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

Baroness Mallalieu Excerpts

Monday 16th December 2013 Lords Chamber

[Baroness Mallalieu (Lab)]

My Lords, I take issue with one or two of the matters that the noble Lord, Lord Phillips, has just raised. The commission came to the view that there should be no exemption for charities and that was based squarely on the evidence that we heard. As everyone else is doing so, perhaps I should make a full declaration of my involvement with various campaigning organisations. I am president of the Countryside Alliance and president of the Horse Trust; one is a charity and one is not. I am a member of the National Trust, the RSPCA and the Humane Slaughter Association and I am a supporter—whatever that may mean at the end of this Bill’s progress—of the Stop HS2 campaign. There may be others, but I cannot, at the moment, remember them.

[Lord Phillips of Sudbury]

I am so sorry to interrupt the noble Baroness so early in her speech, but it is directly germane to her first point. I think she said that the Charity Commission came to the conclusion that charities should not be exempt.

[Baroness Mallalieu]

I was not referring to the Charity Commission; I was referring to commission of the noble and right reverend Lord, Lord Harries. I am afraid this had led to some confusion. I noticed someone else fell into the same error. If I did, I apologise. Except for those who have put their names to the amendment on the Marshalled List—and no doubt there will be others who will speak—I am not aware of anyone among those to whom we have already spoken, who shares the view of the noble Lord, Lord Phillips. Not one of the charities which came and gave evidence before us asked for there to be an exemption. Nor, as far as I am aware, does the Electoral Commission suggest that it is a good idea. I am not certain about the view of the Charity Commission, but my understanding is that it does not seek it either. As I understand it, this is because it is generally felt that transparency in the way people campaign during elections should run right across the board, for charitable and non-charitable campaigners. The spending limits, which are a key difference, should be the same across the board. No charity asked to be exempt, but we did hear evidence from some which felt that, if they were exempted, some charities would bring others into disrepute, and that it was a possible route for avoidance.

The argument of the noble Lord, Lord Phillips, is predicated, I think, on a belief that the guidance given by the Charity Commission at present works well—and he knows a great deal more about charity law than I do. That was not entirely my understanding of the evidence that we heard, and there has been concern that it has not always been rigorously enforced in this area. It is, perhaps, not surprising, given the number of registered charities. I think there are something like 130,000; he will know the figure better than I do. Indeed, there have been a number of public complaints about charities and how they have campaigned recently. It was for that reason particularly that I drew attention to my involvement with the Countryside Alliance.

It seems to me that there must be equality across the board, not only with obvious transparency, but with the way in which people are permitted to campaign. If the situation were—as the noble Lord, Lord Phillips, would wish it—that non-charities continued to be regulated under the Bill as amended and charities were removed, there could be two organisations campaigning on precisely the same issue, but bound in different ways by different forms of regulation. There could be an argument during an election period, for example on hunting, which has already raised its head a number of times in this debate. This would have the Countryside Alliance as a non-charity, restricted in a variety of ways, required probably to register as a result of whatever the new limits might be, to observe strict spending limits, and with no regulatory burden. Whereas the League Against Cruel Sports, which is a charity, would have no spending limits and would not have to put in the sort of rather onerous reports that are required otherwise. This is a cross-party issue which is seen by some as being politicised. There may well be complaints about it.

My noble friend Lord Gardiner—I call him my noble friend even though he sits opposite because he is from the “barricades” days—has tried to reassure us that the Countryside Alliance would not be caught by this measure. However, I am not so sure. We wait for that matter to be tested or, I hope, clarified as the Bill progresses. The noble Lord, Lord Phillips, says that it is wrong for one body to be doubly regulated, but he is overlooking the fact that charities are in a privileged position in many ways. They have a great many advantages and it is right that they should be regulated not just during election periods but all the time so that they do not infringe the rules. As I say, whether that is enforced is a matter of considerable controversy. Surely the Bill is about the transparency of those engaged in campaigning at election times. It is not a Bill about charities—that is something quite separate. There should be a level playing field and the public should be entitled to know what is being spent and by whom, whether the body in question is a charity or not. Therefore, although I have enormous sympathy with what the noble Lord says, and I share his concern that charities are very worried about the Bill, so are NGOs, and for precisely the same reasons.

[Lord Phillips of Sudbury]

The noble Baroness refers to a level playing field between charities and non-charity NGOs. However, there is no level playing field because non-charity NGOs can politick any way they like until the cows come home, whereas charities cannot.

[Baroness Mallalieu]

The noble Lord is correct on the face of it but, in reality, when one looks at some of the forms of campaigning that have taken place in recent years, it is very difficult to discern a difference between the two. The two organisations to which I referred earlier are a case in point. If the charity guidance—CC9—and the appendix to which the noble Lord referred were enforced rigorously, and the Charity Commission had the means to do that, perhaps I would take a different view. However, given that the Charity Commission cannot possibly have a handle on 130,000 charities during an election period, it seems to me important that there should be one rule that applies to all.

[Baroness Williams of Crosby (LD)]

My Lords, my name is also added to this amendment. I should like to say a few words not as a lawyer but as a politician. In my rather long political life, I have fought at least 11 general elections and two by-elections, and have lost some and won some. It is worth commenting as a politician in this very good debate, which has been rather dominated by lawyers, if noble Lords will forgive my saying so.

I think that a very simple message is coming out of this discussion. I thank the Government for permitting a consultation period. I quite agree that it is not as long as it should be, but it is worth recognising that this is a very useful innovation in this House, and one that I think will be helpful to us as we work our way through increasingly complex legislation, given that that is the nature of so much legislation nowadays.

Unfortunately, the Bill is largely concerned with amending the 2000 Act, which means that it is incredibly complicated. It keeps referring back to earlier legislation when it might have been better to make a clean break and have a completely new Bill. That is by the way and we have what we have, but I think it is one of the reasons why two issues have emerged very clearly in this debate—I speak as I see. First, virtually every amendment—amendment after amendment—has sought to exempt various bodies from the controls on the amount of expenditure that is incurred. Virtually every one of the many amendments that we have discussed has sought to eliminate or take out something or other. They have all been negative amendments and have attempted to detract from the Bill’s impact on charities. That is not a desirable way of looking at a Bill. What it adds up to is that this is a Bill which has overwhelmingly caused such concern, worry and anxiety that it cannot stand as it is without huge amendment, or possibly a complete rewriting of Part 2. I favour the second.

The other thing that emerges very clearly from this is that the Ministers—I greatly respect their patience and their attempts to deal with the issues—have turned effectively into a sort of CAB. Everybody who gets up says, “Does this apply to me, or to this, or to the other thing?”. That is not a very happy way of demonstrating how clear and transparent the Bill is. It is a very happy way of demonstrating that it is neither clear nor transparent. This again means that there has to be a major look at how to reconstruct this part of the Bill.

I add one other thing. I say this in some criticism of the commission, which has been so widely praised, quite rightly, in this House. The commission has not taken sufficient cognisance of—I refer back to the brief speech made by my noble friend Lord Greaves—the impact of certain kinds of expenditure on campaigning, not least major expenditure on campaigning, on the whole issue of the cleanliness and transparency of politics itself.

We have blissfully walked past substantial evidence to show that, without some form of serious regulation of charities, but also of NGOs, there is a tendency for politics to become increasingly corrupted by the flow of money. The noble Baroness, Lady Mallalieu, for whose intelligence I have the greatest respect, unwisely referred to the likelihood of some monster coming out of the jungle who would be a billionaire. There are many monsters who are billionaires coming out of the jungle. I know that because I taught the subject of elective politics for 10 years at Harvard.

The United States has effectively been taken over at the federal level by more and more major expenditure. For example, expenditure on congressional elections in real terms has gone up two and a half times since 1998. In the latest election cycle, in 2012, no less than $3.5 billion was spent on electing Congressmen and Senators to their elective seats. To take another example; it costs today, on the latest explanation we have, $1.5 million to elect a Congressman. Congressional districts are of course larger than parliamentary constituencies—let us say three or four times larger. However, when you compare the £12,000, which is still the British limit that can be spent within a constituency once an election has been declared, with $1.5 million, even if you take real values and all the rest of it into account, you are looking at a vast increase in the expenditure on how you can get legislation through Congress. A great deal of it is quite directly and precisely related to politics in its most raw sense, including the money that comes out of the so-called 501(c)4 regulations of the Internal Revenue Service—the tax system—which now allows specifically non-profit third parties to put money into election support and political payments. Let us not forget that the legislation picks out non-profit, picks out non-party and picks out bodies with claims that they are pushing a charitable end, or in some cases a public service end. The outcome is quite simply that this particular element in public expenditure in the United States has risen from $9 million two years ago in 2010 to $457 million in 2012. That is an increase of the order of something like 45 times. Why? The regulations that applied to restriction on public expenditure of this kind by non-profit organisations were effectively allowed to lapse with the result of the so-called Citizens United Supreme Court decision of 2010, whereby corporations and unions were both allowed to come into that structure and give whatever they liked with no limit for political campaigns.

What I see in the United States at the federal level is effectively the breakdown of democracy. It is not surprising that more than half of Senators are millionaires or richer because, effectively, the ordinary man and woman have been driven out of politics at a federal level and it is too expensive for them to stand because the money that they have to raise to stand any chance of getting elected is now so extreme. I will not go on but the figures are terrifying. The estimated spending for the next presidential election in 2016 is around $6 billion at the federal level only. What one is seeing is a great democracy gradually turning into a plutocracy, and that is extremely dangerous.