Transparency of Donations and Loans etc. (Northern Ireland Political Parties) Order 2018
(6 years, 1 month ago)
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Lord Duncan of Springbank
That the draft Order laid before the House on 23 November 2017 be approved.
The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)
My Lords, this statutory instrument, the Transparency of Donations and Loans etc. (Northern Ireland Political Parties) Order 2018, will provide for the full publication of donations and loans received by Northern Ireland political parties and other regulated donees or participants on or after 1 July 2017.
The current regulatory framework already provides for information on political donations and loans to Northern Ireland recipients above relevant thresholds to be reported to the Electoral Commission. However, the commission is forbidden by law from publishing or revealing this information to anyone, other than in very limited circumstances. This contrasts with the position in the rest of the United Kingdom, where information on donations and loans to political parties is published quarterly.
Party funding regulations were introduced across the United Kingdom by the Political Parties, Elections and Referendums Act 2000. However, these arrangements did not apply to Northern Ireland at the outset due to concern about the risk of intimidation of donors, which remained a major concern at the time. The Northern Ireland (Miscellaneous Provisions) Act 2006 provided for the 2000 Act requirement to report donations to the Electoral Commission to extend to Northern Ireland, but with provisions in place to prohibit their publication. The Electoral Administration Act 2006 made UK-wide provision for the reporting and publication of loans to political parties, similar to that already in place for donations. The Electoral Administration Act 2006 (Regulation of Loans etc. Northern Ireland) Order 2008 extended the 2006 Act provisions to Northern Ireland—but again with modifications to prohibit publication of details relating to loans for political purposes.
The donations and loans confidentiality provisions were always considered to be temporary, and public support for transparency has remained strong and consistent throughout the period that the provisions have been in force—and this Government have consistently made clear their desire to increase the transparency of Northern Ireland political loans and donations.
In January 2017, the then Secretary of State for Northern Ireland wrote to the Northern Ireland political parties to seek their views on moving to full transparency. For the first time—I stress—all parties that responded agreed that the time was right to introduce transparency to Northern Ireland. The Secretary of State also asked the Northern Ireland parties for views on a date from which transparency should take effect. Of the parties that responded at the time, the Alliance Party was alone in suggesting that publication should be backdated.
The issue was further discussed as part of the political talks that followed the Assembly election in March 2017. Again there was consensus that transparency should be introduced, and again only the Alliance Party suggested that publication of donations and loans should be backdated. The Secretary of State subsequently announced that the Government would bring forward secondary legislation to introduce transparency, and I am pleased to bring this important legislation before noble Lords today.
In light of the responses received from the political parties in Northern Ireland on the date from which transparency should take effect, and to ensure consistency with the Electoral Commission’s quarterly reporting schedule, the order will provide for the publication of details relating to all donations and loans received on or after 1 July 2017. I am aware there has been some criticism of the fact that the order does not provide for backdating of transparency to January 2014. However, the important point to note here is that when the decision was made, it was made on the basis of broad support among the Northern Ireland political parties. With the exception of the Alliance Party, the parties did not suggest backdating. Indeed, the opposition spokesperson on Northern Ireland in the other place was quoted as actively welcoming the decision not to backdate transparency to 2014 as the best decision because it had the support of the majority of the Northern Ireland parties.
In addition, much has been made of the position of the Electoral Commission. I hope that all noble Lords have had an opportunity to see the latest briefing note issued by the commission last week. The briefing made it clear that the commission fully supports this piece of legislation. It recommended that the Government bring forward a second, additional order that would see the provisions backdated to 2014—but again I stress that the commission continues to press for this order to be brought into force and implemented as soon as possible.
Although the primary objective of the order is to provide for publication of donations and loans from 1 July 2017 onwards, it also contains provisions to address a range of related issues, particularly in relation to the operation of the Political Parties, Elections and Referendums Act 2000. It may be useful if I now summarise these technical provisions.
Noble Lords will wish to be aware that the Northern Ireland (Miscellaneous Provisions) Act 2014 does not permit provision to be made in this or any other order allowing for information on donations or loans made or entered into before 1 January 2014 to be published. The Political Parties, Elections and Referendums Act 2000 provides for details of donations and loans received over the calendar year by a recipient from the same source to be published when their aggregated total exceeds the reporting threshold. Articles 2 and 3 of the order therefore provide for the publication of details about a donation or loan received before 1 July 2017 if it is aggregated with a donation or loan received on or after 1 July 2017, provided it is within the same reporting year.
Loans, unlike donations, may not be one-off events, and changes to a loan may be made over time. Certain changes to a loan, such as a change in the value or rate of a loan, a change of the repayment term, a change to the parties to a loan or the loan coming to an end, must be reported to the Electoral Commission. Article 3 provides for reportable changes taking effect on or after 1 July 2017 to be published if the loan was entered into on or after 1 January 2014. The effect will be that a change to such a loan which takes effect on or after 1 July 2017 will result in the publication of all details relating to that loan, including from the pre-1 July 2017 period. However, the order provides that such publication will not take place if the change to the loan is simply the repayment of the whole of the debt, or all of the remaining debt under the loan.
The prohibition on commission officials disclosing information relating to Northern Ireland political donations and loans is supported by a criminal offence. This will remain the case in relation to information about donations and loans unless that information is permitted to be disclosed by this order.
Articles 2 and 3 also provide that the commission will not act contrary to the prohibition on disclosure if commission officials publish information relating to a donation or loan received after 1 January 2014 and before 1 July 2017 if the relevant donation or transaction report does not state that the donation or loan was received before 1 July 2017 and commission officials believed that the donation or loan was received on or after 1 July 2017 and were reasonably entitled to hold that belief.
Your Lordships may be aware that the Political Parties, Elections and Referendums Act 2000 permits donations and loans from certain Irish citizens and bodies to Northern Ireland recipients. In such cases, additional information must be provided to the Electoral Commission in respect of these donors in order for them to confirm their identity. This includes passports and statements of naturalisation. It would clearly be inappropriate for the commission to publish sensitive personal information such as passport and naturalisation documentation, so Article 5 provides that such sensitive personal information will not be published by the commission. However, I can assure the House that all other information, such as names and addresses, relating to Irish donations and loans received from 1 July onwards will be published in the normal way.
Articles 6, 7, 8 and 9 of the order require political parties and regulated donees or participants to provide the dates on which donations or loans are received, particularly those received before 1 July 2017. This will minimise the risk of pre-1 July 2017 donations and loans being published in error.
Articles 10 and 11 ensure that the current verification steps undertaken by the commission to verify Northern Ireland donations and loans will continue to apply to Northern Ireland donations and loans received on or after 1 July 2017.
The Political Parties, Elections and Referendums Act 2000 provides for reports to the commission to be submitted and published at different times, depending on whether the recipient is a political party or a regulated donee or participant. Article 12 provides that the first publication of regulated donee information can take place only at the same time or after political party information has been published.
I hope that this brief summary of the provisions of the order has been helpful and not too confusing.
The Electoral Commission will have responsibility for implementing the arrangements set out in the order. Your Lordships will want to be assured that the Government have fulfilled their statutory obligation to consult the commission in respect of the order, and I would like to place on record my thanks to the commission for its close co-operation and constructive input into the drafting process. Once again I emphasise that the Electoral Commission has made it perfectly clear in its public statements that it fully supports the order and is keen to see it in force as soon as possible.
In summary, there remains widespread support for full transparency among the people of Northern Ireland. There has been a welcome recognition by the political parties of the importance of transparency to the broader political process, and the Electoral Commission has placed on record its support for this order. While there is much work to be done in re-establishing the Executive in Northern Ireland, I hope that this order will help strengthen confidence in and support for the democratic process of Northern Ireland more generally. I hope that noble Lords will support the order. I commend it to the House and I beg to move.
Amendment to the Motion
Baroness Suttie
At end insert “but this House regrets that the draft Order does not provide for transparency of political donations in Northern Ireland dating back to 1 January 2014 as provided for in the Northern Ireland (Miscellaneous Provisions) Act 2014, thereby preventing proper scrutiny of donations to political parties in Northern Ireland during the European Union referendum campaign.”
Baroness Suttie (LD)
My Lords, I would like to thank the Minister for that very detailed and at times complex explanation. I would like to make it clear that we welcome this order as a first and long overdue step towards greater transparency of donations and loans given to political parties in Northern Ireland. As the Minister has said, subject to the order coming into force, for the first time the Electoral Commission will be allowed to publish information about loans and donations given to Northern Ireland political parties dating back to July 2017. This step towards bringing Northern Ireland in line with the transparency provisions in the rest of the United Kingdom is to be welcomed. However, it is deeply to be regretted that the order is not backdated to 2014, as the Northern Ireland (Miscellaneous Provisions) Act 2014 allowed. That is why we have tabled this amendment today.
The 2014 Act anticipated that the names of donors to political parties in Northern Ireland could be made public dating from January 2014. We have to ask two fundamental questions. Why has it taken so long to bring forward these proposals? Why have the Government chosen to backdate them to July 2017, rather than January 2014?
I should pay tribute at this point to the former MP for Belfast East, Naomi Long, now leader of the Alliance Party, for her tireless work in campaigning for greater transparency of political funding in Northern Ireland. It was her amendment to the 2014 Act that has allowed full transparency dating back to January 2014. It is also worth noting that in response to the tabling of this order, the Electoral Commission, in its letter of last December to the then Secretary of State for Northern Ireland, James Brokenshire, recommended that another order be brought forward to allow for full transparency dating back to January 2014, as the 2014 Act had anticipated. The Electoral Commission is already in possession of all of the relevant data to allow this.
That this order has not been backdated to 2014 is clearly of particular importance. During the three-year period in question—January 2014 to July 2017— there have been two general elections and the EU referendum campaign. It is also important because it has since come to light that a very significant donation of £425,000 was given to one political party in Northern Ireland during that referendum campaign, and it has been said that much of that donation was spent elsewhere in the United Kingdom during the campaign.
Public confidence in political parties and political campaigns is worryingly low, at a time when there are accusations of foreign interference in elections throughout the world and of dirty money in politics. Transparency is therefore more vital than ever in providing voters with trust in the democratic process.
When the Political Parties, Elections and Referendums Act was introduced in 2000, there was general acceptance that Northern Ireland should be exempted because of genuine concerns about the security and safety of individuals and potential risks to the safety of donors if their names were put in the public domain. But the 2014 Act provided for Northern Ireland to be brought more in line with the provisions for the rest of the United Kingdom, subject to the laying of the order before us today. The provision ensured that, at a point determined by the Secretary of State, any donation of more than £7,500 from a single source to a political party could be subject to publication from January 2014. It has therefore been clear to political parties in Northern Ireland since that Act that donations made after 2014 could be made public. The Electoral Commission also made this very clear in its letter to the Secretary of State for Northern Ireland in December last year.
Lord Tyler (LD)
My Lords, I am pleased to support the amendment to the Motion in the name of my noble friend Lady Suttie. However, before I give my detailed reasons for so doing, I want to touch on the role and responsibilities of your Lordships’ House in matters of this sort.
Last night, in concluding the debate on an amendment relating to Europe’s foreign and security policy, my noble friend Lord Wallace of Saltaire made a number of references to the present Foreign Secretary. This was especially relevant, since there had been some very instructive comparisons to previous Conservative Foreign Secretaries, including the noble Lord, Lord Carrington, and Douglas Hurd and Geoffrey Howe, as they then were. There was an especially trenchant speech along these lines by the noble Viscount, Lord Hailsham, himself a former Foreign Office Minister, to which the noble Baroness answering for the Government failed completely to reply—perhaps because his case was unanswerable. At that point, the noble Earl, Lord Howe, intervened to say:
“I think it is against the rules and the spirit of this Chamber to criticise a Member of another place by name. I hope that the noble Lord will see fit to moderate his comments accordingly”.—[Official Report, 26/2/18; col. 508.]
Like many others in the Chamber, at that moment I was so stunned by this suggested new rule that I did not have time to consult the Companion, although I did have my copy with me. However, I have since read it very carefully and I simply do not understand what the noble Earl was saying. I mentioned to his office that I was going to raise this issue this afternoon because it is relevant to all the business of your Lordships’ House. I have checked the Companion today and, frankly, I do not understand what exactly it was that caused such concern to the noble Earl. As my noble friend referred only to the Foreign Secretary by his correct ministerial title—not by his name—I do not understand what the noble Earl was alluding to. This is a key issue for the way in which we do business in this Chamber. If we are not free to criticise a Minister and his or her words in their ministerial capacity, then clearly that restricts and constrains the work of your Lordships’ House. I hope the noble Earl will reconsider that statement. In the meantime, I believe that I am at liberty to criticise the Government—and hence, individual Ministers speaking and acting on their behalf—in relation to this order.
My noble friend Lady Suttie has fully explained the origins and circumstances of the order. At its heart there is a continuing suspicion of serious political money laundering. The basic facts are not in dispute. The DUP received a sum approaching £500,000 from an undisclosed source for its campaign in the 2016 EU referendum. Despite supporting leave while the majority in Northern Ireland supported remain, the DUP chose to spend £425,000 on paying for wraparounds for the Metro newspaper, which does not circulate in Northern Ireland. Exclusively, therefore, that was targeted at electors on this side of the Irish Sea.
I have a few specific questions for the Minister to underline and supplement those that have already been posed by my noble friend Lady Suttie. First, why was the order not brought forward, at the very latest, in the last Parliament? As we have heard, it was anticipated that the transparency provisions could be extended to Northern Ireland at any time after January 2014 under the 2014 Act. This was the firm intention of the then Alliance MP, Naomi Long, at that time. Why the delay?
Secondly, was it a coincidence that the ministerial decision to restrict the retrospectivity to carefully avoid any reference to the transaction to which I have just referred came just a few days after the Government had to pay a price for DUP support in the Commons having lost its majority in the summer of 2017? What representations did the DUP make about timing? Was that part of the deal? Having accepted the retrospective application of this order, albeit by only a few days, surely the Secretary of State should at least have been prepared to explain why that retrospectivity could not have been extended that bit further on the lines that my noble friend has said. His letter to MPs of 6 July 2017 sidesteps that issue.
Was the Secretary of State briefed on the potentially illegal donation involved? Had any checks been undertaken at that stage as to whether it had been made through any intermediary—perhaps by a foreign agent? We now know that the Russians took a considerable interest in the outcome of our referendum. Perhaps it was Russian money being channelled by this means and covered by the particular process that was used. Was the Foreign Office consulted on this potential interference in UK politics? Has it been since?
What detailed analysis and recommendations have any Ministers received from the Electoral Commission on this episode? Has not the Northern Ireland commission head argued for the transparency to go back to 2014? The outgoing head of that commission has stated that:
“The deal on party0 donations and loans must be part of the DUP-Conservative deal. No other explanation”.
“Every party in Northern Ireland understood that the publication of political donations over £7,500 was to be retrospective to Jan 2014”—
as my noble friend has already emphasised.
Meanwhile, have not all the Northern Ireland parties, including the UUP but not the DUP, now confirmed that they would be happy for retrospection to go back to the originally planned date in 2014? The Minister and my noble friend have mentioned the possibility of further action to undertake this reform. When will we see that, because surely there need be no delay? It is a simple matter.
Finally, has the DUP privately informed the Secretary of State or the Electoral Commission who the original donor was? What was the source of that very considerable sum? Are the Secretary of State and the commission both fully satisfied that the donation was legal under the PPER Act 2000?
If any Members of your Lordships’ House doubt the public significance of this order and think that it is just technical, let me read, from the excellent advice provided by our Library, this list of relevant publicity. I will take only a few examples but there are plenty here: the Belfast Telegraph article of March 2017, “End the secrecy over political donations in Northern Ireland”; Julia Paul’s article of June 2017, “Bringing Northern Ireland’s political process in line with the UK”; the BBC News articles, “Political donations: NI Secretary to address transparency issue” and “Donations to Stormont parties to be published”; the Open Democracy articles from October 2017, “The ‘dark money’ that paid for Brexit” and “UK Government set to ignore Northern Ireland parties’ transparency calls”; the Open Democracy article from 19 December 2017, “Why is Theresa May protecting the DUP’s dirty little (Brexit) secret?”—that of course was while the House of Commons committee was looking at this issue; the Belfast Telegraph article on 19 December 2017, “DUP calls for foreign donations to Sinn Fein to be made public”—the DUP seems to be selective in terms of what transparency it supports, although it seems to be okay to demand it of Sinn Fein, which is somewhat ironic in the circumstances when the DUP has defended its own secrecy; and the Guardian article of 19 December, “Labour criticises move to let past donations to DUP stay hidden”.
These are serious concerns and issues that do not touch only on Northern Ireland. As my noble friend Lady Suttie has said, the integrity of our whole democratic system is involved in this issue. It was the subject of some debate in your Lordships’ House, including on my Private Member’s Bill on the issue of money and its power in British politics.
Unsurprisingly, the members of the Delegated Legislation Committee in the other place took this order very seriously indeed, and allowed it through by only nine votes to eight on 19 December last, under government pressure. I suggest that we, too, should take it very seriously indeed and demand answers to these questions from the Government.
Lord Browne of Belmont (DUP)
My Lords, I rise to support this order, which I firmly believe will provide a framework of openness and transparency in relation to donations and loans to political parties in Northern Ireland. Given the improved security situation, it is now the right time to bring Northern Ireland legislation in this field into line with that in the rest of the United Kingdom.
As we have heard, the Secretary of State for Northern Ireland sought the views of all the local political parties in January 2017, and there was general support for full transparency. At the time, only one party suggested that the implementation of the new rules should be back dated to January 2014. However, in recent months there has been considerable debate in the other place concerning this date, and the amendment tabled by the noble Baroness, Lady Suttie, supports retrospective implementation backdated to 2014. I acknowledge that this earlier date was referred to in the Northern Ireland (Miscellaneous Provisions) Act 2014, but in my view retrospective legislation is acceptable only in exceptional circumstances. It is simply not fair to reveal the identities of those who made donations on the assumption that the law as it stood at the time would apply.
Several critical comments have been made in the debate concerning the donation which the Democratic Unionist Party received during the 2016 European Union referendum campaign from the Constitutional Research Council. I would simply point out that the donation was declared and the name of the organisation was provided. The uses to which the money was put were fully disclosed to the Electoral Commission, which accepted the bona fides of the council.
I recognise that current UK legislation relating to donations by and to political pressure groups is perhaps inadequate in some respects. I am sure that we are all aware of the recent controversy concerning the large donation to the political pressure group Best for Britain by the Open Society Foundation. However, this is perhaps a matter for consideration by the House at a later date.
In concluding, may I ask the Minister for clarification regarding the treatment of foreign donations to Northern Ireland political parties? As noble Lords will be aware, foreign donations to UK political parties are prohibited under the Political Parties, Elections and Referendums Act 2000, but donations and loans from certain Irish citizens and bodies to Northern Ireland recipients are excluded from these provisions. This order now provides that certain sensitive personal information relating to these persons and bodies will not be published by the Electoral Commission. Will the Minister confirm that all the transparency requirements, including personal identification, that will apply to United Kingdom donors will also apply to Irish donors? I am pleased to support this order.
Lord Bew (CB)
My Lords, I thank the Minister for his statement today and express my support for this proposed legislation. I declare my interest as chairman of the Committee on Standards in Public Life. In our fifth report, on The Funding of Political Parties in the United Kingdom in 1998, in our 13th report of 2011 and in a statement in April 2014, we called for the changes that the Government are finally bringing about.
From the point of view of transparency in our electoral law, this is a wise move: whether it has been delayed too long because of exaggerated fears about violence, I am not quite sure. It is useful to remember that, although at times we now hear people claiming that the peace process is on the verge of collapse, we all seem confident enough to do this, which would suggest that, whatever the tensions that arise out of Brexit, the peace process might not actually be on the verge of collapse.
I have one issue to raise that has already been alluded to by the noble Lords, Lord Tyler and Lord Browne of Belmont, and that is the issue of foreign donations. The truth of the matter is that our electoral law does not only impose a demand for transparency—and on this, we are now bringing Northern Ireland into line with the rest of the United Kingdom—but is opposed to foreign donations in principle, and we are bending it radically here. The Minister used the laconic phrase, “certain Irish citizens”. The point about this is that, as one of his predecessors from the Labour Party said at this Dispatch Box in the summer of 2007 in exactly this context, Ireland has a very capacious definition of its citizenry. It is a fact that you can be an Irish citizen living in New York city, having never set foot in Northern Ireland, and be contributing money under the terms of what we have agreed.
I completely understand the unease that the noble Baroness, Lady Suttie, and others have expressed about a particular donation connected to the Brexit campaign. That unease is entirely legitimate, but the truth is that it is really as nothing compared to the fact that we now have a situation in which the Government might conceivably fall, if the seven Sinn Féin Members turn up in Parliament, because of the votes of MPs who were elected with money from foreign sources. This is obviously a rather larger problem looming on the horizon. That is worth alluding to, because the reason why we have not in recent years—in both Houses of Parliament—been too concerned over this breaching of the principle on foreign donations has been to do with the fact that the Members of Parliament concerned do not actually turn up. We cannot assume that this will carry on for ever, and I think it is very unlikely that it will carry on for ever.
There are two problems: it is not only the Brexit donation. There is a point on the other side of the ledger, which is likely to be considerably more important and sensitive in the future. Can the Minister respond on what he means by “certain Irish citizens”? I accept that he has explained the terms under which they would give, but are we still in the framework, as the noble Lord, Lord Rooker, said 10 and a half years ago, of the capacious definition of Irish citizenship? If so, this is foreign donation in the normal sense that our law disapproves of strongly.
Although this is not a happy circumstance, the Government are right to, as it were, look the other way and tolerate it. We are in a very difficult moment with Brexit. There is great sensitivity among Irish nationalists that the balance of identity has been shifted against them in certain ways. I regard some of those fears as exaggerated, but it does not really matter; that is what is in their mind. The Government are quite right as part of their acknowledgement of the nationalist identity in Northern Ireland to leave the door open for certain Irish citizens to donate. However, they should say, “We are doing something quite remarkable here. We shouldn’t just stick it away in a corner. We are doing our best to be fair across the border in Northern Ireland and we are taking a bit of a risk which could be highly controversial. We are doing it because of our commitment to equality of esteem within Northern Ireland”. If one is going to make a concession at this point, there is no point in hiding it away; one might as well openly declare that the Government are doing something generous, risky and, in my opinion, absolutely right. However, they should say, “This is a broad-minded move on our part”.
Baroness Harris of Richmond (LD)
My Lords, as we have heard, the draft order provides for the full publication of donations and loans received after 1 July 2017, which is the bone of contention that we have with it. I absolutely agreed with my noble friends Lady Suttie and Lord Tyler, who outlined the problem so clearly.
All have to abide by the rules that govern information on political donations and loans in the rest of the UK, so Northern Ireland—which is still part of the UK, is it not?—must now abide by the same rules as everyone else. We are all obliged to publish such donations quarterly, so it is now time for Northern Ireland to do the same.
The real problem, of course, is when the measure should be imposed. The confidentiality clauses, arising out of fears of intimidation of donors, were always considered to be a temporary measure, and we can see that the people of Northern Ireland have always wanted transparency in this matter—but it appears that the two main political parties have felt otherwise.
In January 2017, all parties agreed to this measure. On these Benches, we have spoken many times—and certainly for as long as I have been a Member of this House and speaking on Northern Ireland matters; I am in my 19th year—about transparency being essential at the earliest possible time. It took a member of the Alliance Party in Northern Ireland, the former MLA for Belfast East, Naomi Long, to remove some of the severe restrictions about disclosure in 2014, in the Northern Ireland (Miscellaneous Provisions) Act, where the Secretary of State had the power to give the Electoral Commission permission to publish the details of individual donors if he or she felt it expedient to do so.
So it is safe to say that the Alliance Party has urged transparency for many years. I well remember dealing with legislation coming out of the Belfast agreement where these Benches echoed those views—but to no avail until now. I hope that it is accepted that all political parties in Northern Ireland now see the importance of transparency rather than using the old arguments against it.
This order, however, should be backdated to 2014, especially as we see the incredible lack of progress on any matters dealing with Northern Ireland. I am afraid that the DUP, in particular, cannot have it both ways: being a part of the UK but not wishing to abide by any laws that do not suit its particular brand of politics. When it suits the DUP to receive a huge donation of money—which, we understand, was not used in Northern Ireland during the referendum campaign —but not to have the legislation applied to a time before it accepted that donation, it is time to ask why the Government went along with this shabby and entirely political manoeuvre in allowing a later date for the order to be implemented. So will the Minister answer the questions from my noble friends Lady Suttie and Lord Tyler about when the Government intend to bring in the further legislation which will backdate this order to 2014, as strongly recommended by the Electoral Commission? We should be told.
Lord Murphy of Torfaen (Lab)
My Lords, this has been a fascinating if rather short debate on an important subject. I recall that about 21 years ago, the Chief Electoral Officer for Northern Ireland visited me in my ministerial office with a suitcase. In the suitcase were about 300 to 400 fraudulent ballot papers. I suddenly realised that things were a bit different in Northern Ireland from my constituency in south Wales. They were of course impersonated ballot papers and I often wondered whether they resulted from intimidation. It is quite possible that they did. The reason why the transparency laws in Northern Ireland have not always coincided with those in the rest of the United Kingdom is precisely because of intimidation. For example, if people wanted to donate to this or that party and it was made public, they could well face intimidation. That was wrong and therefore it inevitably took some time for it to change over the last two decades.
I certainly welcome the order; it is a step in the right direction to normalcy in Northern Ireland. But I see the points that the noble Baroness, Lady Suttie, and the noble Lord, Lord Tyler, made with regard to the donation by a particular body—I think it was in Scotland—to the DUP with regard to the European Union referendum. I understand that a lot of that money was used in Northern Ireland and in London; but it did not do much good, because in both those places people voted to remain in overwhelming numbers. Nevertheless, that rather bizarre and controversial donation is an important issue. It was aired very widely in the debate in the other place by my honourable friend Owen Smith and others, and of course it has been aired here. So the idea that the donation has somehow or other not been debated is wrong; it is being debated today and has been debated in the House of Commons as well.
But—and this is an important but—the Electoral Commission has indicated in response to this legislation, which of course it supports, that the Government should bring in another order that would reflect on the situation and go back to 2014. The Minister has rightly told the House that when the political parties were asked about whether the provision should be retrospective, with the exception of the Alliance party they said, “No, it should not be”. They had reasons for that, which again probably relate to intimidation and such factors—but there is a case for the Government to take seriously the Electoral Commission’s recommendation and consult again the political parties in Northern Ireland as to whether it should be backdated. That should not mean that the order should be held up; it should not.
I also take the point made by the noble Lord, Lord Bew, with regard to donations from Irish citizens and various bodies on the island of Ireland. This reflects the different situation in Northern Ireland from the rest of the United Kingdom—of course it does. There are obviously people in Northern Ireland who regard themselves as Irish and not British, and people who regard themselves as British and not Irish. Donations from Irish citizens and bodies to political parties in Northern Ireland therefore are and have been acceptable, but they have to lie properly alongside Parliament’s view that foreign donations in general should not be allowed. But I do not think you can disallow Irish citizens—as long as, again, there is an element of transparency in all this.
I hope that we will agree to the order going through, but I also ask the Minister to reflect on the commission’s recommendation on retrospection. This is part of the journey towards reconciliation and the establishment of the institutions in Northern Ireland. This is set against the background of where we are at the moment—which is, frankly, disastrous. We do not want direct rule in Northern Ireland; we want the restitution of the Assembly and of the Executive. This order helps towards that.
Lord Duncan of Springbank
My Lords, I thank your Lordships for their wide-ranging contributions to the discussion this afternoon. I begin by thanking noble Lords for the support for the order before us, which will establish transparency from 1 July 2017. I believe we all welcome that particular feature—we can agree on that part.
I will address the question of backdating head-on. When the then Secretary of State consulted the political parties in Northern Ireland, he asked them when they wished the order to commence. In response, the parties themselves were quite explicit. The Alliance Party, as we have heard, wished to see the order backdated to 1 January. The DUP and the UUP both explicitly wanted it to be a forward order from the point at which it was agreed in 2017. The SDLP and Sinn Fein did not address this specific question in their responses. It is important also to stress that since that consultation, we have received no further update from those main political parties on the backdating question. I put that as a matter of record.
On the issue raised by the noble Lord, Lord Tyler, many of these questions cannot have been germane to the decisions of last year, for one very simple reason. Although the Electoral Commission was gathering the data at the point, it was not able—indeed, it would have been illegal—to release that data to the United Kingdom Government, whichever party held office. It could not therefore have been part of those ongoing discussions. We have heard at least one noble Lord today make reference to the details of that donation, and that is now a matter of public record. But it is a matter of public record as a consequence of other elements, not of its registration during the electoral gathering of data. It is important to stress that. That is why many of the questions raised by the noble Lord, Lord Tyler, fall at that point.
It is important again to recognise that we have an opportunity here in looking at establishing transparency. Right now, we are not ruling out the re-examination of the period that precedes 1 July 2017. Indeed, the draft order will allow consideration of it, once we have had an opportunity both to bed in the transparency order and to examine the details reflected therein. We will not rule anything in or out on that point. I stress that. It is important that we recognise it.
It is also important to recognise that the data has been gathered from that period in 2014—the data exists. Those who believe that it will be for ever concealed need fear nothing; there is nothing to be seen here and we can move along. In truth, that data will remain there. If it is determined that we should examine that in greater detail going forward, there is an opportunity for us to revisit this item. We should not lose sight of that fact.
As for the donations and loans that come into Northern Ireland from outside, from the southern part of the island of Ireland, I assure both the noble Lords, Lord Browne and Lord Bew, that there will be full transparency of those donations and loans. There must be—there can be nothing but that. That is why, again in relation to Irish citizens, the prescribed condition is that at the time of making a donation to a Northern Ireland recipient, the individual must be eligible to obtain one of the following documents: an Irish passport, a certificate of nationality or a certificate of naturalisation. There will be a full gathering of all the data of moneys coming into the electoral process in Northern Ireland. It is important that we recognise what that means.
Lord Kilclooney (CB)
We just heard a definition of “certain Irish citizens”. Does that definition apply to Irish citizens in the United States of America? Let us be fair, when the IRA was active, it was not the southern Irish who gave it the most finance; Irish citizens in the United States of America were the major financers of the IRA terrorist regime. I hope that such people in the United States will not be able to finance elections in Northern Ireland.
Lord Duncan of Springbank
I thank the noble Lord, Lord Kilclooney, for his intervention. Again, I stress this point. As a frequent visitor to North America, I have discovered many people who invoke their affinity to the homeland. I have met many Scots—who may indeed be fourth or fifth-generation Scots—who proudly wear their tartan as frequently as they possibly can. I do not fault that; I celebrate it. That is true for citizens of whichever homeland might be in question.
However, in terms of their rights and abilities to donate money to Northern Ireland, they must hold a valid Irish passport—not an Irish passport held by their grandparents, which might entitle them to play for Ireland—or a certificate of nationality or naturalisation. The order does not allow someone simply to invoke Irish heritage to be able to donate. One would hope that the transparency revealed by the order will help us to be attentive to the risks raised by the noble Lord, Lord Kilclooney. If any failings become apparent as the data is gathered, the Electoral Commission will be able to draw those to our attention and they can be examined in the cold, hard light of day. That will be very important.
The noble Lord, Lord Murphy, made a number of important context-setting remarks, which I endorse. We are at a delicate time and there is no better time for transparency than right now. There should be no escape from that transparency. As many noble Lords have heard me say more than once, we need to establish a sustainable Executive in Northern Ireland. I believe that the order will go some way to ensuring that the people of Northern Ireland have the utmost confidence in the electoral process. The order is right and timely.
I recognise that the issue of backdating will remain sensitive. If, on consideration of the data as it is gathered, ascertained and seen, there are deemed to be issues that need to be examined further, the Government will consider them at that point. We are ruling nothing in and nothing out. On that basis, I commend the order to the House.
Baroness Suttie
My Lords, I thank all noble Lords who have taken part in this short, but extremely important and valuable, debate. I also thank the Minister for his characteristically courteous, detailed and open response.
I stress that we on these Benches will continue to press the Government to live up to their earlier commitment on backdating these provisions to 2014—I welcome some of the Minister’s comments in that regard—and to follow the advice of the Electoral Commission in bringing forward another order at the earliest convenience to make this possible. I also agree with the suggestion of the noble Lord, Lord Murphy, that, at the very least, following changes in circumstance, we should discuss again with the political parties in Northern Ireland and hear their views on backdating to 2014.
On this occasion, however, it would be inappropriate to test the opinion of the House. We do not want to see further delays to the order. I therefore beg leave to withdraw the amendment.