Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
(10 years, 10 months ago)
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Lord Phillips of Sudbury
“( ) In subsection (8)(a) after “body” insert “(except a body which is a charity)”.”
Lord Phillips of Sudbury (LD)
My Lords, Amendment 160 is very short and innocuous, but it is of significance in terms of its impact on the Bill in that it would remove charities from the scope of the Bill and the 2000 Act. Like everybody else, I must declare interests, which are largely to be found in the register, but I should add that I have been for 40 years a charity lawyer—if that does not sound a contradiction in terms—and have great sympathy with all those trying to get their head around the relationship here between charity law and electoral law because it is far from simple.
Thanks to the work of the Library staff, I got an insight into the debates when the 2000 Act was legislated. It is fair to say that charities got short shrift. In fact, during the passage of the 2000 Act, the awareness in the Chamber was pretty extraordinary and at no point did a clear statement on the impact on charities find its way into print. I am sure your Lordships will also have noticed that the vast majority of charities are as amazed as anyone that they have ever been part of the 2000 Act. Most of them went through the previous election in complete ignorance of that fact.
I fear that the misunderstandings that attend this Bill are not inconsiderable. I am afraid that that misunderstanding finds its way even into the Harries report, if I can so call it. I, like everybody else, greatly admire the energy and astuteness that has been put into this report and I agree with the vast bulk of it. I happen not to agree with recommendation 11, which is that charities should not be exempt from regulation. To make my point and because it is germane: recommendation 11 is preceded by three statements. The first—in favour of my amendment, so to speak—is that the commission heard evidence from charities of the “disproportionate regulatory burden” on them registering as third parties. That burden is at the heart of my wish to see charities removed from this Bill and the 2000 Act.
There are two reasons given for the recommendation about not exempting charities. Incidentally, it is fair to say that the commission itself was made up of representatives of the charities sector and the non-charity NGO sector. The first reason is that,
“the regulatory system should not be structured such that the status of being registered as a charity could be a mechanism for avoidance”.
That is a little gnomic, perhaps, but were we to agree to take charities out of the Act and this Bill, the authors of the Harries commission report decided that this would represent a mechanism for avoidance. I beg to differ. Charity law and electoral law are in all essentials the same. Being bound by charity law rather than electoral law is not a soft touch. Indeed, some charities have made the point that they are afraid of not being part of the Bill—and therefore under the aegis of the Electoral Commission—because they fear that if left to the devices of the Charity Commission alone things might get rather more brutal than they already are.
The second reason given for that recommendation is that,
“campaigning with non-charities is so central to many charities’ activities”.
That is as if to say that if charities were not part of the Bill, they would not be able as they currently are to campaign with non-charities. Again, that is completely misconceived. The position of charities vis-à-vis joint campaigning—coalition campaigning, if you want to call it that—will not be affected significantly; in fact, I could not put my finger on any single difference between being outside and inside the Bill. I repeat: charity law on its own is very severe and, as I shall explain, very similar to electoral law on this point.
Lord Hardie (CB)
My Lords, I seek clarification from the noble Lord, who is recognised as an expert in the field of charitable law. One concern that has been expressed to me is that, if charities are exempt from these provisions, there may be a means for others to use charities to avoid the measures. Could the noble Lord address that concern, which others may have? If people could be reassured on that matter, we would be with the noble Lord.
Lord Phillips of Sudbury
I am grateful to the noble and learned Lord, Lord Hardie, for raising that issue. It is one of two issues used by the Harries commission to justify its recommendation to keep charities in the net. But it simply does not stack up in any way. Would the noble and learned Lord give an example of where he thinks the problem that he has enunciated would be found?
Lord Hardie
Simply, a concern has been expressed. As the noble Lord has observed, it is referred to in the report. The noble Lord may wish to have time to reflect on the matter and come back. To my mind, if that concern could be answered, I would be reassured.
Lord Phillips of Sudbury
I think that the concern may relate to a misnomer, which is that a non-charitable NGO that wants to escape the limitations of the Bill could simply form a charity which, if charities are taken out of the Bill, would be able to do all sorts of things that it could not do as a non-charity within the Bill. There is a very simple answer to that. A charity may be the brainchild of, and have come into existence through the efforts of, a non-charitable NGO—and there are a number of non-charitable NGOs, such as Amnesty International, which have brought into being a charitable arm that does things that can properly be done by a charity and which is therefore more tax efficient to have done through a charity, because of the tax provisions attaching to charities. A number of non-charitable NGOs have a related charity—perhaps even the Countryside Commission has. Many of them do it. But the misunderstanding comes in this element. Some people think that because Amnesty and the Countryside Commission took the initiative in creating a charity, they can control it and tell the trustees to do their bidding, what to do and when to do it. But they cannot. It is a fierce rule of charity trusteeship that the trustees of any charity do not and cannot take their orders from any outside body, even one that is in that sort of relationship.
To take another example, where I, as an individual, set up a charity with funds that I provide, unless there is some express power which I retain to require the trustees to make charitable gifts as I indicate, I cannot tell them what to do. The trustees must act independently. It is a fierce and fundamental provision of charity law, precisely to protect it from prostitution by the means that I think was behind the noble and learned Lord’s question.
Baroness Mallalieu (Lab)
My Lords, I take issue with one or two of the matters that the noble Lord, Lord Phillips, has just raised. The commission came to the view that there should be no exemption for charities and that was based squarely on the evidence that we heard. As everyone else is doing so, perhaps I should make a full declaration of my involvement with various campaigning organisations. I am president of the Countryside Alliance and president of the Horse Trust; one is a charity and one is not. I am a member of the National Trust, the RSPCA and the Humane Slaughter Association and I am a supporter—whatever that may mean at the end of this Bill’s progress—of the Stop HS2 campaign. There may be others, but I cannot, at the moment, remember them.
Lord Phillips of Sudbury
I am so sorry to interrupt the noble Baroness so early in her speech, but it is directly germane to her first point. I think she said that the Charity Commission came to the conclusion that charities should not be exempt.
Baroness Mallalieu
I was not referring to the Charity Commission; I was referring to commission of the noble and right reverend Lord, Lord Harries. I am afraid this had led to some confusion. I noticed someone else fell into the same error. If I did, I apologise. Except for those who have put their names to the amendment on the Marshalled List—and no doubt there will be others who will speak—I am not aware of anyone among those to whom we have already spoken, who shares the view of the noble Lord, Lord Phillips. Not one of the charities which came and gave evidence before us asked for there to be an exemption. Nor, as far as I am aware, does the Electoral Commission suggest that it is a good idea. I am not certain about the view of the Charity Commission, but my understanding is that it does not seek it either. As I understand it, this is because it is generally felt that transparency in the way people campaign during elections should run right across the board, for charitable and non-charitable campaigners. The spending limits, which are a key difference, should be the same across the board. No charity asked to be exempt, but we did hear evidence from some which felt that, if they were exempted, some charities would bring others into disrepute, and that it was a possible route for avoidance.
The argument of the noble Lord, Lord Phillips, is predicated, I think, on a belief that the guidance given by the Charity Commission at present works well—and he knows a great deal more about charity law than I do. That was not entirely my understanding of the evidence that we heard, and there has been concern that it has not always been rigorously enforced in this area. It is, perhaps, not surprising, given the number of registered charities. I think there are something like 130,000; he will know the figure better than I do. Indeed, there have been a number of public complaints about charities and how they have campaigned recently. It was for that reason particularly that I drew attention to my involvement with the Countryside Alliance.
It seems to me that there must be equality across the board, not only with obvious transparency, but with the way in which people are permitted to campaign. If the situation were—as the noble Lord, Lord Phillips, would wish it—that non-charities continued to be regulated under the Bill as amended and charities were removed, there could be two organisations campaigning on precisely the same issue, but bound in different ways by different forms of regulation. There could be an argument during an election period, for example on hunting, which has already raised its head a number of times in this debate. This would have the Countryside Alliance as a non-charity, restricted in a variety of ways, required probably to register as a result of whatever the new limits might be, to observe strict spending limits, and with no regulatory burden. Whereas the League Against Cruel Sports, which is a charity, would have no spending limits and would not have to put in the sort of rather onerous reports that are required otherwise. This is a cross-party issue which is seen by some as being politicised. There may well be complaints about it.
My noble friend Lord Gardiner—I call him my noble friend even though he sits opposite because he is from the “barricades” days—has tried to reassure us that the Countryside Alliance would not be caught by this measure. However, I am not so sure. We wait for that matter to be tested or, I hope, clarified as the Bill progresses. The noble Lord, Lord Phillips, says that it is wrong for one body to be doubly regulated, but he is overlooking the fact that charities are in a privileged position in many ways. They have a great many advantages and it is right that they should be regulated not just during election periods but all the time so that they do not infringe the rules. As I say, whether that is enforced is a matter of considerable controversy. Surely the Bill is about the transparency of those engaged in campaigning at election times. It is not a Bill about charities—that is something quite separate. There should be a level playing field and the public should be entitled to know what is being spent and by whom, whether the body in question is a charity or not. Therefore, although I have enormous sympathy with what the noble Lord says, and I share his concern that charities are very worried about the Bill, so are NGOs, and for precisely the same reasons.
Lord Phillips of Sudbury
The noble Baroness refers to a level playing field between charities and non-charity NGOs. However, there is no level playing field because non-charity NGOs can politick any way they like until the cows come home, whereas charities cannot.
Baroness Mallalieu
The noble Lord is correct on the face of it but, in reality, when one looks at some of the forms of campaigning that have taken place in recent years, it is very difficult to discern a difference between the two. The two organisations to which I referred earlier are a case in point. If the charity guidance—CC9—and the appendix to which the noble Lord referred were enforced rigorously, and the Charity Commission had the means to do that, perhaps I would take a different view. However, given that the Charity Commission cannot possibly have a handle on 130,000 charities during an election period, it seems to me important that there should be one rule that applies to all.
Baroness Williams of Crosby (LD)
My Lords, my name is also added to this amendment. I should like to say a few words not as a lawyer but as a politician. In my rather long political life, I have fought at least 11 general elections and two by-elections, and have lost some and won some. It is worth commenting as a politician in this very good debate, which has been rather dominated by lawyers, if noble Lords will forgive my saying so.
I think that a very simple message is coming out of this discussion. I thank the Government for permitting a consultation period. I quite agree that it is not as long as it should be, but it is worth recognising that this is a very useful innovation in this House, and one that I think will be helpful to us as we work our way through increasingly complex legislation, given that that is the nature of so much legislation nowadays.
Unfortunately, the Bill is largely concerned with amending the 2000 Act, which means that it is incredibly complicated. It keeps referring back to earlier legislation when it might have been better to make a clean break and have a completely new Bill. That is by the way and we have what we have, but I think it is one of the reasons why two issues have emerged very clearly in this debate—I speak as I see. First, virtually every amendment—amendment after amendment—has sought to exempt various bodies from the controls on the amount of expenditure that is incurred. Virtually every one of the many amendments that we have discussed has sought to eliminate or take out something or other. They have all been negative amendments and have attempted to detract from the Bill’s impact on charities. That is not a desirable way of looking at a Bill. What it adds up to is that this is a Bill which has overwhelmingly caused such concern, worry and anxiety that it cannot stand as it is without huge amendment, or possibly a complete rewriting of Part 2. I favour the second.
The other thing that emerges very clearly from this is that the Ministers—I greatly respect their patience and their attempts to deal with the issues—have turned effectively into a sort of CAB. Everybody who gets up says, “Does this apply to me, or to this, or to the other thing?”. That is not a very happy way of demonstrating how clear and transparent the Bill is. It is a very happy way of demonstrating that it is neither clear nor transparent. This again means that there has to be a major look at how to reconstruct this part of the Bill.
I add one other thing. I say this in some criticism of the commission, which has been so widely praised, quite rightly, in this House. The commission has not taken sufficient cognisance of—I refer back to the brief speech made by my noble friend Lord Greaves—the impact of certain kinds of expenditure on campaigning, not least major expenditure on campaigning, on the whole issue of the cleanliness and transparency of politics itself.
We have blissfully walked past substantial evidence to show that, without some form of serious regulation of charities, but also of NGOs, there is a tendency for politics to become increasingly corrupted by the flow of money. The noble Baroness, Lady Mallalieu, for whose intelligence I have the greatest respect, unwisely referred to the likelihood of some monster coming out of the jungle who would be a billionaire. There are many monsters who are billionaires coming out of the jungle. I know that because I taught the subject of elective politics for 10 years at Harvard.
The United States has effectively been taken over at the federal level by more and more major expenditure. For example, expenditure on congressional elections in real terms has gone up two and a half times since 1998. In the latest election cycle, in 2012, no less than $3.5 billion was spent on electing Congressmen and Senators to their elective seats. To take another example; it costs today, on the latest explanation we have, $1.5 million to elect a Congressman. Congressional districts are of course larger than parliamentary constituencies—let us say three or four times larger. However, when you compare the £12,000, which is still the British limit that can be spent within a constituency once an election has been declared, with $1.5 million, even if you take real values and all the rest of it into account, you are looking at a vast increase in the expenditure on how you can get legislation through Congress. A great deal of it is quite directly and precisely related to politics in its most raw sense, including the money that comes out of the so-called 501(c)4 regulations of the Internal Revenue Service—the tax system—which now allows specifically non-profit third parties to put money into election support and political payments. Let us not forget that the legislation picks out non-profit, picks out non-party and picks out bodies with claims that they are pushing a charitable end, or in some cases a public service end. The outcome is quite simply that this particular element in public expenditure in the United States has risen from $9 million two years ago in 2010 to $457 million in 2012. That is an increase of the order of something like 45 times. Why? The regulations that applied to restriction on public expenditure of this kind by non-profit organisations were effectively allowed to lapse with the result of the so-called Citizens United Supreme Court decision of 2010, whereby corporations and unions were both allowed to come into that structure and give whatever they liked with no limit for political campaigns.
What I see in the United States at the federal level is effectively the breakdown of democracy. It is not surprising that more than half of Senators are millionaires or richer because, effectively, the ordinary man and woman have been driven out of politics at a federal level and it is too expensive for them to stand because the money that they have to raise to stand any chance of getting elected is now so extreme. I will not go on but the figures are terrifying. The estimated spending for the next presidential election in 2016 is around $6 billion at the federal level only. What one is seeing is a great democracy gradually turning into a plutocracy, and that is extremely dangerous.
Lord Hodgson of Astley Abbotts (Con)
My Lords, the noble Baroness has given us a sobering picture of the future of US political funding. Before that, we heard from my noble friend Lord Phillips, who, as ever, is a passionate advocate and has a lifetime of experience in charity law. He and I have had many debates on this issue. One therefore has to listen with care to his explanation and how he places his case, particularly when it is supported by some experienced and heavyweight voices from the Liberal Democrat Benches.
However, I hope that he will forgive me if I say that I am not convinced—at least, not yet convinced—that charities should be exempted from the Bill. I accept the seductive simplicity of his argument, but I think that it is based on an ideal world that I fear no longer exists, if it ever did. In part, the noble Baroness, Lady Mallalieu, put her finger on it when she said that charities have a special status in the eyes of the public. They get it not just because of tax but because the charity number is seen to be something that carries with it a stamp of quality, and therefore charities have something that is not granted to people who do not go through the Charity Commission hoop.
I see two major challenges to what the noble Lord proposed. One is the role of the Charity Commission itself, first of all at an operational level. We have said that there are 160,000 registered charities and there are probably another 160,000 unregistered charities: that is a third of a million charities. The noble Lord made reference to this in his opening remarks. The commission therefore faces a huge operational challenge just to deal with basic charity law, and to hold charities to account in the most basic way. When he says that the Charity Commission has very rarely asked trustees to put their hands in their pockets, I accept that. Is that because nothing is going wrong or because the commission does not know what is going wrong? That is one of the issues we have to address; so there is an operational problem.
Then there is a strategic challenge to the commission. The commission is an organisation that is under a huge strain. Some noble Lords will have seen the National Audit Office’s report, which had some disobliging things to say about the way the Charity Commission operated. It faces considerable problems in respect of the public benefit test, the aftermath of the independent schools test and the Plymouth Brethren case, which is now before it. It has had problems with links to Her Majesty’s Revenue and Customs, the Cup Trust and other tax-avoidance measures. It has also had a 40% cut in its budget. I ask my noble friend whether it is a practical proposition to ask the commission to take on another huge area and start to drill down on 335,000 charities to find out whether they are complying in a way that is, as the noble Baroness said, fair across the piece.
The noble Lord might say to me, “Of course it should have additional resources”. If it were an ideal world, that might be possible, but it is hard to argue that the Government should devote additional resources to providing the Charity Commission with the ability to enforce electoral law when the Electoral Commission already specialises in it and is up to date with all the arrangements of the way that matters are proceeding—as opposed to the Charity Commission, for which it would be one of about 10 major tasks it would have to carry out. That is my concern about the way the structure would work in real life.
My second concern is really the point made by the noble and learned Lord, Lord Hardie: the nitty-gritty point of the loophole. I fear that it will attract those who wish to push the envelope. The noble Baroness, Lady Williams of Crosby, said that she thought the envelope was being pushed—and I am sure it is. In my review of charities, Members of the other place said to me, “Some charities are really getting into what we are doing as Members of Parliament”. There is a sort of concern that charities are doing things that get very close to the role of a Member of Parliament in representing his or her constituents. This amendment will open the way to the more adventurous and to the outliers who choose to become charities, because it will be seen as a way to minimise the regulatory burden and to evade some of the issues that we have just been discussing as part of this Bill.
It is the outliers who will most likely damage the sector’s reputation. The sector has historically had a very high reputation with the public, but this reputation is not immutable. We think now of the Cup Trust, as I mentioned. That has undoubtedly made members of the public consider charities and their role. We subsequently had a very public row about the payment of chief executives and senior staff of charities, and how that is commensurate with charitable status. I am not making any comment upon it; I am saying that the charitable sector has considerable challenges to answer if it is not to see some leeching away of the enormously strong public reputation it has historically enjoyed.
If we were to accept the noble Lord’s amendment—seductively simple and attractive though it is—we would run the risk of putting a burden on the Charity Commission that it will not be able to fulfil, and giving it tasks that it will find very difficult. The result could be that we will have difficulties, problems and issues with the public that, after the next general elections and elections thereafter, will be seen to rebound on the charity sector. We need to make sure that does not happen, because, as the noble Lord said, it is such a precious jewel in our crown. It provides a way for so many of our fellow citizens to put something back, to create something and to connect with their fellow members of society. It would be a tragedy to lose that. That is why I fear I cannot support the noble Lord’s amendment tonight.
Lord Harries of Pentregarth (CB)
The commission did not support taking charities out, for the reasons put so fluently and eloquently by the noble Baroness, Lady Mallalieu. I will not add to what she said, but I want to respond briefly to points made by the noble Baroness, Lady Williams, and the noble Lord, Lord Phillips.
We are debating constituency limits in a separate set of amendments, so I will respond to that issue then. The noble Baroness has unrivalled experience and knowledge of the American system and the British system, and I do not doubt for a moment what is happening in America. But we have not yet been presented with any real evidence that it is happening in England. The precautionary principle is quite right: we have to beware what might happen. But we also have to make sure that our reaction is not disproportionate.
Baroness Williams of Crosby
There is already some evidence that American Crossroads, which is Karl Rove’s non-profit organisation—non-profit and non-political—has among other things financed young Britons to come to Republican gatherings where they are given instruction in the kinds of things that the Republicans and the Tea Party believe, at those organisations’ expense.
Lord Harries of Pentregarth
I absolutely agree that it is right to take precautionary steps, but I am sure that the noble Baroness would also agree that we must ensure that they are not disproportionate. The main complaint at the moment by charities and other campaigning groups is that this legislation is grossly disproportionate in the way that it bears upon them—I see the noble Baroness nodding her head.
I also have the utmost respect for the noble Lord, Lord Phillips, who is the leading charity lawyer in the country. But I have to agree with the points made by the noble Lord, Lord Hodgson. Perhaps I can approach the argument from another way. I carefully read CC9, which is the Charity Commission guidance. I also read the additional guidance that it provides for election campaigns. It makes it quite clear that charities are allowed to politically campaign. That is absolutely crystal clear. But as the noble Lord made abundantly clear, it is not always easy to draw a distinction between political campaigning in general and political campaigning that might be interpreted as supporting a particular party.
The noble Lord drew his hand across and said that there was a kind of hazy line. Does that not lead to the conclusion that the noble Lord, Lord Hodgson, made: namely, that if charities were taken out, they would have to have their own separate regime, employ extra staff, and keep in day-by-day contact with the Electoral Commission to make sure that their guidance agreed with the guidance of the commission? Would that not be a waste of resources? If charities are in fact in the same position as other groups, would it not be better for them all to be under the same regime?
I absolutely agree that there is a major difference and that charities cannot have political campaigning as their prime purpose. That is absolutely right. If the suggestion of the noble and learned Lord, Lord Hardie, about the definition of political expenses were accepted, of course charities could come out—but as long as they are allowed to politically campaign, that campaigning could be interpreted as supporting a political party or candidate.
Lord Phillips of Sudbury
Does the noble and right reverend Lord not agree that it is one thing politically to campaign—which is what charities can do—but another to do that in a partisan way? They cannot do that. That is a huge and fundamental difference between them and non-charitable NGOs.
Lord Harries of Pentregarth
I could not agree more, but as the noble Lord made clear, the difference between the two is sometimes a bit hazy and judgments have to be made as to when a particular charity has gone over the line.
Baroness Lister of Burtersett (Lab)
My Lords, like the noble Baroness, Lady Williams, I speak as a non-lawyer. Indeed, my background was originally in the charitable sector; I was the director of the Child Poverty Action Group and worked there for eight years, and now I am its honorary president. I also have links with non-charitable NGOs.
The noble Baroness talked about the political and legal aspects of this. While I am sure that the noble Lord, Lord Phillips, has tabled this amendment from the very best of motives, there is a danger of it being seen as the politics of divide and rule. The two things that strike me are, first, that charities themselves are not asking to be exempted. Surely that must count for something. The noble Lord said that charities are worried. Yes, they are worried, but they do not want to be exempt.
Lord Phillips of Sudbury
My Lords, I am most grateful to the noble Baroness and I am sorry to interrupt so often, but I am being challenged. The noble Baroness, Lady Mallalieu, said that the charities she has talked to do not want to be exempted. All I can say is that the overwhelming majority of those I have been speaking to, and indeed know of because perforce I know a vast number of charities, want exemption. Perhaps I can take as examples the Charities Aid Foundation which only has charities as members or the Directory of Social Change which only has charities as members as compared with, say, the NCVO, which has both. The organisations I have mentioned are keen for charities to be exempt for all the reasons I have tried to explain. The impression must not be left tonight that charities somehow want to be kept in this Bill. My experience is quite the reverse.
Baroness Lister of Burtersett
I do not have that evidence and no charity has written to me asking to be exempt, but there may be other noble Lords who can act as the referee in this dispute.
A point which has not been made yet is that the Electoral Commission has said explicitly that it does not support this amendment, and surely that must count for something. The noble Lord, Lord Hodgson, talked about what have been very seductive arguments, but I say to the Minister that I hope he will not listen to the siren voices of his noble friends.
Baroness Pitkeathley (Lab)
My Lords, I am a fan of the noble Lord, Lord Phillips. I have every reason to be grateful to him from when I was running a charity myself, but I cannot support his amendment. I, too, have had words with a great many charities and have been surprised by how many of them are opposed to this amendment and have not taken any comfort from his faith in the Charity Commission doing the excellent job that he appears to think it would do in this regard.
Some of the charities I have spoken to have been opposed to the idea of exemption for personal reasons. For example, the Save Lewisham Hospital Campaign would not have wanted to go through the process of registering as a charity to gain exemption. Those involved were too busy with their campaign. I have spoken to other charities which point out that coalitions are often formed across sectors so that they make up coalitions not only of charities but of social enterprises and, indeed, of commercial organisations. I certainly have had experience of that in my campaigning background. What we have to remember is that the NGO sector, whatever it is, is increasingly diverse. We are constantly coming across different forms of NGO-type organisations. There is a great potential for confusion among the public and supporters. We should focus on the activity being undertaken, not on the type of organisation undertaking it. I understand that some legal opinions have suggested that going for exemption may be a legally unviable option and much too open to challenge. There is also a widely held view that it is unfair to make non-charitable organisations subject to tighter regulation, thus making it more difficult for them to highlight the problems which this legislation is increasingly going to bring about.
We come back to the point that this legislation is being introduced without proper evidence and without proper consultation. As I said at Second Reading, it is very much a sledgehammer Bill to crack what was, at best, a small nut of misbehaviour by some non-charitable lobbying organisations. The noble Lord, Lord Phillips, himself said that it is complex, there is a great deal of bureaucracy and there will be a diversion of philanthropic effort. It puts a disproportionate burden on organisations and is wholly unnecessary. This does not seem to be an argument for exempting charities but for amending the Bill in the way your Lordships are trying to do.
Lord Low of Dalston (CB)
My Lords, I did not speak at Second Reading for the same sort of reasons as the noble Baroness, Lady Tyler, but I will just make three points in support of the amendment. In passing, I have to say that I have the impression that the charity sector does not speak with one voice on this and does not have a monolithic view. Some charities want an exemption while some do not. In those circumstances, I take the view that it is incumbent on one to support what seems the most rational course, which is what I propose to do. I declare up front my interest as a vice-president of the RNIB. I will make my three points quite briefly.
First, as the noble Lord, Lord Phillips, has made clear, charities are already regulated up to the hilt as regards political campaigning and not engaging in it. The noble Lord, Lord Hodgson, has suggested that, because of their special status, which gives them a peculiar responsibility to be beyond reproach, charities should be subject to the regulation which this legislation proposes. However, it seems to me that the validation kitemark, as you might call it, which charity regulation provides is precisely the reason not to load charities with additional regulatory burdens. What would be the point of conferring this special status on charities and then saying that it does not actually count for anything?
Secondly, along with everyone else, I pay my tribute to my noble and right reverend friend Lord Harries and to his Commission on Civil Society and Democratic Engagement, which, as everybody has said, has done such sterling work on the Bill, which will be of great assistance to the House. However, I was not entirely convinced by its argument for not exempting charities. The argument seemed to be that charities should not have an exemption because other people should have one as well—but in that case, it would not be an exemption. The case for charities having an exemption is that they are in a class of their own. As I say, if everybody is to have the exemption, it ceases to be an exemption; if others feel they should have the benefit of charitable exemption, the answer is surely for them to seek to register as a charity. Concerns have apparently also been expressed that an exemption for charities could increase the prospects of a successful challenge to the PPERA rules on freedom of expression grounds, since it will make it more difficult to argue that the restrictions imposed on others by the rules are necessary and proportionate. If that is the case, so be it, and a good thing too. In saying that I am in favour of the charities having exemption, I am in no sense against the others.
The commission chaired by the noble and right reverend Lord, Lord Harries, is concerned about the impact of the Bill on the reputation of and trust in charities and the extra regulatory costs they will face in order to campaign for their charitable objectives, but it does not recommend an exemption. I am afraid that I draw the opposite conclusion. The noble and learned Lord, Lord Hardie, and the noble Baroness, Lady Mallalieu, raised the point that non-charitable campaigners might seek to set up charitable vehicles as a means of avoidance. However, that is surely not a genuine concern because if they set up a charity they would immediately become subject to the controls imposed by charity law. They would not be able to smuggle through, under cover of a charity, things they would not be permitted to do under charity law. There would be no point in setting up a charitable vehicle to get round the Act. Given the strictness of charity law and regulation, it would be completely self-defeating.
Thirdly, the best way I can contribute to this debate is from my experience when I was more active within RNIB than I am now. I was chairman for nine years and in various senior trustee capacities before that, so I have a good deal of experience with a leading campaigning charity. This experience tells me that the desire to impose stricter controls on charities to restrict the scope of party political campaigning is completely misconceived. At election time, we are concerned to promote our views to the parties, not to promote the views of the parties to anyone else. As often as not, we are simply asking the parties about their views, not promoting those views. If I have understood him correctly, the noble and learned Lord, Lord Wallace, said in an earlier debate that this kind of activity would not be caught by the legislation. However, proving that their activities were exempt would tie the charities up in bureaucracy. The noble Lord, Lord Tyler, has shown us this with his graph showing the correlation between bureaucracy and transparency. The noble Lord, Lord Phillips, also made this clear when he described the increased regulatory burden to which charities would become subject as a result of the Bill.
The simplest thing would be to exempt the charities from the legislation.
Lord Tyler
My Lords, I am very glad that I held back and listened to another contribution from the noble Lord, Lord Low of Dalston, who said many of the things that I would like to have been able to say but could not have done with the same level of experience. There are two points which I would like to add or underline.
First, there seems to be a view in the House this evening, expressed by the noble Baroness, Lady Pitkeathley, that it would, somehow or other, be unfair to exempt the charities because the other organisations would then be more carefully controlled than the charities. That is the whole point: the charities are already very, very carefully controlled in what they can and cannot do in the public space before, during and at election time. As the noble Lord, Lord Low, has said, it may be that CC9 and the further additional requirements of the Charity Commission are not totally adequate but they are certainly very much more so than they were previously. They are certainly more adequate than the guidance that was given to the charities at the time of the passage of PPERA. I am very sorry to see that the noble Lord, Lord Bassam, has left his place, because he was the main author, I think he would probably claim, of that Act. Therefore, its inadequacies, which have been drawn to our attention throughout today—and, I have to say, have been drawn to my attention in the large number of meetings I have held—relate very much to the inadequacy of the treatment of charities, which are already so firmly circumscribed in what they can and cannot do.
Lord Hodgson of Astley Abbotts
I am very grateful to the noble Lord. I just wanted to ask him how he thinks matters will develop if, at a future general election, the Electoral Commission determines, on a complaint to it from a non-charity, that a charity has done something that is outside the electoral law but may be inside the charity law. Which will be pre-eminent? How will be that determined? Does the noble Lord, Lord Phillips, think that, whatever happens, charity law will come out on top, and therefore are we going to allow that there will be an unlevel playing field because the Electoral Commission’s views will be seen to be subordinate to those of the Charity Commission?
Lord Tyler
I admit that hypothetical examples of that nature at this time of night rather baffle me. I am not a lawyer either. But I think that the subsequent amendments that the noble Lord is suggesting, which should in any case mean that there is a coming together of the guidance from the two commissions, should be adequate to this task.
I just want to pick up a point the noble Lord made earlier. He has huge knowledge of the charitable world. He has given a lot of time, energy and specialist attention to the charities, but he seemed to suggest earlier that somehow or other the Charity Commission was not up to the job: it was not in a position, not able, not capable and it did not have the resources to police CC9 and the subsequent advice. That is a very serious charge. If it is his view that the Charity Commission simply is not capable of doing this job, then I admit that the case put by my noble friend Lord Phillips of Sudbury may be rather weaker than I anticipated. I do not think the noble Lord was saying that, but perhaps he would like to clarify that point. If he was saying that, I understand that there is a real doubt about whether the commission is up to the task it has set itself. In my experience of charities and of the previous advice that was given to charities, I thought it was well up to the task and there have been comparatively few cases where the rules have been infringed.
Lord Hodgson of Astley Abbotts
Again, I am very grateful to my noble friend. I simply invite him to go to the Printed Paper Office and get a copy of the National Audit Office’s report on the Charity Commission, published two weeks ago. That is its view after six or eight months’ investigation. He can see it all laid out, warts and all—some good, some bad—but the NAO has some pretty disobliging things to say about the position of the Charity Commission.
Lord Tyler
My Lords, it is late at night to have to introduce a new element into the debate, but the natural conclusion is that the Charity Commission should withdraw completely from this role of policing what should and should not happen in terms of public policy and elections. But CC9 is there and the Charity Commission is now developing more advice on this point. Either we trust the commission to do the job or we do not. I fear that what my noble friend Lord Hodgson has just said does not increase my trust.
In those circumstances, we are still faced with a genuine dilemma. As the noble Lord, Lord Low of Dalston, said, as things stand at the moment many charities, large and small, feel that they are going to be subjected to two quite separate sets of regulations in this regard and they feel that is unfair. That seems to be a very critical issue, and I hope that in due course this House will be able to address it.
Baroness Hayter of Kentish Town
My Lords, I apologise to the noble Lord, Lord Low. It was not that he was slow on his feet; I was just a bit too fast on mine.
I return to the work of Beatrice Webb as she battled against the causes and impact of poverty. She was not running a charity, so she would have been caught by the myriad new requirements that this Bill sets out. She could then have set up a charity. I have set up a large number myself. It is not very difficult. Then she could have campaigned in the same way with no restrictions on the amount of money spent, on the market research done, on meetings, on press work or on the number of staff employed. She could even have concentrated her arguments in a number of key constituencies so long as she did not talk about voting this way or that way.
We have to think about whether we want the Stop the War coalition, pro-HS2, anti-HS2, pro-fracking, anti-fracking, pro-runways, anti-runways, pro-free schools, anti-free schools and other hard-working, well motivated groups to feel the need to register as charities so that they can campaign freely—free not just from double-regulation but from any regulation, because they would be caught only by existing electoral and charity law and not by the new restrictions imposed by this Bill.
I can see the advantages of that. Alcohol Concern, which I established 30 years ago, is a charity which campaigns against the current Government’s policies—not against the governing party—because the Government will not bring in minimum unit pricing or reduce drink-drive levels. This is completely within our charitable objectives. We could even campaign as a charity and put all our money in certain constituencies. As long as we do not say that this means voting this way or that way, it would be completely in line with our charitable objectives.
The Federation of Licensed Victuallers Associations, which is not a charity, would be very worried about the effect of lower drink-drive limits on its trade, but it would not be able to campaign against changing the drink-drive limit without being caught by the necessities of the Bill. That is similar to the discussion we heard earlier about hunting and the Countryside Alliance and the League Against Cruel Sports. While both are campaigning on a policy issue, one would be subject to all the regulations and the other would not because it is a charity—as long as it keeps to charity law.
The Electoral Commission has pointed out that exempting charities from the PPERA would mean there would be no restrictions on what they could spend in the run-up to the election, provided that they act within their charitable objectives, but that all organisations would be subject to the new Bill and the tighter restrictions on campaigning. The Electoral Commission thinks this could undermine confidence in PPERA while creating an incentive for campaigners to campaign via charitable channels.
In answer to the noble and learned Lord, Lord Hardie, I can think of a number of organisations that I have been involved with which use the most appropriate vehicle, shall we say, at different times. That is the reason, as we know, that the Electoral Commission does not support exempting charities. Interestingly, we have not heard from the Charity Commission.
The supporters of the amendment say that charities should not need dual regulation. I have received only two letters from charities even vaguely in favour of this amendment—one has already been referred to: the Directory of Social Change—not because they want special treatment but because they are against duplicated regulation. They were not against being covered by the Bill but felt that they should not be regulated by a separate organisation. In other words, regulation could be by the Charity Commission; the argument is not for special treatment but against duplicate registration.
That is one of the arguments put forward in favour of the amendment, but there would be still other organisations covered by it. We heard earlier from a noble Baroness, who is not in her place, who is very involved with the BMA. It is regulated as a trade union, so it would be dual-regulated because it would continue to be regulated by the certification officer and also by the Electoral Commission. If it is simply about having dual regulation, surely we must deal with the plethora of people who would be doubly regulated.
The Directory of Social Change, despite not wanting to have two regulators, supports this amendment and also shares the concerns about the negative effects on broader civic engagement and the right to campaign. If I have read its letter correctly, I think its call would be for other parts of the Bill to be amended. The only other charity that has written specifically on this is the Royal Society for the Protection of Birds, which would support Amendment 160, but only as a fallback, because it is seriously concerned about the implications for wider civil society beyond charities. It supports the NCVO and others who want the Bill amended, as we do.
Charities are not calling for this, although they are undoubtedly calling for change. We will clearly be interested in what the Minister says on this. In the mean time, I shall ask Peers on the Liberal Democrat Benches whose amendment this is why they appear so little concerned with the other groups. The noble Lord, Lord Phillips, said that there is no evidence that charities did anything wrong in the previous election, and there is no evidence of these other groups being a problem. The noble Baroness, Lady Williams, who is not in her place at the moment, made it very clear that she does not like a whole chunk, if not most, of Part 2. If other noble Lords on those Benches really dislike like this Bill and all its bureaucracy so much, would it not be better for them to use their considerable muscle and voting strength in this House to amend the Bill for all civil society groups, rather than leaving just some of them exposed to the nasty bits of red tape, bureaucracy, demoralisation and complications that were mentioned by the noble Lord, Lord Phillips? Their voting strength in this House would be able to get rid of them for all groups. If this part of the Bill is bad for charities, it is bad for similar groups that do not happen to be charities, and we should see them all as one.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, I thank my noble friend Lord Phillips of Sudbury for introducing this debate, which has been very interesting. Different views have been expressed. The noble Lord, Lord Low, said that charities do not speak with one voice on this matter, and that confirms my experience from having engaged with charities, admittedly not as extensively as my noble friend Lord Wallace of Saltaire. I have heard different views expressed about whether there should be an exemption for charities. Therefore, it is important that the arguments that have been put forward on both sides are given proper examination. My noble friend’s amendment would amend Clause 26 so that charities were excluded from the regulatory regime governing controlled expenditure for third parties. At present, under charity law, charities are organisations which must be established for charitable purposes only and which are for the public benefit. An organisation will not be charitable if—as my noble friend pointed out—it engages in partisan political activity.
Campaigning and political activity can be legitimate and valuable activities for charities to undertake. However, they must be undertaken by a charity only in the context of supporting the delivery of its charitable purposes. As we have heard, the Charity Commission produces comprehensive guidance—CC9—for charities on campaigning and political activity. However, the Charity Commission also acknowledges that there may be circumstances in which charities may legitimately operate within the regulatory regime established by PPERA 2000, even if their campaigns remain within the rules on party political activities by charities.
When the Bill was in the other place, the Electoral Commission highlighted a situation in its briefing. If a charity distributes material to the public that highlights the views of candidates from different parties on issues related to the charity’s objectives, this may in some circumstances reasonably be regarded as intended to promote the election of those candidates and, as such, would require compliance with the rules in PPERA. That echoes our earlier debate about when what would not be registrable becomes registrable. In such cases, Parliament decided through the passing of the 2000 Act that such activity should be regulated as it could potentially influence electors during an election. Indeed, Parliament chose then—as indeed we replicate in this Bill after amendment in the other place—to go down the road of an objective test. It may well be that it is not a subjective thing by the charity but seen objectively it could fall within the provisions set out in the Bill.
I find some of the arguments against difficult. The noble Baroness, Lady Pitkeathley—who is now in the Chair, so am I allowed to say this?—in a point picked up by my noble friend Lord Tyler, seemed to suggest that the limits on charities would be much more flexible. They would not be as tight as they would be on non-charity third party participants. Indeed, I think that was reflected in the opening comments made by the noble Baroness, Lady Hayter, when she seemed to suggest all the things that Beatrice Webb could have done if she had registered herself as a charity and that none of these things would have been available had she not been a charity.
As my noble friend Lord Phillips said, charities are not allowed to engage in partisan politics and charity law is pretty strict. Trustees of charities are only too well aware of the limitations. Sometimes I got the impression during the debate that we were comparing a free for all—if you registered as a charity—with the registration and regulation of controlled expenditure that would apply to third parties that are not charities under the provisions of this Bill. I do not think that is a proper comparison. That is why I think there is a genuine dilemma, as my noble friend said.
The Electoral Commission is clear that charities should not be exempt from the PPERA regime. That point was made clear by the noble and right reverend Lord, Lord Harries. The position has been endorsed by the Commission on Civil Society and Democratic Engagement which states in its report that,
“it is the Commission’s view that it is right that charities are not excluded from within this legislation, and we believe the Government’s approach to distinguish by activity rather than by type of organisations is correct”.
The Government have taken the view that the nature of the PPERA test and the constraints of charity law will inevitably mean that the circumstances in which charities are caught by the PPERA rules will be rare.
There have been some important points made that I want to reflect on as I do not think it is as quite clear cut. There are clear views on why Parliament did what it did in 2000, and why that has been endorsed by the Electoral Commission and by the commission chaired by the noble and right reverend Lord, Lord Harries. The Government should be cautious about taking as significant a step as exempting charities from the regulatory regime. We would want to see more evidence and would pray for reassurance that this would not create a loophole. There are issues about—and this is an unfortunate expression that has been used in some discussions I have had—a “sliver” of activity, which could take charities which are abiding by charity law into an area which would nevertheless be regulated under the PPERA regime. I would want to be satisfied that it would not lead to avoidance, although I certainly hear the strong arguments asking whether there is any point in setting up a charitable arm which is going to be restricted by charity law. However, it is clearly an issue. It was raised by the Electoral Commission, the Commission on Civil Society and others, and was queried by the noble and learned Lord, Lord Hardie.
The noble Baroness, Lady Mallalieu, raised a point that was mentioned when I talked to people involved in the charitable sector in Scotland at the end of last week. Although charities could have their activities restricted because of charity law if they engaged in any activities which could otherwise have taken them into PPERA regulation, what we do not have is transparency. Transparency is an important issue, which I would ask my noble friend to reflect upon. I am more than happy to have these discussions.
The points made by my noble friend Lord Hodgson on important operational issues are why I would not rush forward to say that we will accept an exemption. However, there are concerns about double-regulation which have been expressed to me, and many will sympathise with those who have the potential to be regulated by both the Electoral Commission and the Charity Commission.
I thank my noble friend for raising this issue. The position which has been taken up until now, as endorsed by the Electoral Commission, has commended itself to the Government. However, some important challenges to that position have been raised and I would therefore not wish to shut the door on further consideration of it. I would be happy to engage not only with my noble friend in picking up some of these points, but also with others who clearly take a strong view that charities should be in the same position as non-charitable organisations in respect of the application of this part of the Bill.
Finally—I know that my noble friend will make the point in his wind-up if I do not respond to it in advance—he said, and I know from previous conversations, that the Charity Commission should perhaps be given more money and resources. This is not the debate, nor am I the Minister with any responsibility, to commit more funds to do that. I hope that I am not misrepresenting my noble friend Lord Hodgson, who I think was making the point that if more resources were going, there were perhaps greater priorities than undertaking a task on electoral regulation which is already done by the Electoral Commission. That is a point, and one I am sure that my noble friend Lord Phillips will articulate when he comes to wind up. In the mean time, I ask him to withdraw his amendment.
Lord Phillips of Sudbury
My Lords, I thank everybody who has taken part in this debate. It has swayed to and fro in the best traditions and everybody has made useful points. I have not the time to cover all the offerings, and your Lordships would not want me to at 10.23 pm. However, one or two things I must just say.
The first is to take up the point my noble friend made at the end of his speech, concerning the role of the Charity Commission. My noble friend Lord Hodgson spoke very forcibly about the disparity between the theory of charity law and the actuality of oversight. I accept that, and there is no shadow of doubt in my mind but that if my amendment is accepted on Report, it must and can only be on the basis that the Charity Commission will do a more thorough job than it currently does. I fully accept that, but I am hopeful that that is something which would be very much in the Government’s mind, because if we take a third of a million charities out of the regulatory oversight of the Electoral Commission, we can make major savings, part of which can be deployed in beefing up the Charity Commission’s efforts.
Having said that—forgive me if I bang home the point that I have lived in this sector, so to speak, for 40 years—in my experience there is astonishingly little abuse of charity law. There is an astonishingly high level of public trust as well, and there is a deep revulsion in the sector of trying to play games with it, let alone corrupting it. I emphasise, however, that that does not take away from the point I started by making: there needs to be better enforcement.
The noble Baroness, Lady Hayter, gave an example whereby, I think she said, you could have a biased charity that concentrated its efforts in certain constituencies in order to achieve a certain outcome. That would not be allowed under charity law. It is not that daft. It looks at the whole picture and the substance of what a charity does and if a charity pretended not to be engaged in partisan pursuits but actually was—by, for example, putting its effort only into constituencies where the candidate that it wanted to win was holding a view that it was pushing—that would be wrong and illegal. I am not saying that it would always be picked up by the Charity Commission, but people are on the qui vive these days. I think noble Lords will agree that complaints to the Charity Commission are made regularly and without inhibition.
Baroness Hayter of Kentish Town
The point is not to support the candidate in order to get that candidate elected but to put pressure, usually, on a Minister to have those views heard, be it about drink-driving or something else. That is why, believe me, we do not do this stuff without the Charity Commission okaying it, because it is not to influence how people vote but to use the fact that the Minister is in that particular constituency to go there. It is not to get people to vote, so it is acceptable.
Lord Phillips of Sudbury
I am sorry if I misunderstood. Perhaps we can talk about this outside the Chamber, because this is not the place or the time to go into it in any more detail. All I am saying, and I will assert it without equivocation, is that the law is clear. I say that it is clear, but the law is there and it is well used and old and practical. The Charity Commission needs more resources but the amount of abuse is minuscule in relation to the size of the sector and I remain utterly opposed to lumbering this sector, of all sectors, with double regulation.
The non-charitable NGO sector includes some wonderful organisations but also some very shady ones. There are, I am afraid, a number of non-charitable NGOs that are used for violent political purposes. Money is poured into them, either for commercial or extreme political purposes, and there is nothing to stop them, as things stand. We have quite different categories to deal with and that is why it is entirely right, sensible and practical to have separate categories in terms of regulation. To lumber the charity sector with double regulation should be the last of our intentions. That is my fundamental point and on that note I beg leave to withdraw the amendment.