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

Baroness Pitkeathley Excerpts

Wednesday 18th December 2013 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I have added my name to the amendment. I have done so in relation to the organisations involved with the criminal justice system that I have mentioned before. I refer in particular to the two initiatives being driven at the moment by the Secretary of State for Justice. One is Transforming Rehabilitation, which involves establishing new partnerships working with prisons. The other is the transforming of the probation service, which involves setting up community rehabilitation companies. These consist of a mixture of private companies, charities and other non-voluntary organisations.

They are being encouraged to do this and to do it on a payment-by-results basis. The results are not yet clear. It should be borne in mind that 50% of the rehabilitation work in prisons today is done by voluntary organisations, many of which are very small. Have the possible implications of them joining in coalition with larger organisations that may well fall into the catch of this amendment been explained to the Ministry of Justice and does it have any comment to make? In theory it should explain the implications to those who are minded to join in the coalitions under its leadership.

[Baroness Pitkeathley (Lab)]

My Lords, there is little wonder that there is so much concern in the charitable and voluntary sectors about the idea of collaborative working being detrimentally affected by the Bill. That is because collaborative working coalitions are the most effective way of campaigning and bringing about policy change. They bring together large and small organisations, single-issue and multiple-issue organisations, service providers and self-help organisations, and charities and other types of organisation. As well as enabling a powerful voice, collaborative working moderates the kinds of demand that are made and makes them more realistic. You have to achieve some kind of consensus, if, for example, you are putting together a manifesto, as many coalitions do in the run-up to an election. This may mean moderating the demands of the more extreme and pushing along the demands of the more cautious. These coalitions are very effective and this is why it is important that we get this right. This issue requires much more detailed consideration. In the mean time, the amendment proposed by the noble and right reverend Lord, Lord Harries, gets us some way along that road. I very much support it.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I should like to emphasise the challenge posed to coalition working by the present PPERA rules. I have an amendment in a later group about the practical reporting requirements that flow from it.

My noble friend Lord Tyler laid out the challenges, but the noble and right reverend Lord, Lord Harries of Pentregarth, put his finger on the issue. Our big challenge is to come up with the answer. Charities, particularly smaller ones, will always work in coalitions and therefore we must find a way to facilitate that, for the reasons given by several previous speakers. The noble Baroness, Lady Tyler of Enfield, explained this clearly from her personal experience. I can see that we are not there yet, but I hope that the round-table conference taking place early in January, to which the noble and right reverend Lord, Lord Harries, referred, will produce something that will address the weaknesses of the present system. I also hope that my noble and learned friend on the Front Bench will be able to approach that with an open mind so that we can tease out the right solution to this undoubtedly difficult but fundamental challenge.

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

Baroness Pitkeathley Excerpts

Monday 16th December 2013 Lords Chamber

[Lord Hodgson of Astley Abbotts]

I am grateful to my noble friend. Of course, we are now talking about the Charity Commission: the question is, will the advice from the Charity Commission and that from the Electoral Commission be joined up? This is an issue which we shall come back to later, with amendments. I do not doubt what my noble friend has said, but the heart of the problem is the confusion about whether the thinking is joined up and what might fall through the cracks between the two sets of guidance.

[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.

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

Baroness Pitkeathley Excerpts

Monday 16th December 2013 Lords Chamber

[Baroness Lister of Burtersett]

I do not have that evidence and no charity has written to me asking to be exempt, but there may be other noble Lords who can act as the referee in this dispute.

A point which has not been made yet is that the Electoral Commission has said explicitly that it does not support this amendment, and surely that must count for something. The noble Lord, Lord Hodgson, talked about what have been very seductive arguments, but I say to the Minister that I hope he will not listen to the siren voices of his noble friends.

[Baroness Pitkeathley (Lab)]

My Lords, I am a fan of the noble Lord, Lord Phillips. I have every reason to be grateful to him from when I was running a charity myself, but I cannot support his amendment. I, too, have had words with a great many charities and have been surprised by how many of them are opposed to this amendment and have not taken any comfort from his faith in the Charity Commission doing the excellent job that he appears to think it would do in this regard.

Some of the charities I have spoken to have been opposed to the idea of exemption for personal reasons. For example, the Save Lewisham Hospital Campaign would not have wanted to go through the process of registering as a charity to gain exemption. Those involved were too busy with their campaign. I have spoken to other charities which point out that coalitions are often formed across sectors so that they make up coalitions not only of charities but of social enterprises and, indeed, of commercial organisations. I certainly have had experience of that in my campaigning background. What we have to remember is that the NGO sector, whatever it is, is increasingly diverse. We are constantly coming across different forms of NGO-type organisations. There is a great potential for confusion among the public and supporters. We should focus on the activity being undertaken, not on the type of organisation undertaking it. I understand that some legal opinions have suggested that going for exemption may be a legally unviable option and much too open to challenge. There is also a widely held view that it is unfair to make non-charitable organisations subject to tighter regulation, thus making it more difficult for them to highlight the problems which this legislation is increasingly going to bring about.

We come back to the point that this legislation is being introduced without proper evidence and without proper consultation. As I said at Second Reading, it is very much a sledgehammer Bill to crack what was, at best, a small nut of misbehaviour by some non-charitable lobbying organisations. The noble Lord, Lord Phillips, himself said that it is complex, there is a great deal of bureaucracy and there will be a diversion of philanthropic effort. It puts a disproportionate burden on organisations and is wholly unnecessary. This does not seem to be an argument for exempting charities but for amending the Bill in the way your Lordships are trying to do.

[Lord Low of Dalston (CB)]

My Lords, I did not speak at Second Reading for the same sort of reasons as the noble Baroness, Lady Tyler, but I will just make three points in support of the amendment. In passing, I have to say that I have the impression that the charity sector does not speak with one voice on this and does not have a monolithic view. Some charities want an exemption while some do not. In those circumstances, I take the view that it is incumbent on one to support what seems the most rational course, which is what I propose to do. I declare up front my interest as a vice-president of the RNIB. I will make my three points quite briefly.

First, as the noble Lord, Lord Phillips, has made clear, charities are already regulated up to the hilt as regards political campaigning and not engaging in it. The noble Lord, Lord Hodgson, has suggested that, because of their special status, which gives them a peculiar responsibility to be beyond reproach, charities should be subject to the regulation which this legislation proposes. However, it seems to me that the validation kitemark, as you might call it, which charity regulation provides is precisely the reason not to load charities with additional regulatory burdens. What would be the point of conferring this special status on charities and then saying that it does not actually count for anything?

Secondly, along with everyone else, I pay my tribute to my noble and right reverend friend Lord Harries and to his Commission on Civil Society and Democratic Engagement, which, as everybody has said, has done such sterling work on the Bill, which will be of great assistance to the House. However, I was not entirely convinced by its argument for not exempting charities. The argument seemed to be that charities should not have an exemption because other people should have one as well—but in that case, it would not be an exemption. The case for charities having an exemption is that they are in a class of their own. As I say, if everybody is to have the exemption, it ceases to be an exemption; if others feel they should have the benefit of charitable exemption, the answer is surely for them to seek to register as a charity. Concerns have apparently also been expressed that an exemption for charities could increase the prospects of a successful challenge to the PPERA rules on freedom of expression grounds, since it will make it more difficult to argue that the restrictions imposed on others by the rules are necessary and proportionate. If that is the case, so be it, and a good thing too. In saying that I am in favour of the charities having exemption, I am in no sense against the others.

The commission chaired by the noble and right reverend Lord, Lord Harries, is concerned about the impact of the Bill on the reputation of and trust in charities and the extra regulatory costs they will face in order to campaign for their charitable objectives, but it does not recommend an exemption. I am afraid that I draw the opposite conclusion. The noble and learned Lord, Lord Hardie, and the noble Baroness, Lady Mallalieu, raised the point that non-charitable campaigners might seek to set up charitable vehicles as a means of avoidance. However, that is surely not a genuine concern because if they set up a charity they would immediately become subject to the controls imposed by charity law. They would not be able to smuggle through, under cover of a charity, things they would not be permitted to do under charity law. There would be no point in setting up a charitable vehicle to get round the Act. Given the strictness of charity law and regulation, it would be completely self-defeating.

Thirdly, the best way I can contribute to this debate is from my experience when I was more active within RNIB than I am now. I was chairman for nine years and in various senior trustee capacities before that, so I have a good deal of experience with a leading campaigning charity. This experience tells me that the desire to impose stricter controls on charities to restrict the scope of party political campaigning is completely misconceived. At election time, we are concerned to promote our views to the parties, not to promote the views of the parties to anyone else. As often as not, we are simply asking the parties about their views, not promoting those views. If I have understood him correctly, the noble and learned Lord, Lord Wallace, said in an earlier debate that this kind of activity would not be caught by the legislation. However, proving that their activities were exempt would tie the charities up in bureaucracy. The noble Lord, Lord Tyler, has shown us this with his graph showing the correlation between bureaucracy and transparency. The noble Lord, Lord Phillips, also made this clear when he described the increased regulatory burden to which charities would become subject as a result of the Bill.

The simplest thing would be to exempt the charities from the legislation.