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

Baroness Royall of Blaisdon Excerpts

Tuesday 22nd October 2013 Lords Chamber

[Lord Tyler (LD)]

My Lords, in many years of public life I cannot recall a set of proposals that have been so misunderstood and, to some extent, misrepresented. I hope that during this debate, and particularly in Committee, we will be able to reassure the many charities and smaller campaign groups that have been in touch with us that the Bill is not about stopping them contributing to our democracy. As my noble friend the Minister said, the target is the very wealthy and powerful interests that would seek to influence executive decisions and our elections, and which evidently feel threatened by greater transparency. I am interested to see that some charities that have been in touch with me now see that they have more of a problem with charity law than with the Bill. They may have to look carefully at the intentions of the Bill and at the detail of the charity law with which they may have a problem.

The Bill is a first, essential step towards taking big money out of politics: an issue that has been with us ever since Bernie Ecclestone, the tobacco lobby and Formula 1 was brought to our attention in the early years of the Blair regime. That has obviously increased our awareness of the threat to our democracy. I recall that the noble Baroness, Lady Royall, urged the Government to introduce a lobbying Bill in her contribution to the debates in May—and I endorsed her request. Ironically, she referred specifically to the tobacco lobby and to the Murdoch empire. Her colleagues in the previous Government have good reason to remember both those organisations.

I think that it was the present Prime Minister who said that sunlight was the best disinfectant. As the Minister said, important steps have already been taken to increase transparency in Whitehall about who is meeting whom. However, the Bill will take that a step further, and if we can improve it further again by building on the register, as I will come to in a minute, that will be a very important step forward.

Part 2 deals with the considerable potential threat from “super-PACs”, which are now so evident in the USA. We have to face up to the fact that the capacity of millionaires to set up organisations that could each spend £793,500 in England—and do so in just one constituency if they chose to, under present law—could have a major impact in distorting results.

I am alarmed to note that I have contested some 12 elections, and on each occasion have been advised, on pain of serious penalty, to watch every penny spent in support of my candidature. On one occasion, however, when I was defending a majority of just nine votes, I was targeted by a shadowy pro-apartheid group that helped to secure my subsequent defeat. I want to see that type of activity brought into the light of day, and the Bill will start that process.

On Part 1, if I may go into a little more detail, I also have some practical experience since at one time, before politics took over, I had a real job as the head of a public affairs consultancy advising NGOs, environmental organisations, local government and trade associations—what I suppose would now be described as lobbying. The Government’s intention—rightly, in my view—is not to regulate lobbying but to ensure that the sunshine is very firmly imposed on it. We need to know who has the ear of Ministers and other decision-makers. To my mind, including in-house lobbyists would be a red herring and would create a huge telephone directory-style registry, including a huge number of people who would actually be irrelevant to greater transparency. It would not improve the extent to which we could see what was actually going on, because it would lose the wood for the enormous forest of trees, and hide in plain sight what was being done in the name of those paying for it to be done.

Meeting data about interactions with in-house lobbyists are already published, as my noble friend said, and if Oxfam or even Tesco meet a Minister, we know whose interests they are promoting. However, this could of course be greatly improved with a central database, an easily accessible online front end, through which anyone—the media, individual citizens, Members of your Lordships’ House—could establish who has met whom in Government, and indeed what the subject has been at what stage, without, as is currently the case, having to go through 60 different Excel spreadsheets, each parcelled away in different obscure parts of departmental websites. The key to transparency is easy access and simplicity, and the register is a very good first step in that direction.

During the passage of the Bill I will examine two key areas for the improvement of Part 1. First, as has already been referred to, we have to ensure that the meetings of special advisers, who are not directly responsible to the Permanent Secretaries in the same way as other members of the Civil Service, with any consultant lobbyists who have interacted with them are appropriately registered. We should remember that two of the most dramatic scandals involving privileged access in recent years involved ministerial advisers rather than Ministers themselves. Secondly, we have to look very carefully to see how the new statutory register can complement existing voluntary arrangements. The register that the Government propose is deliberately a statutory minimum, but surely it would be perverse if lobbyists then departed from their responsibilities under existing codes put in place by the UK Public Affairs Council.

As I said earlier, there has been a great deal of understandable misunderstanding, but some mis- information as well, about Part 2 of the Bill. I suspect that other Members of your Lordships’ House over recent weeks—in my case, over recent months—have been receiving e-mails referring to a supposed threat to freedom of speech. This is not a gagging Bill; it concerns itself not with what people say but with what they spend. That is the critical issue.

Those of us who have experience of electoral law know that that principle has been there since 1883, since people back in the 19th century were very concerned about buying votes. I cannot see why anyone who is attempting to influence the outcome of an election—to buy votes, if you like—who happens not to be standing as a candidate, should be able to spend unlimited sums on,

“promoting or procuring electoral success”.

As has already been made clear, that definition has stood four-square in two general elections, and MPs have done the right thing in returning to it.

The current definition in Clause 26 of activities that,

“can reasonably be regarded as intended to promote or procure electoral success”,

for a party or candidate, has been in place since PPERA 2000. The Commons rightly agreed to take out the rather vaguer phrase about “otherwise enhancing the standing” of parties or candidates.

I absolve the noble Baroness, Lady Hayter, of any responsibility for the 2000 Act, since I do not think that she was directly involved then. However, many of us at both ends of this building were involved. We should assure her that it has stood the test of time. We took infinite trouble in both Houses to get the definition right. Surely it is ridiculous to say at this stage that the definition is defective, as she implied. If it had been so defective, surely the Electoral Commission, with its practical experience, would have recommended over many years that it needed updating, and, presumably, the Labour Government of the day would have implemented the recommendation. Can we at least accept that the definition stands four-square and is accepted on all sides?

I accept that there is quite a different issue when we come from the definitions to the spending limits, which are at present probably indefensible. The total limit for the United Kingdom is just shy of £1 million. The English limit of £793,500 could be focused on just one constituency. What if the oil companies decided to target a certain Brighton constituency to remove a Green MP, or other interests piled into a few seats held by Members of Parliament opposed to the review of the Hunting Act—which is a practical proposition—or piled into constituencies of prominent Conservatives who happen to favour continued United Kingdom membership of the European Union? The Americans have been teaching many people in this country how to target with big money.

In the past few days I have met representatives of the RSPB, Countryside Alliance, Transparency International, 38 Degrees and Friends of the Earth, and have discussed the situation with many others, through the good offices of the commission of the noble and right reverend Lord, Lord Harries, to whom I pay tribute. All the organisations seem to agree that the existing regulations may be flawed, so the question is how to get the revised regulations right.

For example, the threshold for registration is obviously a big concern for these organisations. You could plot on a graph transparency on the one hand and bureaucracy on the other in very many areas of life. If transparency is low, the regulatory burden tends to be low, too. If accountability is strong, it is likely that the regulatory burden will be significant. The threshold is a question of where we plot this legislation on that graph. The lower thresholds proposed by the Government will improve and increase the accountability of campaign spending. Conversely, they inevitably increase the burden on smaller organisations. It will be our responsibility in your Lordships’ House to get the balance right when we come to Committee.

The second area of concern among a number of organisations is Schedule 3. These provisions flow directly from the Electoral Commission’s recommendation that the activities for which non-parties should have to account should be the same as those for which parties have to account. In that, it is perfectly reasonable to question how staff costs should be applied in the schedule. We will all listen to what the groups say about this and will probe the matter in Committee.

Reference was made to the way in which the Government’s proposals have been examined. Obviously, I think that we would all agree that if timing had permitted, pre-legislative scrutiny would have been desirable. However, the cross-party talks—of which I have direct knowledge—between the three major parties on the area of political funding effectively prevented this. It may well be a criticism that the Deputy Prime Minister should have realised that he was being strung along by the other two parties—that they were not serious about getting a result. However, given that they could not come to an agreement, it was obviously important to move on this particular issue, which was also agreed between the three parties.

[Baroness Royall of Blaisdon (Lab)]

My Lords, can I nail the myth that is going around that was perpetuated by the Deputy Prime Minister in the Commons last Tuesday? There were no substantive talks at all on third-party funding in the talks to which the noble Lord refers. Far from the current proposals being discussed extensively, they were never raised, never proposed and never discussed. Also, the talks did not break down; they ceased but they did not break down. I wish the noble Lord would not keep perpetuating that myth.

[Lord Tyler]

My Lords, my information is different on both points. We can have a further discussion after this debate. There was, of course, agreement between the three major parties that there was a need to address the issue. I hope the noble Baroness will agree on that, because there certainly was. Since then, unfortunately, there has been a tendency to jump on the bandwagon.

Meanwhile, there has also been a repetition of the idea that somehow the Electoral Commission was never involved in the exercise. As I have previously told your Lordships’ House, I have served on an informal all-party advisory group for the Electoral Commission for some years. It is simply not accurate to say that the commission has made no contribution to the thought process that led to this Bill. I will quote two warnings given by the commission in February 2013, under the heading, “Regulating Third Party Campaigning in the UK”. The first states that,

“the rules on general campaigning that is intended to influence voters should reflect the rules for political parties by covering events, media work and polling, as well as election material”.

The second states that,

“the Government should have order-making powers to update the rules on general campaigning, in order to deal with changing campaign methods in future”.

In the months that followed, between February and the publication of the Bill, there was indeed a continual dialogue, and I have a letter from the chair of the commission to confirm that. It is perfectly true that it was not consulted over every single part of the Bill, but a general dialogue continued about the necessary modernisation of the regulatory regime. I think that most Members of your Lordships’ House would say that it is preferable to have full scrutiny of a statutory process than to have a change in ministerial order-making powers.

Our duty now is to get the detail of the Bill right and to reassure those charities that have been unduly concerned. In particular, we will have to be satisfied that registration thresholds, the scope of Schedule 3 and the expenditure limits strike the right balance between transparency and bureaucracy. Delay will not help those who are concerned with this detail. Campaigners need time to assess their plans for the run-up to the May 2015 general election—and, of course, the Electoral Commission needs certainty so that it can give good advice. That is why it recommended opposition to the delaying tactics proposed in the other place.

Your Lordships’ House has an excellent reputation for detailed scrutiny. I hope there will be agreement today that we should get on with that job. This can be a good change in the law that will shine a light on a small but significant area of opacity in lobbying and will prevent the distortion of our politics by wealthy interests.

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[Baroness Royall of Blaisdon]

My Lords, I warmly welcome the noble Lord, Lord Horam, and I congratulate him on his maiden speech. He has certainly participated in a brilliant debate on a bad Bill that is badly drafted and, as my noble friend so dramatically demonstrated, not easily understood.

The Bill does not deal with the problem it was designed to address and has a chilling effect on civil society organisations and charities, which are a cornerstone of our society, while purporting to solve a problem with trade unions that does not exist. Furthermore, as this is a constitutional Bill, it should have had pre-legislative scrutiny, and due process should have been followed, including proper consultation, as demanded by governmental procedures. I must ask the Minister: why the unseemly haste, which so many noble Lords mentioned? Why was there absolutely no consultation with the organisations that will be most affected by the Bill—the myriad organisations up and down the country which are the basis of our thriving civil society? Could it be that the Government were so sighted on their goal of silencing organisations that they might regard as potential critics before the next general election that they simply abandoned the processes upon which government and good governance depend?

The Minister cannot accuse me of taking a political stance because these points have been made by noble Lords on all Benches. That must be a strong signal to the Minister that there is something drastically wrong with the Bill. Out of 38 speakers, the Bill has only one fervent champion—the noble Lord, Lord Tyler—and perhaps three or four lukewarm supporters. In relation to process, we heard powerful speeches from my noble friend Lady Jay, chair of your Lordships’ Constitution Committee, the noble Lord, Lord Norton of Louth, other members of the Constitution Committee and others of my noble friends who are members of the Joint Committee on Human Rights. When parliamentary processes are abused, especially in relation to constitutional Bills, Parliament itself is abused. To repeat the words of the Constitution Committee,

“if Parliament cannot be seen to be scrutinising proposals with the thoroughness they deserve, public confidence in parliamentarians is likely to be further undermined”.

The Dalai Lama said:

“A lack of transparency results in distrust and a deep sense of insecurity”.

I suggest that lack of transparency, especially where access to power is concerned, is one of the reasons that people feel alienated from politics. Lobbying is a normal and an essential part of an active democracy; that includes commercial lobbying. However, it has been clear for some time that the professional sector of the industry needs to be regulated. Indeed, the Prime Minister, when he was Leader of the Opposition, said that lobbying was,

“an issue that exposes the far-too-cosy relationship between politics, government, business and money”.

He was right. My party strongly supports a statutory universal register of lobbyists that covers all those who lobby, not just those working for consultancies. Sadly, the Government’s proposals in the Bill not only fail to deliver such a register but are a step backwards. As my noble friend pointed out, the proposed register would cover fewer lobbyists than the existing voluntary register set up by the UK Public Affairs Council.

I would be grateful if the Minister could tell the House why the register that the Government propose is intended to apply only to those lobbying on behalf of someone else: that is to say, to consultant lobbyists rather than to all lobbyists. The consensus in this House, in the lobbying industry, in the voluntary sector, in the trade unions and among transparency campaigners is that this approach is too narrow. Why should in-house lobbyists, who represent around 80% of the industry, not be required to register along with all other professional lobbyists? Not only is this wrong, it is unfair; it discriminates against different types of lobbyists. The cosy relationship between government and the tobacco and energy industries will continue, one reason being that there is a fundamental lack of understanding in the Government about lobbying.

Furthermore, the proposals before us create loopholes that will be exploited by the unscrupulous. I share the puzzlement of the noble Lord, Lord Jay. Why is it that someone will count as a lobbyist only if they lobby Ministers or Permanent Secretaries directly? As many have said, anyone who has been in government, in the Civil Service or a lobbyist would agree that the best results often come from lobbying MPs and Peers, more junior civil servants—including those who work in UKRep—and, of course, special advisers. One just has to cite the case of Adam Smith and the News Corporation lobbyist, Fred Michel, which would not have been touched by the Bill. Of course, who is lobbying whom is important but the subject matter is also of importance.

Too many people in this country have lost trust in politicians and the political system. The noble Baroness, Lady Kidron, spoke of the importance of young people taking an active part in campaigning as a path to engaging in democracy. In the most recent election, of the 18 to 24 year-olds who were eligible to vote, only 44% voted. A healthy democracy needs to be nurtured in order to thrive, and voting is crucial for legitimacy. It is a key part of a healthy society in which all citizens, not just the privileged few, have a say.

As the right reverend Prelate said, democracy is in crisis, and professional politics has meant that political energy has been quite rightly taken over by faith groups and by charities. As the noble Earl, Lord Clancarty, said, the Bill puts politics further into the Westminster bubble instead of opening it out to the whole population.

We all recall the Prime Minister’s big idea, the big society, which seems to have disappeared from the Conservatives’ lexicon. It was not a big idea, of course, because millions of people in this country have always been active citizens. Charities are part of our DNA, and my Government worked closely with civil society and NGOs. Nevertheless, apart from concern about the increased burdens on civil society as a consequence of government cuts and withdrawing some of their obligations, I was glad that the role of civil society was being celebrated, and that participants were no longer regarded merely as service providers. It is astonishing that the coalition Government, whose Members in this House have strong links with hundreds of charities and faith groups, should seek to curb the work and to silence the voice of charities and others who wish to campaign, for a year before the general election. There has been much concern about this.

As my noble friend said, the Government are hosting the annual summit of the Open Government Partnership in London on 31 October, where participants will share experiences from their respective countries and provide real examples of how openness can improve public service, drive economic growth, reduce poverty and corruption and restore public faith in government. One of the sessions, possibly attended by the right honourable Francis Maude MP, is entitled, “Empowering Citizens: Transforming the Relationship between Citizens and Government”. Presumably this will follow the partnership’s vision of ensuring that Governments become more transparent, more accountable and more responsive to their citizens. That is contrary to the ethos of the Bill before us.

My noble friend Lady Pitkeathley gave the most stunning example of the beneficial results of campaigning by charities—that is to say, apolitical campaigning, which would not be possible under the Bill. My noble friend Lord Griffiths spoke with a passion that I feel.

Many organisations have been cited today with regard to Part 2 of the Bill, and I am grateful for the vast number of briefings received. My noble friend Lady Jay encapsulated many of the fears expressed by those organisations when she said that the Constitution Committee is concerned about the restrictions on the right to freedom of expression that will result from the proposal to limit third-party expenditure at general elections. We think that this constitutional right should be interfered with only when there is clear justification for doing so.

The Opposition requested and received two legal opinions on the Bill from a pairing of eminent barristers specialising in this field: James Goudie QC of 11 King’s Bench and Fraser Campbell of Blackstone Chambers. The damning conclusion of the legal opinion is that the Bill infringes both Article 10 of the European Convention on Human Rights on freedom of expression, and Article 11 on freedom of assembly and association. The lack of clarity surrounding Part 2 means that it is not sufficiently precise and accessible to enable an individual to foresee to a degree that is reasonable in the circumstances the penal consequences that breaching them would have. Furthermore, the provisions are judged,

“not necessary in a democratic society”,

because they are “disproportionate” and both,

“unduly burdensome and too wide”.

Large organisations are concerned about complexities, the tangle of red tape and the chilling effect, but the smaller organisations are terrified—for example, about the reduction from £10,000 to £5,000 of the threshold at which they would need to register with the Electoral Commission in England, and to £2,000 in Scotland, Wales and Northern Ireland. On its own, £5,000 is a lot of money for a small charity to spend, but, as has been pointed out, charities often work in partnership with others, and all organisations in a joint campaign are responsible for declaring all the spend above the threshold. The British Legion, writing about the cost of the increased regulatory burden, said:

“Even the Legion, which is a relatively large charity, has no dedicated administrative support within its campaign team, and we do not believe that members of the public purchase Poppies in order to fund the servicing of such requirements”.

This is a costly bureaucratic nightmare, and charities and communities may either unwittingly break the law or be inhibited from campaigning in the public interest.

The excellent organisation cited by the noble Lord, Lord Greaves, HOPE not hate, which does so much to promote peace among our communities and provides information about candidates standing for the far right in elections, would be restricted to a fraction of what the BNP could spend in any election period. Are the Government trying to suggest that this and similar organisations should form a political party in order to be able to campaign?

The noble and right reverend Lord, Lord Harries of Pentregarth, chair of the Commission on Civil Society and Democratic Engagement, raised a vast number of questions on behalf of charities and campaigning groups, and explained their fears and complexities. I warmly welcome the initiative taken by the noble and right reverend Lord, and his colleagues, including my noble friend, which fills a yawning gap in the Government’s own procedures. They were able to consult a vast variety of NGOs and experts up and down the country, so why could the Government not do that? I very much look forward to the commission’s report and its recommendations before Committee. The lack of consultation is compounded in Scotland, Wales and Northern Ireland, where neither the organisations affected nor the devolved institutions were consulted. That is of particular importance in Northern Ireland, where civil society engagement is a cornerstone of the peace process, and is one reason why such great progress has been made and must be sustained.

As my noble friends have said, there is no evidence for why Part 3 of the Bill is needed, and no Minister has been able adequately to explain the reason. I almost feel sorry for the noble Viscount. He had to defend the indefensible on the shares-for-rights Bill, and now he has to find a reason for Part 3. As my noble friend Lord Monks said, since 2004 there have been no complaints to a certification officer from trade union members about the registration of their details, and from 2000 to 2004 there were just six complaints, of which five were thrown out. What, then, is the problem?

Seldom can a Bill have had so few friends—the only friends it has sit on the coalition Benches; or rather, the only friend—and seldom has a Bill had so many opposed to it. Seldom has a Bill raised common concerns and united the whole of civil society, including charities and community organisations large and small, trade unions, professional organisations, lawyers, professional lobbyists and their associations, the Joint Committee on Human Rights, the Constitution Committee of your Lordships’ House, the Political and Constitutional Reform Committee of the other place, the Financial Times and the Guardian. The vast majority of the committees, organisations and individuals have asked the Government to pause and think again. As the noble Lord, Lord Ramsbotham, said, the Government should do so before they inflict unnecessary damage on one of the jewels in our crown: the voluntary sector.

It is clear from most of the speeches made today that there is strong support in this House for the Government to withdraw the Bill, consult and return with a Bill that is fit for purpose. The lobbying proposals should be revised and Part 2 should be the subject of cross-party agreement. These issues are too serious to be used as a political football. The problem that Part 3 is designed to answer must be identified before solutions are proposed.

There are fundamental lessons to be learned from the Bill. Pre-legislative scrutiny should be standard practice; Bills—especially constitutional Bills—must not be rushed through Parliament in order to fulfil a political objective; and consultation with those affected absolutely must take place. I trust that the Minister will give his assurance that this lack of respect for parliamentary procedures and the people with whom they should consult will not be repeated.

Most importantly, on behalf of all of the organisations and individuals affected, all of our citizens who lack trust in Parliament, politics and politicians, and the majority of noble Lords who have spoken today, I urge the Minister to pause, to withdraw the Bill, to consult and to return to Parliament with a Bill that commands the respect and support that these issues of fundamental importance to our democracy deserve.

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[Lord Wallace of Saltaire]

It shows my ignorance more than anything. The Bill team has a Keeling schedule, and it will be distributed. Of course, the Bill team has a Keeling schedule—it is part of what Bill teams have to do in preparing the Bill. Since this is a rather complicated amendment of PPERA, that is what we are into.

I stress, as has been stressed by a number of noble Lords, that this is an amendment to PPERA. It is about election law, not about charities law; charities are not the main target and not those mainly affected by it. The most recent Electoral Commission report on this said:

“The Commission believes that, where significant non-party campaigning takes place, this should be transparent and properly regulated ... We think these controls on campaigning that is not explicitly ‘party political’ are a necessary part of the regime. Without them, it would be easy to evade the rules by framing political campaigning in terms of policies. For similar reasons, we do not think the rules should exclude particular types of organisations, such as charities or voluntary bodies, as this would create opportunities for political campaigners to evade the rules and would reduce transparency. However, the necessarily wide scope of the definition of controlled spending makes it particularly important to consider the overall impact on campaigners of Part 2 of the Bill, including the registration thresholds and spending limits”.

That is what we will focus on in Committee—but it is correct that we should include this in the scope of the Bill.

I was quite surprised—

[Baroness Royall of Blaisdon]

As the Minister has just said, rightly, that it is important to look at the effect on charities and campaigning organisations affected by the Bill, why did the Government not consult those bodies before bringing the Bill forward? The Minister said just now that now that they had had their Second Reading they were going to consult. Why did not the Government consult beforehand?

[Lord Wallace of Saltaire]

I am conscious of a number of meetings with ACEVO, the NCVO and a number of other organisations over the past few months—and we are continuing to consult them. So we are not just about to start; we have been consulting.

I was quite surprised that no one had looked at the list of registered third parties for controlled expenditure for the 2010 general election, which seems to be a relevant part of the background. There are 30 of them on the list that I have here; six of them are in the field of animal welfare, which is hardly surprising—and the noble Baroness, Lady Mallalieu, is nodding at me as I say this. There are two major unions. Among others, there is an interesting body called the Young Britons’ Foundation. I Googled several of these bodies just to discover them, and perhaps I can read something for those noble Lords who think that American campaigning has not yet reached Britain. It says that the foundation,

“was launched in July 2003 at a conference of the Young America’s Foundation in Washington, D.C., and it has said that it aims to ‘import American political techniques into the UK’”.

On the most recent knowledge that I have, its advisory board included,

“representatives of the Heritage Foundation … US Competitive Enterprise Institute and American Conservative Union”,

and a number of other, similar bodies.

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[Lord Wallace of Saltaire]

I accept—and have also had it said to me in the Corridors—that we need to make sure that the guidance from the Electoral Commission, the Charity Commission and the Government are all in very close harmony. That is another area that we are, of course, now looking at.

The time is late. I will come very briefly to Part 3. Again, I recognise what has been said powerfully by a number of noble Lords here with trade union experience. We will come back to this in Committee, so I will say simply that unions are a major and extremely valuable aspect of our economy and our society. They have changed through a number of amalgamations over recent years and the Government consider the question of how accurate the membership lists of major unions are—we are talking about unions with 1 million or more members—is an appropriate point to be regulated. However, I take all the points—

[Baroness Royall of Blaisdon]

My Lords, we are talking about unions with a membership of more than 10,000, as I understand it; that is what is in the proposal, not 1 million.

[Lord Wallace of Saltaire]

However, we are not talking about the smallest unions.

I take the point from, I think, the noble Lord, Lord Whitty, about whether information given to the assurer or certification officer might fall into other hands. That is a large issue of data privacy—this was raised by another noble Lord—which raises broader issues that concern the Government across the board. I will give him my assurance now but I will also check back and make sure that there are cast-iron assurances that data privacy issues will be resolved. We will have—