Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Baroness Hayter of Kentish Town Excerpts

Monday 16th December 2013 Lords Chamber

[Baroness Pitkeathley]

My Lords, I declare my interest as patron of several charities, but particularly as vice-president of Carers UK, a campaigning charity.

I have always had a lot of bafflement about the Bill. I am baffled as to why it was introduced in the first place by a Government who have always set such store by the big society, who have repeatedly assured charities of the vital place that they occupy in public service provision and, moreover, who have set such store by putting the consumer voice at the heart of policy-making.

I am baffled, too, by how the Government have spent the pause period. It was intended to enable them to listen and think again as the result of the extraordinarily negative reaction to the Bill, especially Part 2. Clearly, the Government have neither listened nor thought again. I remind them of what consultation means: it means not only listening, but acting as a result of what you have heard. It is clear from what others have said that we still have not had enough reaction from the Government. We now hear that the Government’s reaction and the actions that they propose will not be given in time for this Committee stage and perhaps not until very near Report. The provisions of the Bill, I am afraid, remain excessively broad in scope. There is too much discretion for the Electoral Commission and far too much uncertainty remains. That, as we have heard from other noble Lords, will trip up charities and stifle their voices. Why the rush for this Bill? It is clearly not yet fit for purpose.

The commission on the other hand—I pay tribute to the noble and right reverend Lord, Lord Harries, and his commission—has used the pause very effectively indeed. The result of its work is before your Lordships in the form of the excellent report and package of proposals that have been put together, which we shall debate not only in this section but elsewhere in the Bill.

So far as controlled expenditure is concerned, I will only say that it is vital that there is clarity—indeed, not just clarity but certainty—about whether and when which activities will count towards controlled expenditure. The group of amendments, particularly those of the noble and right reverend Lord, Lord Harries, and his colleagues, will go some way to addressing that issue, and I urge the Government to accept them.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I also join in wishing the absent noble Lord, Lord Wallace of Saltaire, a speedy return—not that we do not feel safe in the hands of this noble and learned Lord, Lord Wallace, but it would be nice to see them both running around again. I also declare my interest as a patron of the Blenheim Trust and trustee of the Webb Memorial Trust.

I echo the concerns expressed by a number of noble Lords about the Bill and support the thrust of their amendments, which aim to make this bad Bill a little less bad. I also want to argue that Clause 26 should not stand part of the Bill. As has been said, the Government paused, but not for long enough and, more seriously, they then did nothing. There was no consultation—which as we have just heard is about more than just listening—because whatever they heard they made no changes. Even today, after all that, we have only the promise of a review about whether the Bill is fit for purpose after we have had an election with it, and the promise of a revision of the thresholds, but without the all-important figures before us. The Government’s inaction is in stark contrast to the NCVO and the Harries commission, as my noble friend Lady Pitkeathley just said.

The NCVO heard from 140 of its members and engaged with MPs, civil society and lawyers, and, as we have heard, took evidence. It talked, it thought, it listened and responded. The Government, by contrast, refused a proper committee to take evidence but then failed to use the time to produce their own amendments. They have failed to ask for written evidence and they have failed to produce a report of what they heard.

They have still failed to believe the warnings of chill, uncertainty and criminal sanctions—warnings and concerns that the Women’s Institute, Crisis and Sense About Science have repeated just this morning despite, or perhaps because of, the meetings that they have had with Ministers. The Government have failed to listen to the Royal College of Nursing, which says that the Bill will restrict the activities of organisations that seek legitimately to influence public policy in the run-up to an election. Indeed, the nurses say that if they are curtailed from raising concerns, this may pose a risk to standards of care in the NHS. Not only did the Government not heed these warnings, they have sought to dismiss them by asking others, not themselves, to change their view of the Bill. It is really no good the Minister today, or indeed Mr Brake, telling these groups that they need not worry if their own lawyers and the Electoral Commission tell them that they may well be in scope.

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[Lord Greaves]

I have listened with great interest to the noble Baroness, but it seems that all she is doing is repeating her Second Reading speech. What we have heard about so far, and what we have down for Committee, is a whole series of amendments probing particular parts of the Bill and putting forward very constructive and, in many cases, sensible proposals to improve it. Why is the noble Baroness still making a Second Reading speech, and why has the Labour Party not put down a single constructive amendment for discussion in Committee?

[Baroness Hayter of Kentish Town]

We have a clause stand part debate and the point is to argue that this increase in scope does not belong in the Bill. That is the purpose of this, and the clause stand part debate is in our name. It is absolutely because we do not accept the enormous expansion that this clause brings in. We had expected, at this stage, because of the pause, that the Government would give an indication, even if not through amendments, of their response to the dissatisfaction at Second Reading. Our surprise is that we meet today, five weeks later, and there is not a single indication that the worries raised either by the two reports from the noble and right reverend Lord, Lord Harries, or at Second Reading, find themselves in any way reflected, given that no government amendments have been tabled for today.

[Lord Tyler]

Is the noble Baroness’s position that she wishes to leave PPERA 2000 just as it is, unamended? That is not the position of the commission of the noble and right reverend Lord, Lord Harries, or indeed of any of the organisations that I have met. It therefore seems extraordinary that she is prepared to leave that status quo in place.

[Baroness Hayter of Kentish Town]

I do not think that any one clause quite does that, but it is interesting if that is the noble Lord’s interpretation. Assuming that we take the Government’s intention as genuine—we can perhaps agree that this should just be about transparency—our view is that the extension of the scope has the unintended consequence of extending it from purely publications to an enormous range of other activities and things such as staff costs, transport and hire of halls. That fundamentally alters the position, which is what we are questioning. Is the effect of the Bill the same as the intent—transparency—or is the effect the chilling one that every charity and community group is telling us about? It feels like watching the Army march, with one young soldier out of line and his mother saying, “My son is marching properly but everyone else is out of step”. It seems that everyone who is commenting on the Bill has worries about the effect—except, of course, the Minister.

It was interesting and very noticeable that Lib Dem Members stood up when I used the words Sheffield Hallam. Can the Minister confirm my interpretation—it would also be interesting to hear from the noble Lord, Lord Tyler—on whether, had the Bill been an Act in 2010, so looking backwards rather than forwards, the NUS-Lib Dem antics over tuition fees would have been permissible? My reading is that they would not have been, that the NUS would have been caught had it spent too much. I have the feeling—and the NUS shares the figures on this—that, including events, press campaign tools, photographs, travel and related staff costs, the photos of those various Lib Dem candidates pledging not to increase tuition fees would have been caught by these rules, therefore requiring the NUS to register and account for all its costs. The interesting question is whether that would be the case.

[Lord Wallace of Tankerness]

I wonder what the noble Baroness is thinking. Activity by candidates, which is caught by other parts of the PPERA, is completely different from non-party expenditure, which is what we are debating in Part 2 of the Bill. I want to give the noble Baroness the opportunity to tell me what I may be missing, but activity by candidates seeking election is clearly political.

[Baroness Hayter of Kentish Town]

The NUS and other student groups have raised an interesting question about work done in the year before an election. Can the noble and learned Lord assure the student groups—and it is the Bangor student union that has been writing to noble Lords—that they can continue to campaign? The fact that student groups are concerned is another example of the uncertainty about this issue. It is not just charities: other groups would also need to be concerned that expenditure on a campaign like tuition fees—or the Stop the War coalition, which we knew rather a lot about—early on before a general election could fall within this. If a political party adopted what another group had been campaigning on and that became a big issue at an election—I recall that the Iraq war was such an issue—then the work done maybe 12 months before the election would be caught by this provision. If we understand it correctly—and this is why a stand part debate is absolutely right for this bit—this clause would have the effect of expanding the scope of the Bill to bring into account the cost, in that 12 months, of activities like rallies, marches, hire of transport, stewarding and all those sorts of things.

The other point I want to raise on this clause is the administrative burden brought in by the addition of these types of activities; they are separate from publications, which are relatively easy to account for. It is interesting that another part of the Government is doing a lot about getting rid of red tape at the moment. Last month, this House agreed a statutory instrument allowing small companies to no longer do full accounts if they do not exceed two of either: gross assets of over one-third of a million pounds, a turnover of over two-thirds of a million pounds or an average of 10 employees. That will not apply to charities, which are excluded, but it will exempt other small groups from having to do full accounts. However, those exact same groups, having been relieved by BIS from all that red tape, will, because of the extended activities related to the items included in this clause, have to go through an enormous, complicated, bureaucratic form-filling process.

This is not about taking the big money out of politics. These groups are not about getting elected. They are about giving a voice to the unrepresented and the unheard. They are a key part of our democracy and perhaps that is what the Government do not like. They have not responded to the concerns of these groups. The Electoral Commission—the Government’s own adviser—says:

“Because the Bill brings some kinds of activity into the regime for the first time, we have said to the Government that the wording that defines controlled spending needs close consideration and scrutiny … to assess the cumulative impact … on campaigners, taking into account … the scope of controlled spending … lower thresholds”,

which we will come to, “lower spending limits”, which we will come to,

“new limits on spending in constituencies”,

which we will come to, and, “concerns about administrative burdens”. We will come on to these points, but they all flow from this clause, which extends the scope. The Electoral Commission urged the Government to think very carefully about the wording. As we have heard from the noble and learned Lord, Lord Hardie, those concerns remain or he would not have moved his amendment.

I am sorry that some noble Lords seem to think that this is a Second Reading issue. To me, this is a part of Committee, a way of saying to the Government that if what they intend is transparency and this Bill fails to produce it but instead produces unintended consequences of fear, of people not campaigning when they want to, surely this is the point for us to say to the Government that the wording of this clause is not good enough. The Government should both explain why they have failed to find a solution to the concerns that were raised at Second Reading and give a reason to the House why this clause should stand part of the Bill.

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[Lord Wallace of Tankerness]

That reflects some of the amendments tabled by my noble friend Lord Tyler, to which the noble and right reverend Lord, Lord Harries, lent his support. We are grappling with real issues here as to the clarity or otherwise of when people will cross a line. I accept that there are some cases which are quite clearly on one side of the line and others that are nearer the margins. The noble Baroness, Lady Hayter, said that some people had been advised by the Electoral Commission that what they were proposing to do would be regulated. I would say to them, “Take the advice of the Electoral Commission. If it says you should be regulated, then register”. There is nothing stopping people campaigning. In fact, they might campaign with a lot more confidence if they know that they are doing the right thing because they have taken the advice of the Electoral Commission.

[Baroness Hayter of Kentish Town]

I dread going on to other clauses, because I am going to get told off, but this is rather important. Registration is a threat to many of these organisations. They do not have the staff to fill in the forms. Charities are worried that by being registered with the Electoral Commission rather than the Charity Commission, it will look as if they are political because of the word. The bureaucracy of it frightens them. Some organisations will be responsible for 15 or 20 local groups. They will get caught by coalition funding. The Minister says, “Let them register”. The problem is, that in itself is a threat. Maybe he has misunderstood the threat of registration to these organisations.

[Lord Wallace of Tankerness]

My Lords, I do not think that I have, because I indicated that one of the concerns we have is the potential chilling effect. I am trying to make it clear that the threat is not that they cannot campaign at all. I regret sometimes the language used. It may be inadvertent, but the problem is that if we as politicians dealing with the Bill say that people will not be allowed to campaign on certain issues, it will be picked up outside and people will believe that they might not be allowed to campaign on certain issues. I hear what the noble Baroness says about the threat. I do not believe that registration is necessarily a threat. It is part of trying to secure transparency, as my noble friend Lord Tyler said. It is trying to secure the right balance, because the more transparency you have, the more likely it is that you will have more regulation. We are doing an important task as a Committee, which is to put up issues to make sure that we try to achieve the right balance.

In relation to other amendments, my noble friend Lord Greaves sought to exempt activities relating to research, press conferences, meetings and the lobbying of government and other legislative bodies. Again, the same explanation applies. The day-to-day activities of third parties, including working with legislative bodies across the United Kingdom, is not, and under the Bill would not be, subject to regulation under PPERA. Only activities which a reasonable person would regard as intended to promote or procure electoral success are captured.

Amendment 159D is about the same issue: issues being debated in another legislature. In the European election, the European Parliament cannot determine whether Britain continues its membership of the European Union, but it is not impossible—it does not need too much imagination—to think that it might be what third parties might be campaigning on in the forthcoming European elections. If that is what they are campaigning on to promote one party over another, it is not unreasonable, if they meet the thresholds, to require them to register.

The noble Lord, Lord Walton, talked about the all-party groups and the important work that was done in relation to muscular dystrophy. I understood him to ask whether the charities that support those groups with staff will be covered. It is difficult to see how the work of all-party groups—he knows this, as he showed in his remarks—could be caught or how the groups could be promoting electoral success in the reports they produce. However, the difference might be if one of the charitable bodies that had been supporting the all-party group were to turn around and say, “We helped produce this report. Member X and Member Y are really good people and people should go out and support them”. I am not suggesting for one minute that they would do that, as charity law might make it very difficult for them, but that would be trying to procure an election result and so on. Simply supporting an all-party group doing the very valuable work that the all-party groups do could not be seen as promoting a particular—