cardiff the following month. The Great Food Debate is designed to explore the concept of pressure on the food system and provide an opportunity to engage with the public. The National Federation of Women’s Institutes encourages WIs all over the country to replicate its national work by hosting their own local and regional Great Food Debates. All this generated significant media coverage, including local and regional coverage. The Great Food Debate is certainly not supportive of any particular party but the media reporting of the events placed the debates and work programme in a political context, as exemplified by headlines such as the following in the Daily Mail:
“Put cooking back on the national curriculum to tackle obesity timebomb and stop pupils wasting food, urges WI”.
The Daily Telegraph read:
“TV cooks should give us recipes for leftovers to cut waste, says Minister”,
and:
“Teach all children to cook in schools, says Women’s Institute”.
In addition, the Environment Secretary used the platform as an opportunity to call for further consideration by the public of GM and agritechnology. If the Bill is passed and these events were held in the 12 months before one of the elections covered by it, the related costs would take the National Federation of Women’s Institutes over the registration threshold, with all the consequences that that would imply. All local WIs and federations would have to register as third-party campaigners with the Electoral Commission because the NFWI would have spent more than the registration threshold in creating the materials to help members hold their own debates. Federations and WIs in this scenario would then have to take on all the regulatory burdens associated with that.
It is good to hear that the Government will be bringing forward changes that will increase substantially the cash thresholds for registration. Amendment 163A helps that process by taking out one element that could disproportionately affect the total spending by voluntary bodies in this grey area of non-partisan campaigning. It diminishes the unintended chilling effect of the Bill, which otherwise seems likely directly to deter voluntary bodies from organising the free association of people at rallies and public events, and indirectly to reduce engagement of the sector in important campaigning activity.
Baroness Royall of Blaisdon
My Lords, I am grateful to noble Lords for a giving such a thorough explanation of why the Government need to take away Schedule 3 and think again. The many increases in activities that count towards qualifying expenses in this part of the Bill account for a great deal of its unworkability, and for the concerns and fears that have been raised in civil society. My noble friend Lady Lister rightly spoke of the cumulative effect of the various measures in the Bill, but I suggest that this schedule has a profound effect on people’s views of it.
The Minister, the noble and learned Lord, Lord Wallace, said that volunteers would not be covered in the Bill, but that is not enough. It is clear that the main problem with Schedule 3 is the inclusion of staff costs as a qualifying expense. Political parties are not subject to this requirement and it is therefore unclear why the Government believe that charities and NGOs should be. It is worth looking at the original document from the Electoral Commission that the Government claim as the inspiration for some of the Bill. It said, as regards counting the staff time of political parties:
“Bringing directly employed staff costs within the scope of the spending controls would have significant implications, which would need to be considered before the change could be implemented. It would impose new administrative burdens on parties, and the detail of what spending is covered would need to be carefully considered and defined”.
The report continued:
“It could take up a significant part of the larger parties’ campaign spending under the current spending limits and the spending limits would therefore need to be re-visited”.
If this is the case for political parties, the same would apply to charities and NGOs. Indeed, they have presented a great deal of evidence about the burden that would be placed on them. Amnesty International has pointed out that during an election period it produces manifestos on human rights, organises hustings, undertakes pledge-card activity and co-ordinates media activities. These activities could mean that the new spending thresholds would be met, and therefore staff time would have to meet new reporting requirements that would seriously draw on resources—a reminder that with this Bill it is often the new provisions taken together that would work to stifle democratic expression. That is what the larger organisations fear. The smaller ones, however, would struggle to an even greater extent to meet the onerous reporting requirements.
The NCVO has presented a case study that amply demonstrates this. If, for instance, a small disability charity campaigning on welfare reform employs an additional member of staff to run local campaigns in the run-up to the election, the charity must account for the person’s time and monitor which activities undertaken by local groups could amount to controlled expenditure. Even if a simple approach were taken by looking at a yearly salary, this could immediately bring the organisation over the threshold—for example, one public affairs officer on £30,000 per year. Surely the Government, who talk so often and so loudly about reducing red tape, are not prepared to place such a regulatory burden on charities. The noble and right reverend Lord, Lord Harries, cited the example of the RSPB, which contends that the impact assessment prepared for Part 2 understates the extent to which it will mean that charities and NGOs will have to spend money on administration rather than on their core work. The RSPB states:
“This would siphon money away from conservation work and amount to an unnecessarily onerous regulatory burden: more than the £0–800 per organisation for implementation estimated in the Impact Assessment”.
Lord Gardiner of Kimble (Con)
My Lords, I thank your Lordships for an extremely wide-ranging debate on qualified expenses in controlled expenditure. I will endeavour to go through all the points that were made. If there are any that I have not picked up on immediately, I will reflect on all of them—as will my noble and learned friend—because clearly there are a number of issues in this group that the Government will certainly want to bring back at Report.
Schedule 3 inserts a new Schedule 8A into the PPERA Act 2000. That new schedule expands the activities on which expenditure by a recognised third party will be controlled expenditure. Under existing legislation, only expenditure on election material made available to the public is controlled expenditure. This is retained as an activity that counts towards controlled expenditure within this Bill. However, the new schedule extends the range of activities that are qualifying expenses for the purposes of controlled expenditure. These include: market research involving the public or canvassing; public rallies and other public events, excluding annual conferences; press conferences or other organised media events; and transport.
Again—I emphasise this—the essential qualification is that these would count as controlled expenditure only if the expenditure could reasonably be regarded as being intended to promote or procure the electoral success of a party or candidate. Where the activities were unconnected—for some other charitable, campaigning or commercial purpose of an organisation, for example—they would not be included.
The list of activities in the new schedule closely aligns the activities of third parties that incur controlled expenditure with those of political parties. This was recommended by the Electoral Commission in its June 2013 report, A regulatory review of the UK’s party and election finance laws: Recommendations for change.
I now turn to Amendment 159G in the name of the noble and learned Lord, Lord Morris of Aberavon. This would amend Clause 26 so that costs incurred by third parties translating materials from English to Welsh or Welsh to English would be excluded. I am very conscious of the Welsh Language Act 1993, and, as I was reflecting on the debate today, I considered precisely what my late friend Lord Roberts of Conwy would have thought about these matters. He was such a well respected figure in this House on all sides, and I am pretty confident as to what he would be telling me now.
It is the case, interestingly, that under that Act—which places an obligation on public bodies—political parties, candidates and third parties do not fall under the definition of a public body. Therefore, there is no legal obligation to translate election materials from English to Welsh or Welsh to English. However, having said that, the Government believe that the Welsh Language Act 1993 includes an obligation to treat Welsh and English on an equal basis and that there is a strong and compelling case for translation costs to be excluded. The noble Lords, Lord Elystan-Morgan, Lord Wigley and Lord Morgan, made that very clear as well, with references to 1,500 years of language and the Act of Union, so the Government will consider how this exclusion would operate and will want to return to this important issue on Report. I hope that that will be helpful to the noble and learned Lord.
I also want to raise the issue of committed supporters. Amendment 160J, in the name of my noble friend Lord Tyler, amends Schedule 3 so that costs associated with sending material to committed supporters would be excluded from the calculation of cost-controlled expenditure. The costs of sending material to members or certain supporters are already excluded, as PPERA and the Bill make clear. The material or activity must be available or open to the public, which for these purposes would not include those members or supporters. As the existing Electoral Commission guidance makes clear, the exact nature of a committed supporter will vary between organisations, but could include regular donors by direct debit, people with an annual subscription or people who are actively involved in a third party.
However, this amendment goes very much further than that: it defines committed supporters as those who have made a donation to the recognised third party, those who have made a direct communication to the recognised third party, or those who have consented to receiving communications from it in the past 12 months. In the Government’s view, this would greatly, and unacceptably, widen the exclusion. At present, the Electoral Commission does not consider people to be committed supporters if they have simply signed up to a social networking site or tools, or to appear on mailing lists that may have been compiled for general commercial, campaigning or other purposes.
The Government believe that the Electoral Commission guidance is the correct approach to outlining a committed supporter. This was also the view the other place took when, in reverting to the existing definition of controlled expenditure, it removed the specific definition of committed supporter from the Bill as introduced. Of course, the Government also acknowledge that in discussion with third parties, from community groups to charities, the need for clear guidance is of vital importance. The Electoral Commission is aware of the important role its guidance plays and is committed to providing such guidance in good time for campaigners.
I now turn to Amendment 160H, tabled by the noble Baroness, Lady Hollins. She said it was a probing amendment, but it would remove election materials from the list of activities for which third parties would incur controlled expenditure. As I am sure noble Lords are aware, the PPERA Act 2000 stems from a report from the Committee on Standards in Public Life. Both that report and Parliament, through the passing of the 2000 Act, made clear that it was reasonable and sensible for third parties who sought to, or could reasonably be regarded as intending to, promote or procure the electoral success of a party or candidate should be subject to regulation. Under the Act, recognised third parties incur controlled expenditure only on election material that is made available to the public and that seeks to promote or procure electoral success. Election material covers items such as leaflets, unsolicited mail to electors, and manifestos. It does not include factual policy documents aimed at policymakers.
As I have three godchildren studying medicine, I am very conscious that the BMA plays a very important part not only in public life but in furnishing the debate on what we all seek to do, which is improve the nation’s health. The noble Baroness, Lady Hollins, will know very much better than I that the BMA publishes factual, evidence-based reports on a full range of issues covering ethical, scientific and public health matters and health service reform. Examples of such documents include publications on child health and well-being, drugs of dependence, transport and health, and a vision for general practice. These publications are factual and, as the noble Baroness said, geared towards policymakers. They are not aimed at the electorate with a view to procure or promote the electoral success of a party or a candidate and do not fall under the regulatory regime set out in the Bill or indeed current legislation.
Lord Gardiner of Kimble
To answer the noble Lord, Lord Rooker, this is a technique used widely in America. Although it is not prevalent here, if we leave an unregulated space for it we run the risk that we will see it here. I do not think that any of your Lordships would want something like this to take hold as it has in America. By removing market research from the list of activities which incur controlled expenditure, we believe that we open up a potential gap. Therefore, we have these concerns.
Amendment 162, which deals with media events, would amend Schedule 3 so that only press conferences organised by a recognised third party would count as controlled expenditure. Organised media events are included alongside press conferences to capture activities with the media which could be seen as promoting or procuring the electoral success of a party or candidate, but which is wider than just press conferences. We recognise that the normal meaning of “press conferences” is likely to catch most organised media events, but we do not want to leave reasons for doubt as to what may or may not be covered by that specific term. That would create unnecessary ambiguity.
The Government have therefore worked closely with the Electoral Commission and interested parties to ensure that the correct balance is struck in terms of the media activities we are seeking to bring into the regime. We do not want, nor does the Bill provide for, ad hoc dealings with the media to be regarded as controlled expenditure. However, where a third party organises a press conference or other media event which could reasonably be regarded as promoting or procuring the electoral success of a candidate or party, that is activity that should be regarded as controlled expenditure and accounted for by means of transparency accordingly. By removing other media events from the list of activities that count as controlled expenditure, we open up a potential ambiguity and a potential gap in the regulatory regime.
Turning to the amendments dealing with transport, Amendment 163 would amend Schedule 3 so that controlled expenditure would not be incurred in respect of transporting people to a place or places with a view to obtaining publicity. The Government acknowledge the particular issues that this may raise for campaigners or for those working with people with disabilities, and that costs associated with the transport of people with a disability may need to be excluded from controlled expenditure. The Government wish to consider this issue carefully and will revisit this subject on Report.
A number of amendments deal with public rallies and conferences. They would extend the exclusion of conferences to all conferences, not just those held annually, and confirm that costs associated with persons attending a public rally or other public event would not be included as controlled expenditure. The amendments would remove public rallies from the list of activities.
This is so important so I repeat that only public rallies or public events that promote or procure the electoral success of a party or candidates would count as controlled expenditure. The Government listened to the concerns of charities and trade unions and brought forward an amendment in the other place to exclude annual conferences. That is the same exclusion applicable to political parties.
I wanted to say to the noble Baroness, Lady Hollins, that I am assured that all annual conferences of the BMA would be excluded, as would those of any other organisation that had more than one annual conference. Additionally, if a recognised third party were to hire a conference centre and invite only its members or committed supporters, that would not count as controlled expenditure.
However, if a third party were to hold a rally or meeting in a public park or hold a protest in Whitehall seeking to promote or procure the electoral success of a party or candidates, the Government believe that this activity should count as controlled expenditure. I emphasise that the Bill does not prevent such activities taking place, just that such activity is properly accounted for.
I want to refer to the Countryside Alliance, as I spent 15 years of my existence supporting that excellent organisation. I was on the barricades many times with the noble Baroness, Lady Mallalieu, and I think that we had right on our side. But we were punctilious about not promoting or procuring the electoral advantage of a party or candidate. I am conscious that the noble Baroness sits on the opposite Bench from me; in fact the person who chairs the organisation sits in the other place as a Labour Member of Parliament. We were punctilious about these matters.
The noble Lord, Lord Best, spoke about Great Food Debate events. I simply cannot see how they would promote the electoral success of parties or candidates. In other words, I do not see that a reasonable person would suggest that a Great Food Debate was about promoting parties or candidates. They are about engaging in the political process; certainly not about promoting electoral success.
The Government are keen to strike the correct balance because we want to ensure that where there is promotion and procurement of electoral success, there is transparency, it is understood and is open to the public. However, we are very conscious that we need to preserve the freedom to speak out on issues that we expect and want civil society in this country to enjoy. It is part of the essence of our democracy that civil society should not feel that this is a Bill which presents them with these difficulties.
The Government acknowledge, for instance, that there is a case for excluding the costs associated with security and safety around a public rally. A number of noble Lords have mentioned Northern Ireland in this respect, and it comes very much as part of the recommendations made by the Commission on Civil Society and Democratic Engagement. The noble and right reverend Lord, Lord Harries of Pentregarth, raised Northern Ireland in particular, so the Government will consider this issue carefully and return to the matter on Report.
Further amendments have been tabled on staff, translation, accessibility, and security and safety costs. My noble friend Lord Tyler, speaking to his Amendment 165A, talked about whether the costs associated with staff directly employed by the third party would be excluded from the calculation of costs for controlled expenditure on transport, press conferences, organised media events, and public rallies and events. Staff costs would be included for electoral materials, canvassing and market research.
A further amendment from the noble and right reverend Lord, Lord Harries, concerns the costs associated with staffing for the provision of materials in translation or in an accessible form for those with physical or learning disabilities, safety and security measures, and communications with third parties, with committed supporters being excluded. The PPERA Act 2000 has always required third parties to account for staff costs, a point made specifically by my noble friend Lord Tyler. The Bill, while extending the range of activities that may incur controlled expenditure, retains the need for staff costs to be excluded. I know that concern has been expressed by third parties regarding staff costs and by your Lordships today: first, that third parties have to account for these costs while political parties do not; and, secondly, to the difficulties for third parties in calculating staff time. On the issue of third parties having to account for these costs while political parties do not, noble Lords will be aware that when Parliament passed the PPERA Act, it was felt to be transparent and proportionate for a third party to account for staff time. This was on the basis that a third party undertakes activities rather than political campaigning where the third party enters into political campaigning to procure the success of a candidate or party. There was a feeling then that spending on these purposes should be transparent.
All of that said, the Government acknowledge that there are genuine concerns regarding the issue of the calculation of staff costs. It is important that a balance is struck between transparency and proportionate reporting requirements. In terms of excluding the costs associated with translating materials, making materials more accessible to those with physical or learning difficulties—the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Hollins, specifically raised this issue, and rightly so—the Commission on Civil Society and Democratic Engagement covered these points in an extremely valid way. The Government support ensuring that materials are accessible to all electors and they have received representations related to translating materials. We have heard from campaigners, and some very important points have been made about Northern Ireland, particularly by the noble Baroness, Lady Mallalieu. I want to confirm again that the Government will be considering these issues carefully in the light of today’s debate and we will return to them on Report.
The Government also acknowledge that in discussion with third parties from community groups to charities, there is a need for clear guidance; that is of vital importance. The Electoral Commission is aware of the important role its guidance plays and it is committed to providing such guidance in good time for campaigners.
I turn now to the order-making powers and a number of amendments which have been tabled in this regard. The Electoral Commission’s regulatory review, published in June 2013, made it clear that the PPERA Act does not provide the flexibility to update the rules on non-party campaigning through secondary legislation. This is in contrast with the list of items defined as controlled expenditure for political parties, which can be amended through secondary legislation. The Government support the recommendation of the Electoral Commission, and provision has been provided in the Bill. The order-making power, as with other similar powers in PPERA, will apply either after consultation with the Electoral Commission or to give effect to a recommendation of the commission. Parliament will be able to scrutinise and debate any order that is put forward in the usual way. The order-making power is subject to the affirmative resolution procedure. Such a power allows the regulatory framework to respond to changes in campaign activities and methods of campaigning. This flexibility would be greatly reduced and the regulatory regime could be undermined if such changes could be made only through primary legislation.
Lord Rooker
I would like to ask the Minister a question. When this was raised by a colleague—I do not know who it was—it related to Schedule 3 which, on page 58 in paragraph 3 of new Schedule 8A, sets out the power to amend Part 1. Is there a connection between sub-paragraphs (1) and (2)? Sub-paragraph (1) reads as:
“The Secretary of State may by order make such amendments of Part 1 of this Schedule as he considers appropriate”.
That stands on its own, but sub-paragraph (2) states that he,
“may make such an order”,
after he has received a recommendation from the commission. Surely it should read that he may make an order “only” after he has a recommendation from the commission. Is sub-paragraph (1) dependent on sub-paragraph (2)? The Minister may not answer me now, but I hope that he will do so at some point because it looks like a real Henry VIII power and it is not explained properly. There is no connection between sub-paragraphs (1) and (2), but I think there should be.
Lord Gardiner of Kimble
I suspect that I may want to avail myself of the noble Lord’s very kind suggestion. In order to get the intricacies of this right, I probably need to look at it. It is important that we get this right throughout the process.
Perhaps I should say to the noble Lord, Lord Aberdare, that I think that my noble and learned friend has made it clear that the Government fully intend there to be a review as part of the amendments that will come through on Report. There will be a review after the general election in 2015.
This group of amendments reflects the fact that the Government want to get this absolutely right. Points have been made on all sides of the Committee which the Government will return to on Report. Given the hour, I hope that noble Lords will forgive me that if there are any outstanding points I find in Hansard, I will respond to them.
Baroness Royall of Blaisdon
My Lords, perhaps I may ask for a point of clarification. In responding to the questions about the Countryside Alliance and the hunting Bill, I think the noble Lord talked about being very careful not to promote the electoral prospects of a party. However, Clause 26 talks about “prejudicing” the electoral prospects of other parties or candidates. That relates to the Countryside Alliance and the ban on hunting, but I would also cite the example of the demonstrations held against the Iraq war. They could have been seen to be prejudicial to the electoral prospects of a certain party, in that case my own. I would be grateful if the noble Lord could clarify that either this evening or on a future occasion, because it is a terribly important point.
Lord Gardiner of Kimble
I will want to reflect precisely on that but will just reaffirm that the Countryside Alliance was punctilious because it was an apolitical organisation. The person who chairs it is the Member of Parliament for Vauxhall, and I very much doubt that there was any suggestion at all that she was in any way going to be subject, shall we say, to an attack for an anti-Labour stance. I will reflect on the two points that the noble Baroness has made.
In conclusion, I will respond to any outstanding points, but at this juncture, I wonder whether the noble and learned Lord might consider—
Lord Harries of Pentregarth
Before the Minister sits down I express my appreciation of the fact that he has obviously given very detailed attention to a lot of very specific points and has indicated he will be responsive to them. I would just urge him on one thing. A particular concern for charities and campaigners, which he perhaps did not emphasise much, was this overall question of staff costs. They believe that it either is unworkable or would impose a huge regulatory burden. Will he take seriously the recommendation of the Electoral Commission that, for the 2015 election at any rate, they are excluded altogether?
Lord Gardiner of Kimble
I will want to reflect on that particular point. I am not in a position to say how the staff costs issue will be dealt with but I reassure the noble and right reverend Lord that it is part of the considerations. Perhaps I might ask the noble and learned Lord again whether he might feel in a position to withdraw his amendment.
Lord Morris of Aberavon
My Lords, I welcome the Minister’s very careful reply and thank him for it. I will withdraw my amendment, but take the opportunity, since Wyn Roberts was mentioned, to say that he was a great and distinguished Member of this House and a friend to many noble Lords, in my case long before he became a Member of Parliament. His long tenure in the Welsh Office is reflected in part—and only in part—by the 1993 Act, to which I have referred and which will always be his memorial in Wales. However, my case of course goes further back than that, to the 1967 Act on the Welsh language, introduced by Cledwyn Hughes. Furthermore, even the 1942 Act, referred to by my noble friend Lord Elystan-Morgan, dealt specifically with the issue of costs in the courts.
The Minister has told us that there is a strong and compelling case for costs to be considered and that the Government will want to return to that point. I listened to that and am grateful for it. I am surprised that the Welsh language issue was not taken into account in the preparation for this Bill. That perhaps shows that the Bill, as we go on to debate various amendments in Committee, may become more and more unworkable. However, on that basis, I beg leave to withdraw my amendment and thank the Minister for his careful consideration.