Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
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Baroness Royall of Blaisdon
My Lords, noble Lords from across the House have made it abundantly clear that the Government’s decision to significantly reduce the threshold at which organisations register with the Electoral Commission was not based on any evidence and would significantly hamper the ability of civil society organisations to participate in democracy in the run-up to an election. I add to that the comments from committees of this House and of the other place about the lack of an evidential base for this policy.
The Joint Committee on Human Rights said:
“We are not yet satisfied that the Government has sufficiently explained the need for the reduced registration thresholds (particularly in light of the increased range of regulated activities)”.
The Political and Constitutional Reform Select Committee said:
“In the absence of any evidence that there is a need to lower the threshold for third parties to register with the Electoral Commission, we recommend that the Government revert to the existing levels”.
The reductions are patently unreasonable and unfair, but they give rise to a particular concern because of the cumulative effect of provisions in the Bill. The evidence of that is overwhelming in the report of the commission. The noble and learned Lord, Lord Hardie, was right to ask what assessment had been made of the cost of the new obligations and bureaucracy. I look forward to the Minister’s answer.
The decision taken by the Government when they drafted the Bill to lower the thresholds at the same time as increasing the range of regulated activities—including, astonishingly, staffing costs, which we debated on Monday—suggests that the Bill is more about stifling dissent in the run-up to an election than about taking big money out of politics; at least, that is certainly the effect of the proposals that they have come up with. The Network for International Development Organisations in Scotland has said that,
“a prevalent fear is that it will put a halt to all activity. If the threshold is as it stands, that would be one member of policy staff. Everybody else would have to stop work. It would effectively cut down some organisations”.
The Electoral Reform Society agrees, and says that:
“I think that this will kill small organisations. They just won’t participate. There is just too much bureaucracy. They’ve never had to register before”.
Finally, the RSPB corroborated both these statements, saying that,
“it is illogical to halve the thresholds and caps at the same time as widening the activities that count towards them; this could seriously curtail legitimate charitable work”.
I wonder why the thresholds were changed and I would be grateful for an explanation from the Minister.
The noble Lord, Lord Tyler, was, in many ways, fear-mongering about the flooding of organisations by big money. I have looked at Bond, because the noble Lord quoted it. It said that big money in a constituency was “theoretical” and that no one had provided a specific example. As the noble and right reverend Lord, Lord Harries, said, we are casting our net to catch the large fish but it is the small fish—which play a hugely important part in making our civil society vibrant—that are being caught, and the governance of the country will suffer.
My noble friend Lady Mallalieu was very clear about the issue. The Commission on Civil Society and Democratic Engagement says, in its report:
“The most important measures to avoid undue influence, such as US style super PACs, are already in PPERA and the Representation of the People Act. In addition, none of the measures introduced effect undue influence in relation to political parties or candidates”.
I look forward to the Minister’s response.
In closing, I will say that I, like others, am particularly concerned about the situation in Northern Ireland, where the reduction to £2,000 is not just unfair and unworkable but absurd. On Monday, we all agreed that civil society has a vital role in sustaining the peace process in Northern Ireland, where the situation is still fragile, and the reduction in the threshold can act only as an impediment to the fantastic work of its vibrant and valuable civil society. I look forward to hearing from the Minister that the Government have, indeed, listened and will move on this issue.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, I thank the noble and learned Lord, Lord Hardie, for introducing these amendments. It has been obvious since Second Reading in this House, and indeed before, that the registration threshold has given rise to considerable controversy and debate. As noble Lords are aware, third parties that incur controlled expenditure are not subject to any electoral controls on their activities provided they campaign only up to a particular expenditure threshold in a relevant election.
The 2000 Act sets this threshold at £10,000 for third parties campaigning in England and at £5,000 for third parties campaigning in Scotland, Wales or Northern Ireland. As has been said by numerous contributors, the Bill amends these amounts to £5,000 and £2,000 respectively. The noble and learned Lord, Lord Hardie, perfectly fairly asked the purpose of this. The aim is to increase openness. There is a good argument that those who spend money in a way that can reasonably be regarded as intended to promote or procure success at any relevant election—to promote not a policy but the advantage of a party or candidate—should do so transparently. Amendment 166, tabled by the noble and learned Lord, seeks to return the thresholds to their original PPERA levels. The amendment tabled by my noble friend Lord Tyler seeks the same result, but proposes a third threshold of £5,850 where spending has been incurred solely in a single constituency.
My noble friend Lord Hodgson goes a step further and suggests thresholds of £14,000 in England and £7,000 in Scotland, Wales and Northern Ireland. The amendments tabled by the noble and right reverend Lord, Lord Harries of Pentregarth, go further still and propose thresholds of £20,000 and £10,000 respectively. Finally, the noble and learned Lord, Lord Hardie, suggests a registration threshold of £25,000 applied to each of the constituent parts of the United Kingdom.
Noble Lords will know that when a third party registers with the Electoral Commission, it becomes a recognised third party. Upon registration, the third party becomes subject to spending and donation controls for the duration of the regulated period of the relevant election. The Bill intends to ensure greater transparency of campaign finance, which is why it revised the current registration thresholds to £5,000 and £2,000. It was intended to have the effect that more third parties would be required to account for expenditure and provide details of the donations they receive, bearing in mind that the fact of registration means that the expenditure can reasonably be regarded as intended to promote or procure success in a relevant election for a particular party or candidate.
Baroness Hayter of Kentish Town (Lab)
I was going to bring this up in our stand part debate, because it is important. With the permission of the Committee, I will do so now. On Monday an impression was given—I am sure misleadingly—by the noble and learned Lord, which he has just now repeated. He said that,
“organisations … will incur controlled expenditure … only where their activities, ‘can reasonably be regarded as intended to promote or procure electoral success’, of ‘parties’ or ‘candidates’”.—[Official Report, 16/12/13; col. 1042.]
He keeps using that phrase, which is accurate, and in the Bill. However, that is only part of the definition. The House needs to recognise the point that my noble friend made on Monday. It is not simply about promoting but also, of course, about reducing the chances of electoral success. I think that the examples given were of the campaign against the war in Iraq or against the bedroom tax.
I will make just one other point. The law goes on to state:
“In determining whether expenditure can reasonably be regarded as intended to promote or procure electoral success … it is immaterial that it can reasonably be regarded as intended to achieve any other purpose as well”.
That, therefore, could be activity that is aimed at some other purpose, but which may damage a party, and so it would be covered. I am sure that the Minister did not want in any way to give a misleading impression, but by continuing to concentrate only on activity to promote a party rather than to harm it by discussing a policy—a policy that could suddenly become it—that is wider than his words perhaps suggest.
Lord Wallace of Tankerness
I hear what the noble Baroness says. I am sure, as she recognises, that it is difficult to be criticised for quoting directly from the Bill. However, she makes the point that there could be detriment to a party. It is quite proper, too, that if a third-party organisation was to campaign to try to defeat the Labour Party’s chances in a range of constituencies and its activities could be quite reasonably seen as aiming to thwart the Labour Party in a campaign, it is important that there is transparency—that people know where the money comes from and what is behind the campaign to do down a particular party. On Monday we had a debate on principal purpose which the noble and learned Lord, Lord Hardie, introduced. Of course there can be other purposes. It may be that in trying to do down the Labour Party that group hopes to raise funds and increase its membership. However, that does not detract from the fact that there is an electoral purpose, which is what we seek to catch. I see the noble Baroness shaking her head, but it is important to remind the House that the definition we are talking about is one that her party put into legislation in the 2000 Act. It is slightly ironic that I am having to defend that definition, when her own party put it into the original 2000 Act.
Baroness Hayter of Kentish Town
That Act covered publications, which are quite clearly and easily defined as this. The worry about this clause is that it includes rallies that might happen. They are not aimed at harming the Labour Party. On Iraq, they were aimed at stopping the war. The effect was to affect a political party. Therefore again, the Minister is suggesting that the activity has to be aimed at electoral outcome rather than at a particular policy. Every group that has spoken this morning about this as a result of reading his words on Monday, says that his words are narrower than what its lawyers tell them is suggested by the wording of the Bill.
Lord Wallace of Tankerness
My Lords, it is not a subjective test—we made that very clear. The Labour Party did not put a subjective test into its legislation in 2000. It is an objective test. Therefore, to say that it is solely about what a particular third-party organisation aims to do is not a fair representation of what it says. It is about what can reasonably be regarded. That is an objective test, and we rehearsed all the arguments for and against an objective or subjective test. Therefore it is not unreasonable to remind the Committee about what is here in the Act, which is a definition that the Government introduced by amendment in the other place because people clearly expressed that they wanted us to use the tried and tested definition that was used in the elections of 2005 and 2010. However, I accept that there has been a perception of the possibility of a chilling effect. I think I said that on Monday, and I accept that representations have been made to me and to my noble friends.
Baroness Mallalieu
In the light of what the noble and learned Lord is saying, could he clarify what the position would be if a charity, or a non-charity, had a core campaign on which it had been working for some time, and during the regulated period the Government of the day, or an opposition party, adopted that policy—or, indeed, adopted a policy directly contrary to it? A party might adopt that campaign objective as policy—or, indeed, a party might introduce legislation affecting it. If the organisation steps up its campaigning because of the change in the political situation, does that core policy not then become something that is brought under the Bill, where it would not otherwise have been?
Lord Wallace of Tankerness
I think I addressed that point in our debate on Monday, and I quoted from the Electoral Commission’s guidance on the subject. The noble Baroness’s final sentence was interesting, because she asked what would happen if the organisation stepped up its campaign. I think I gave reasons on Monday why, if an organisation had a campaign that had been going on for many months or even years, and one party subsequently decided to endorse it, that should not affect the organisation. However, if it seized on that development and sought to ratchet up its campaign by several notches, and encouraged—at least by implication—people to vote in a certain way, that would make a difference. That is reflected in the Electoral Commission’s guidance. On Monday we had a discussion on whether it would be better to clarify such things in the Bill or to leave it to guidance. That is a perfectly legitimate question, and as I said then, it is one on which the Government would obviously want to reflect.
Baroness Mallalieu
Will the Minister, during the reflective period, focus on the idea of something that suddenly becomes topical because the Government of the day introduce a Bill that does exactly the opposite of what the campaigning organisation wishes to achieve? He talked about “ratcheting up”, or increasing the volume. Surely that would be an inevitable part of campaigning if the organisation were suddenly faced with what it saw as a piece of hostile legislation. Would that organisation not then be able to campaign actively against the measure—although presumably, that is not something to which a Government who were anxious to encourage democracy would object?
Lord Wallace of Tankerness
We had a very thorough debate on this subject on Monday; I do not want to go over again everything that I said then, and rerun that debate. I will certainly reflect on what the noble Baroness has said; indeed, I spoke on Monday about some of the clarity sought. I think that the noble and right reverend Lord, Lord Harries, was encouraging me to act, and said that a number of people wanted to put things in the Bill. He listed a number of things, and I said that there had to be a balance between what we put in a Bill and what we leave to guidance. That is a perfectly proper matter for us to reflect on, and we shall bear the noble Baroness’s comments in mind.
I was about to say that charities and other campaigners had expressed fears that because low-level campaigning and expenditure could be regulated as a result of the Bill, small organisations would face a disproportionate reporting and compliance burden. Those concerns have been reflected in most of the contributions this morning. My noble friend Lord Tyler talked on Monday about the balance between transparency and regulation. Almost inevitably, the more transparent we seek to make the arrangements, the greater will be the amount of regulation. That point was echoed this morning by my noble friend Lady Williams.
This is the balance that we are trying to get right. We believe that there should be greater clarity about who is campaigning for the electoral success of parties or candidates—but equally, we do not want small campaigners to be dissuaded from taking part in public debate by fear of having onerous burdens placed upon them. Therefore, in line with what my noble friend Lord Wallace of Saltaire committed in the House on 5 November, as I have said, and, indeed, as I said when opening the first set of amendments on Monday, the Government will bring forward amendments on Report to increase the registration thresholds.
Lord Tyler
Will my noble and learned friend make one point absolutely clear to the Committee? If, as has been suggested this morning, the registration threshold was moved as high as £25,000, it would be perfectly possible for an organisation or individual to spend £24,999.99p in one constituency without being in any way accountable for how that money was spent and without having to be transparent about where the money came from, even though that sum would far exceed what we might expect to have as the limit on spending. It simply would not be known that that was happening because the registration threshold was so high; hence the significance of the measure that my noble friends and I have tabled.
Lord Wallace of Tankerness
My noble friend anticipates what I was about to say. However, he is right, subject to the caveat in the Representation of the People Act and its interplay with the restrictions on spending in individual constituencies, that sum would be almost twice what the candidate could spend. It seems a bit perverse that, if you have a campaign, you cannot answer for it if you are a candidate or party. However, we will come on to the constituency limits and the important interplay with the Representation of the People Act.
The noble and learned Lord, Lord Hardie, referred to the figure of £25,000, which, as my noble friend says, would allow quite a lot to be done without the need for transparency. Nevertheless, the noble and learned Lord made an important point abut there being the same threshold in each of the constituent parts of the United Kingdom. At a very early stage—I think before I had been given the “hospital pass” —I met a group of citizens in my former constituency as my successor thought that it would be a good idea for me to meet them. One of the points that they made was that, in reducing the thresholds from £10,000 and £5,000 to £5,000 and £2,000, there had been a bigger pro rata decrease for Scotland, Wales and Northern Ireland. I have certainly raised that issue. It is an important issue with regard to what the threshold is in the different parts of the United Kingdom. I certainly undertake that we will consider that point. I think it was also raised by the noble Baroness, Lady Royall, specifically in relation to Northern Ireland.
I reiterate the point made by my noble friend Lord Tyler with regard to constituency limits, consistency and not subverting the constituency limit by having a threshold that is too high. I accept that some of those who argue for a higher level do not want a constituency limit at all, but we shall deal with that in greater detail later.
I repeat that our objective is to ensure transparency, but we need to strike a balance. We do not want to have a chilling effect, even if it is just a perception on the part of smaller organisations that they would exceed the threshold even if their activities were not necessarily ones that would require them to register. Therefore, I repeat that we believe a substantial increase from the level in the Bill would, indeed, be appropriate.
The noble and learned Lord, Lord Hardie, possibly in a festive mood, tried to be seductive by suggesting that we accept his first amendment and restore the status quo. It is seductive but, at the risk of spoiling the Christmas spirit, I do not think that the legislative hokey-cokey of “in out, in out and shake it all about” is the best way to do this. The Government will bring forward an amendment on Report which, as I have indicated, will introduce a substantial increase from the level in the Bill. On that basis, I urge the noble and learned Lord to withdraw his amendment.
Baroness Hayter of Kentish Town
My Lords, it will probably come as no surprise that the Labour Party supports reducing the cost of politics, not simply because that is right nor just because of the warnings sounded by the noble Baroness, Lady Williams, who is not in her place, on Monday and this morning, but perhaps because Labour is outspent by the Conservatives. The current situation is bad for democracy, not simply for ourselves, and the major reason is because money and politics rarely mix. We want all groups, candidates and parties to be able to put their views to the electorate without needing to raise large sums or without having to be rich enough to fund a campaign themselves.
Although we are slightly unsure about the wording of the Bill, we think we have much in common with the intention behind the Government’s changes, in that we support transparency and lowering costs. However, we are concerned, for the reasons that we have just heard, about what they have sought to do and the figures that they have chosen. Neither the noble Lord, Lord Horam, nor the rest of us know where the figures come from. The Electoral Commission quite rightly says that it is for the Government to propose and for Parliament to decide on the appropriate limits, in order to balance that freedom of expression against controls of undue influence. The commission listed some of the factors we ought to think about, such as inflation and the wider range of activities. However, we find it difficult to see how the Government have thought about those matters in the way that my noble friend Lady Lister suggested because we have seen nothing of the assumptions that they have made about the costs associated with policy research, press, meetings, debates and staff, which will now be covered by the Bill—and over a 12-month period.
In the earlier debate the noble Lord, Lord Tyler, compared what a third party might be able to spend against what a candidate might spend; of course we are talking about a 12-month period, not when the candidates are affected in the short campaign. So, as others have done, we ask: what are the factors that led to these figures? Were they grabbed out of the ether, rather like the 500 seats in the Commons that the Government, as the House will remember, were set on last time? Did these figures just come out of a roulette wheel without rhyme or reason, or is there something that we could look at to test the Government’s assumptions that these are the rights figures? Without that, it is very hard to see the logic behind them.
Lord Wallace of Tankerness
My Lords, again we are grateful to the noble and leaned Lord, Lord Hardie, for introducing this part of the Bill and the consideration of the overall spending limits. As no doubt the Committee is aware, third parties are subject to limits on the amount of controlled expenditure that they may incur during the regulated period of a United Kingdom parliamentary general election. The initial figures set out in PPERA 2000 set the limit at £988,500 for the whole of the United Kingdom and this Bill, as has been heard, seeks to amend that limit to £390,000. The limit in either case is of course the aggregate of individual limits of each part of the United Kingdom. That means that expenditure is allocated in accordance with where its effect is most significantly felt. If a body has its head office in Scotland, for example, but undertakes and targets its campaign work only in England, then that spending will be allocated to the English limit and not the Scottish one.
The noble and learned Lord, Lord Hardie, has tabled amendments so that the spending limit for third parties remains as it is in PPERA 2000, and the noble and right reverend Lord, Lord Harries of Pentregarth, has proposed limits that would take the spending limit to £1,406,000 across the United Kingdom as a whole. This substantial increase, as I understand it, is to reflect inflation since the original limit was set 13 years ago. There has been considerable discussion, not just in this House but also in the other place, about third-party campaigners and the potential to incur significant amounts of expenditure in campaigns. This was spoken about very eloquently by my noble friend Lady Williams. The noble Baroness, Lady Hayter, indicated that her party has no desire to see the cost of politics increase, nor, indeed, do we want to see a disproportionate effect on elections by those who have lots of money to throw around.
There is also the potential, given that limits are imposed on political parties—let us remember that, if we look at this in its full context, there are limits on political parties—that we would undermine that regime if their supporters could still demonstrate their backing by diverting funding to a formally or informally aligned party. Allowing very large sums to be spent to the benefit of parties that are candidates in this way risks, I believe, undermining the basic rules that have evolved over the years in terms of restriction of political spending in elections. The nature of third parties means that controls on their spending are necessary. I do not believe that we have really debated limits, but I do not think that anyone has challenged the principle that there should be some control on substantial spending.
There is some evidence of third-party expenditure increasing. In 2010, eight third-party organisations spent more than £100,000, although, as I think my noble friend Lord Horam correctly pointed out, most who were registered—and only 30 were registered—spent considerably less than that. Indeed, some who were registered spent nothing at all. Although there were eight who spent more than £100,000 in 2010, in 2005 only two groups did so. I believe, and we have said all these things many times, that it is about trying to strike the right balance to ensure transparency. We believe that the figure in the Bill is a reasonable limit for national third-party campaigning. Most campaigns in the last election did not spend anywhere near either the total amount that was available then or the amount that is proposed in this Bill.
It has been argued that these previous campaigns did not require third parties to account for a much wider range of activities, but it is worth reflecting on the fact that the Green Party, a political party, spent £330,000 on its national campaign in the 2010 general election. That campaign activity included incurring expenses on advertising, unsolicited materials, manifestos, market research, transport, media events and rallies—all activities that third parties should also account for. No one can doubt that the Green Party had a very strong voice in that campaign and indeed succeeded in getting its first ever Member elected to the House of Commons. It was a voice within a national debate. In fact, only four out of well over 100 registered political parties spent more than £390,000 in 2010: the Conservative Party, the Labour Party, the Liberal Democrats and the UK Independence Party.
We are setting a limit which, as I said, only four political parties exceeded in 2010, and a party that was recognised as having played a full part, albeit without standing in every constituency, in a national election in all its activities spent less than £390,000. We do not believe that third parties should be dominating the electoral landscape—by “third parties” I do not mean political parties but such as we have discussed in this debate, as of course I think third parties have an important role to play in the party-political scene—and creating campaigning inequality among political parties. We believe that the spending limits are appropriate and proportionate.
The noble and learned Lord, Lord Hardie, drew attention to the differential that exists in Schedule 10 to the 2000 Act, and I accept that this Bill is looking at the UK limits. It will also recognise that while you might have a campaign to be undertaken on a pan-UK basis, it is not quite the same as if you were focusing solely on Scotland for a Scottish election and so I think that there is some scope for a differential.
We believe that, having reduced the limit to a sum that has not inhibited, or would not have caught, the Green Party at the last election or indeed the vast majority of third parties that were registered and campaigned, this is not an unreasonable balance to be struck. I invite the noble and learned Lord to withdraw his amendment.
Lord Harries of Pentregarth
Will the Minister not acknowledge, in relation to the spending by the Green Party, that of course it did not have to include staff costs in the figure that he quoted? As the Bill now stands, third-party campaigners have to include staff costs, so there is not an even playing field. Furthermore, will he acknowledge that the whole political landscape now is very different from what it was, say, 20 or 30 years ago, with a dramatic decline in political-party membership and the rise in membership of third-party campaigners? Does the apparent indifference of so many people, sadly, to political-party campaigns and their enthusiasm and commitment to third-party campaigns not indicate that third-party campaigns should be treated equally seriously as a fundamental feature of our democracy along with political parties, particularly at election time?
Lord Wallace of Tankerness
The noble and right reverend Lord, Lord Harries, makes a fair point that, as a party, the staff costs were not included, but I think one of the reasons was referred to by my noble friend Lord Gardiner on Monday. Political parties’ staff are fully committed and are very transparently fighting an election, whereas one might reasonably assume that, when larger organisations undertake political campaigning—and we accept that they are registered because they believe that their campaigning could reasonably be judged to give an electoral advantage, or disadvantage, to one party or another—their staff’s time is not entirely taken up with it. He makes a fair point, but there is also a distinction because it would not be the entire staffing costs of a particular organisation that would be taken into account.
I wholly accept the point that has been made about the richness of the debate, with groups contributing in ways they have not done before, much of which is made possible, I suspect, by electronic media. Those of us who have had to stuff envelopes in the past probably realise that there are easier ways of campaigning and getting the message across, as well as being cheaper than the printed material which the noble Earl, Lord Sandwich, mentioned in his earlier intervention. In some respects, campaigning costs themselves have gone down over the years because of the nature of much of modern campaigning.
Lord Aberdare (CB)
I have been listening to the debate in as objective a fashion as I can manage. The noble and learned Lord has made a strong case for why the limits should perhaps not be increased, and to me he has also made a strong case for why the existing system is working well. The bit that still puzzles me, particularly in the light of the increased coverage of the new definition of controlled expenditure, is the justification for actually reducing the limits. That, I am afraid, I have not been convinced by.
Lord Wallace of Tankerness
My Lords, I think I indicated that even with the reduced limits, on the list I have before me there were only two organisations that went above them, one being UNISON and the other being Vote for a Change Ltd, and neither of those got anywhere near the limits set out in PPERA. Even with the reduced limits, most organisations would not get anywhere near them. I take the point made about staffing made by the noble and right reverend Lord, Lord Harries. Even a political party, the Green Party, which fought a fully fledged election campaign, admittedly not in every constituency but one that registered in the national campaign, did not reach the reduced limit. In trying to strike these balances, these limits are not unreasonable.
Lord Hardie
I am grateful to noble Lords on all sides of the Committee for participating in the debate. I hear what the Minister has said about what the effect of these limits would have been had they been applied to the last election and I want to reflect on that. I note also that the noble Lord, Lord Hodgson, referred to the experience of the last general election.
I think that the noble and learned Lord also acknowledged that much of the difficulty might be removed if staff costs were taken out of the equation. Certainly that is a point the noble and right reverend Lord, Lord Harries of Pentregarth, raised just now. I wish to reflect on these matters before Report, but in the meantime I beg leave to withdraw the amendment.
Baroness Hayter of Kentish Town
My Lords, we gave notice of our intention to oppose the Question in order to say some of the things that have now been covered, so the Committee will be pleased to learn that I shall not repeat them. One of them is the lack of rationale given for the figures for the threshold and, indeed, for the spending limit. I congratulate the Minister, who has managed to give a whole answer without explaining why the figures were chosen. Given the questions that he was asked, it is a clever move. It remains the case that the Electoral Commission, which after all is the Government’s independent adviser, has called on them to raise the thresholds and put up the spending limits, because everything is going to be covered. Some organisations have been mentioned already, but the BMA, NCVO, RSPB, Oxfam, the Royal College of Nursing and ACEVO, which have to work with this, all say that they do not know why the changes to the thresholds and the spending limits are there, or how the new figures were chosen. That remains our worry about this clause.
I want to add one point, but I do not want to repeat the exchange that the noble and learned Lord and I had on the first group of amendments today. He again used the phrase that the provisions will cover only those things that are done in a way to “influence” an election. But as we know, the law says that it is immaterial whether something can be regarded as intended to achieve any other purpose as well, and therefore things that can be done not with the intention of influencing an election could well be covered. The definition of electoral material goes on to include, for example, a definition of a “candidate”, which,
“includes a future candidate, whether identifiable or not”.
There is no need to mention parties or candidates by name for an activity to be deemed to be controlled expenditure. That, I think, is one of the issues that remains with us even after the debates today. I think the Government still feel that the NGOs are exaggerating the potential damage. However, the NGOs will continue to worry about what is covered by both sets of limits in this clause, and by the lack of a rationale for the new figures.
Lord Wallace of Tankerness
My Lords, I thank the noble Baroness for raising these issues once again. The Government accept that the figures for the spending threshold for registration set out in the Bill need to be revisited, and I suspect that the outcome of that will reflect the concerns that have been expressed. However, I do not think I can honestly say that there is a scientific means of arriving at a figure, any more than I suspect the Labour Government used a scientific method to reach their figures for spending limits and thresholds in 2000. I repeat that the balance we seek is one that will secure greater transparency but not lead to unnecessary regulation, particularly taking into account the concerns that have been expressed by a number of smaller organisations. I hope that when we come back with our amendment, it will meet the test of not imposing undue burdens but providing for fair transparency.
I shall not rehearse again all the arguments that were made in the debate immediately prior to this on the total spending limit, but we must have regard to the fact of what one political party is able to do, and bear in mind that the fifth report of the Committee on Standards in Public Life thought that the existing limits were quite generous. Of course, no science will ever get this absolutely right, but the figure will nevertheless still allow the healthy involvement of a number of campaigning organisations.
The possible difference between us is that the noble Baroness takes the view that a subjective test should apply, whereas we are sticking by the objective test. That is a perfectly legitimate difference of view for us to have, but I believe that the objective test is more rational. It is reasonable and is the one that informed the legislation currently on the statute book. In respect of some of the concerns that the noble Baroness has expressed, organisations which are properly campaigning on issues and trying to persuade Governments to change policy or reinforce policies they already have would not be seen, on an objective test, as trying to secure an electoral advantage.
I hope that that reassurance will be passed on because it is important that those organisations continue to play their very proper role in trying to persuade Governments, Oppositions or whoever about particular policy issues. There is certainly no desire on the past of this Government to try in any way to inhibit that. With those remarks, which I hope were reassuring, I ask the Committee to agree that the clause should stand part of the Bill.
Baroness Hayter of Kentish Town
My Lords, we have talked about taking money out of politics. If I heard the noble Lord, Lord Horam, correctly, he received a donation from the noble Lord, Lord Ashcroft, of £6,000. It is Labour Party policy that donations should be limited to £5,000, so perhaps the most important thing that we could do to get money out of politics—not under the Bill—would be for him and other members of his party to sign up to a maximum donation of £5,000.
Whatever the intention of constituency limits, we have heard that they are unworkable for campaigning organisations and certainly unenforceable by the Electoral Commission. As the noble and right reverend Lord, Lord Harries, and the noble and learned Lord, Lord Hardie, said, political parties do not have these rules for national campaigning, let alone for a whole 12-month period. They do not have to account for staff costs nor try to parcel up their national spending by ward or constituency boundaries. However, political parties at least have a very good reason to organise by constituency; campaigning organisations do not. They campaign against wind farms, for a new zebra crossing, against payday lenders, or in favour of badgers. As we know, badgers move, as does HS2, which will run through hills and dales, counties and boroughs. Such campaigning does not fall into neat little constituency boundaries, which of course the Government anyway want to change for every election under their new law.
The new limit is £9,750 per constituency spread over a full year. That must cover costs of staff, hire of halls, adverts for meetings, posters and publicity. It will cause difficulty for small organisations which run a campaign limited to a geographical area but also for national campaigns with a federated structure. The boundaries for national and even local organisations rarely follow the constituency boundaries that we in politics know well.
Those organisations will need to estimate whether their campaigning costs relate to activity in particular constituencies and ensure that their planned spending will then stay within the new limit for each activity in each constituency. That will be problematic. First, they will have to find what the constituencies are. Many of them will not know—they are not political anoraks and they do not know the boundaries of those constituencies. They will then have to see which bit of spending lies where. It will be different for local organisations, but it will also be, as has been mentioned, virtually unenforceable within the time limit of this election by the Electoral Commission, particularly where breaches occur in the last few weeks of a campaign. It will require real-time monitoring; it will require the commission to respond to allegations across 650 constituencies during a whole 12-month period—that is, starting in May. I defy anyone who, like me, has run an organisation to be up and able to do by then something of that nature.
As has been said, this clause is incomprehensible, unworkable and unnecessary. The Conservatives, of course, have form on Clause 28. I suggest that they get rid of this one so that they do not have the same trouble as they did with the last one.
Lord Wallace of Tankerness
My Lords, it was clear from many of our previous debates that the issue of constituency limits had attracted considerable discussion, not to say controversy. The fundamental point here, which was very well made by my noble friends Lord Tyler and Lord Horam, is that it would be wrong if a third party could choose to direct its entire national spending limit at only one small part of the UK, thereby focusing the full force of the considerable spending available to it on that very small part. It would be disproportionate if that was one constituency. That point was articulated. It would be a travesty of the democratic process if so much was focused on one constituency.
To prevent such occurrences, the Bill introduces what I admit is a new provision whereby third parties will be permitted to spend only a certain proportion of their controlled expenditure in individual constituencies. Clause 28(6) limits per constituency spending to 0.05% of the maximum campaign expenditure limits applied to political parties. This amounts to £9,750. The limit applies for the duration of the regulated period for a UK parliamentary general election.
It is proposed that a third party’s expenditure would be wholly attributed to a constituency provided that the expenditure had “no significant effect” in any other constituency. It is of course possible that expenditure in a local area may be attributed to a number of constituencies—for example, in Lewisham, where I think that it would be relatively straightforward to see three constituencies.
I accept that if someone was handing out leaflets in Princes Street in Edinburgh, it would be very difficult to say that that was focused on a constituency—which I think used to be Edinburgh Central, but these boundary changes happen so often—and was not having an effect elsewhere. If anyone was handing out leaflets in the constituency which I formerly had the privilege of representing, in Kirkwall or in Lerwick, it would be almost impossible to suggest that it was intended to have an effect on any other constituency, as it would be focused in the one place. The concerns that have been expressed about how you identify boundaries will often be easier to determine with regard to specific case examples.
In response to a point that the noble Baroness, Lady Mallalieu, raised on a number of occasions, I should stress that the limits on constituency spending do not remove or replace the important existing controls of the Representation of the People Act 1983. These rules are long-standing and stipulate that third parties campaigning for a candidate or candidates in a particular constituency—which includes negative campaigning against others—may spend only up to £500. Clause 34 would raise this amount to £700. While introducing a limited requirement to keep a record of such expenditure, the Bill does not otherwise affect the provisions of the Representation of the People Act. Third parties campaigning in local campaigns would be well advised to heed the strictures of the Act. First and foremost, if a particular organisation or group intends to go into a single constituency to promote a particular candidate, or to attack a particular candidate, it would be well advised to have regard to the provisions of the Representation of the People Act.
Lord Tyler
Will my noble friend confirm that that applies to the post-dissolution period in a constituency and not to the 12 months leading up to a poll?
Lord Wallace of Tankerness
My noble friend is absolutely right, but it is important that we do not lose sight of that provision.
There are other types of campaigning that are already regulated under PPERA and that we consider should be subject to the national third-party controlled expenditure campaigning limits and the constituency limits which this clause introduces: first, campaigning for or against a particular party; and, secondly, when a campaign is intended, or may reasonably be regarded as being intended, to support groups of candidates because they are of a particular type or because they support particular policies or hold particular views. For instance, if a third party campaigns with the message “vote for those candidates who support green taxes”, this would be spending regulated under PPERA and subject to the national third-party controlled expenditure campaigning limits and the proposed constituency limits. For both types of campaigning, a third party could choose to direct this entire national spending limit at only a small number of constituencies. That is why we consider this clause to be necessary.
A number of amendments have been proposed. The noble and right reverend Lord, Lord Harries of Pentregarth, has proposed Amendment 170, which would remove constituency limits altogether. I accept his point that this would be for the 2015 election, and that we must look at it in that context, but I think that there is concern that a huge loophole could be created.
Some have said that there was no evidence of a problem in 2010—or, as the noble Lord, Lord Ramsbotham, said, that there has been no example of a constituency being completely swayed or influenced by third party expenditure. But how many times do Ministers receive strictures because they did not anticipate a problem? If this were not in place, what would happen after the 2015 election if the kind of event to which the noble Lord refers had taken place in a constituency and there was felt to be a considerable travesty? I rather imagine that some would say, “Ministers knew they had a Bill going through Parliament. Why did they not do something about it at the time?”. Is it the case that we always have to wait for a problem or travesty to arise before we take action?
The constituency limits will be enforced by the Electoral Commission. I have heard the concerns that have been expressed about that. The Government have been in many discussions with the regulator on this issue, and we believe that the commission can regulate spending in constituencies in the same manner as it regulates national spending. The noble and learned Lord, Lord Hardie, asked whether an Electoral Commission enforcement officer would be needed in each constituency. That is certainly not what is anticipated.
Lord Hardie (CB)
I did not say that. I was not anticipating 650 enforcement officers. I was suggesting that if there was to be contemporaneous enforcement of this provision, it would be necessary to monitor each of the 650 constituencies, and for the appropriate enforcement officer, who might be covering several constituencies, to take action.
Lord Wallace of Tankerness
I accept that clarification and apologise if I misrepresented the noble and learned Lord. As I think my noble friend Lord Horam indicated, the current political parties expenditure rules are not always the easiest to enforce. Very often the best enforcers are the opposition—because, as those of us who have had active experience of political campaigns know, if there is any hint that somewhere or other there has been jiggery-pokery or money spent that should not have been, the candidates on the receiving end will be very quick to alert the regulatory authorities to what has gone on.
The same applies to the question that was raised, quite fairly, about how expenditure could be attributed to a constituency. We believe that it would be in line with the current guidance that attributes spending between different parts of the United Kingdom. Where spending in constituency A has a minor effect in constituency B, the entire spending amount should be allocated to the constituency that it was aimed at. For example, if a third party advertised in a local paper in constituency A that just happened to be distributed in a small part of constituency B, the entire amount should be allocated to constituency A.
That was really brought home to me when the noble and right reverend Lord, Lord Harries, asked, “How would we allocate the timing of the activities of a battle bus?”. I say this with no criticism whatever, but those who have not been involved in party election campaigning do not understand the difficulties that are sometimes experienced by those who have to act as election agents in allocating and working out expenditure returns for those who are involved in it. The noble Baroness wishes to intervene but I am just going to give an example. In 1979, my noble friend Lord Steel of Aikwood, then David Steel, the leader of the Liberal Party, probably introduced the battle bus to British politics. Immediately after that election in May 1979, I was adopted as the Liberal European candidate for the south of Scotland, which included the constituency of Roxburgh, Selkirk and Peebles. I had as my election agent the agent for Roxburgh, Selkirk and Peebles, who had been David Steel’s election agent in the general election that immediately preceded it. He went by the wonderful name of Riddle Dumble, and, as my election agent, he told me, “I’ve got this nightmare of trying to do David’s election expenses return; I have to sit down and allocate the amount of time that his battle bus was in the constituency, and what part of it represented constituency campaigning and what was part of the national campaign”. This is not something that is new.
Baroness Hayter of Kentish Town (Lab)
We are professionals in a party. It is our job to run elections. That is the whole point that we are making. It is core to us; it is what we are trained for. I ran European elections. We know about it; we train our agents; we have the systems and have our computers set up for that; and we know ward boundaries and constituency boundaries. Here we are talking about different organisations that are here to help people with a drink problem, people in poverty and people who are going to be affected by the bedroom tax. They do not get trained in the way that we do.
Lord Wallace of Tankerness
I hear what the noble Baroness says, but if we are dealing with a situation where an organisation is trying to intervene in a constituency for the purpose of promoting the electoral advantage of one particular party, one particular candidate or a series of candidates in an area, then it is not unreasonable that there might be some responsibilities that go with that, particularly with the kind of substantial volume of money that we are talking about being spent in one or a number of focused geographical areas. No one is asking them to account for the work that they are doing in trying to tackle mental health issues or alcohol problem issues—that does not arise. They are caught by this only if the amount that they are spending in one particular constituency or group of constituencies is caught by these provisions, in which case there might just be a responsibility that goes with that. The point that I am making is that there is nothing new about that in terms of its enforceability. It is something that people, not least the Electoral Commission, have been grappling with for some time.
My noble friend Lord Tyler tabled a series of amendments that he hoped would add clarity to the provision. The word “clarity” is something that the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Ramsbotham, would certainly echo. My noble friend quoted the Electoral Commission with regard to his Amendment 170A, which would mean that election materials—leaflets, mailshots, adverts and so on that were specifically addressed to or delivered to households in a constituency, and unsolicited telephone calls to households—counted towards constituency limits. The main issue that I have with this amendment is that there could be key activities, such as rallies or events that were deliberately focused on an area, which would not be regulated, and it would not restrict material from otherwise being distributed or displayed. As I said, leaflets being handed out in the middle of George Square in Glasgow are different from leaflets being handed out in the marketplace of Thurso, for example, in the Caithness, Sutherland and Easter Ross constituency, which could not be said to be influencing any other constituency. However, I hear what numerous contributors have said in this debate about simplification, and there is an obligation on us to look at the provisions, without giving any commitment, to see if there is the possibility of looking generally at the question of simplification.
My noble friend also tabled Amendments 170B and 170D, altering constituency limits so that the figure was £10,000 for the whole of the regulated period and £5,000 for the post-Dissolution period. He has already pointed out that RPA kicks in for the post-Dissolution period. As for the proposal that there should be an opportunity for the Secretary of State to amend the constituency limits by order, there is already provision in Clause 30 for the Secretary State to amend constituency limits by order on the recommendation of the Electoral Commission. I hope that that covers his concerns, but no doubt if he thinks that they do not meet what he was proposing, he will indicate that to me.
His final amendment was one that I thought had much to commend it in terms of, as he said, trying to encourage political engagement. Amendment 170G would allow the constituency limit to be exceeded to a maximum of £15,000, or £10,000 in the post-Dissolution period, if a third party’s controlled expenditure was being funded by donations of less than £250 from donors within a parliamentary constituency. It would also allow a third party to spend up to 50% more than the national limit that would otherwise apply.
Because amounts below £500 are not currently considered to be donations under PPERA, the amendment would require a third party to carry out permissibility checks and record all donations, however small. This would be a fundamental change to the PPERA donation rules and would be likely to involve unmanageable compliance. Given the concerns that have been expressed about compliance and regulatory burdens, that factor would have to be borne in mind. It would increase the burden and would also risk having the opposite effect to what was intended. A large third party organisation with members and donors across the country may be able to identify sufficient donors in each constituency to give itself a disproportionate advantage, whereas a small organisation funded by very small donations would not be able to benefit in the same way.
I referred earlier to the Representation of the People Act. We are also concerned that linking expenditure to local donations in constituencies in this way could quite easily risk confusion with and undermine RPA rules or third party candidate campaigns, and I know that my noble friend would not wish to have such confusion between the two regimes. I hope that noble Lords agree that there is a need for constituency limits and that these can be properly enforced. I urge my noble friend to withdraw his amendment.
Lord Tyler
My Lords, I will respond very briefly to the debate. I think my noble friend the Minister will accept that there is real concern about making sure that we have—if we are going to have—applicable, effective and manageable constituency limits. Therefore, I am sure that we will return to this on Report. If we do not and were to remove the whole of Clause 28, I am sure that it would be put back, in one form or another, by our colleagues in the other place, who have a considerable interest in the extent to which their constituencies are subjected to considerable investment—