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

Baroness Williams of Crosby Excerpts

Tuesday 28th January 2014 Lords Chamber

[Baroness Mallalieu]

My Lords, I support Motion C1 in the name of the noble and right reverend Lord. Of all the matters raised in relation to the Bill, this is the one which many of the charities and campaigning organisations which gave evidence before the Harries commission raised as the most important for them. It was the one about which, above all, they felt most strongly and they most earnestly wanted to see it changed. For campaigning organisations this is the single most important amendment, whether they are charities or not.

As they see it, this is a bureaucratic nightmare. It is a burden which we are seeking to impose and which they really have no way of defining accurately. How are they to separate regulated and unregulated staff time? The Minister has said that he does not want timesheets kept and that all that he is suggesting is an honest assessment. But what is the difference between an honest assessment, a rough calculation and an edited guess or, quite frankly, thinking of a figure? Where is the dividing line to be drawn and how can we land the Electoral Commission with the job of trying to do that? We are about to produce something which is wholly unenforceable and which the Electoral Commission itself believes should not apply for the 2015 election, after which there will be a proper review and a look at the whole question of staff costs, for both political parties and campaigning organisations. I strongly support our resistance to attempts to land people with a load of rubbish.

[Baroness Williams of Crosby (LD)]

My Lords, I, too, regret the fact that the Government felt unable to accept the exclusion of staffing costs from the Bill because I believe it to be a very important part of what charities are all about. I recognise that my noble and learned friend has done his very best to try to shorten the gap between us. However, I have a particular question for him because many charities are sustained by the work of elderly volunteers. I think all of us who go to charity shops are conscious that much of the work being done is done by them. Not only is the work done by them; their lives are substantially enriched by their involvement and commitment to a particular charity, which may well be a relatively local one.

If a volunteer of that kind or a part-time worker has expenses which they can then ask the charity to meet—for example, for meals, transport and so forth—I am not clear whether this amendment, or indeed the Bill, will catch it. I raise that point because I honestly do not know the answer and because the issue here is not just one of bureaucracy. There is also that of the very real contribution which working for charities and campaigning groups makes to the happiness and good life of many of our fellow citizens.

[Lord Horam (Con)]

My Lords, I will answer directly the point made by the noble and right reverend Lord, Lord Harries, and the noble Baroness, Lady Mallalieu, on the question of regulation: the degree of regulation and degree of bureaucracy. That was the main burden of both their comments.

I declare once again that I am a member of the Electoral Commission. I do not speak on behalf of the Electoral Commission; I speak for myself. However, I am a member of the commission and therefore have some awareness of the sort of arguments that have taken place.

I remind the noble Lords that, as regards the level of regulation and bureaucracy, the Electoral Commission has already recommended that, in principle, all staff costs should be taken into account: for non-party campaigning groups, for political parties, for charities and for all groups. They should have all their staff costs taken into account in any future general election. That is the position of the commission.

It is not a popular position. The parties do not like it; the charities, obviously, do not like it; but the Electoral Commission believes that is right and in the interests of a fair election process, where financial forces on both sides are evenly balanced and there is transparency about what financial support each particular group may have. That is the position in principle. Therefore, it cannot be said that the Electoral Commission sees any difficulty in practice or in principle in looking at the whole of staff costs, because it has said that it supports including the lot.

Therefore, we are really arguing only about the next general election. Originally, as all noble Lords will remember, the point was that under the Bill, the regulated period was going to start in May of this year. At that point, the Electoral Commission said, “This is too soon. If we are going to have to deal with all this extra detail, the charities will have difficulty in doing so—and so will the Electoral Commission”. That is the springboard from which the commission made its position plain; that there would perhaps be practical difficulties in doing it for this general election.

Since then, of course, the Government have changed their position. We are now talking about a much reduced regulatory period of seven and a half months. We are talking about the whole of the summer—the spring and the summer and the early autumn—when it is possible for the charities to look at this, if they are regulated, and to come to some conclusion. That dramatically changes the position. Although the Electoral Commission, as the noble and right reverend Lord, Lord Harries, fairly pointed out, still has some reservations about the next general election, it says in its latest advice that the amendment of the noble and right reverend Lord, Lord Harries, has only some advantages over the Government’s. That is fairly constrained language. It is a question of either/or, and it is not a very strong recommendation in favour of one or the other; it is saying that there are some advantages to the Harries amendment over the Government’s present position. It is not a big sell, in other words. So we should look at it sensibly and practically from that point of view.

In addition, as the Minister said, what we are looking for here in 2015 is, first, an honest assessment of the position. No one is looking at excessive detail, because excessive detail cannot be provided and probably cannot be checked, as the noble Lord, Lord Tyler, pointed out, on the timescale we are talking about in the middle of the general election. Lots of things are in practice unenforceable—even now, under the electoral arrangements we have at the moment—in the timescale of a general election. We are looking at an honest assessment. Thereafter, the review, which has to take place under the Bill, or under the Act as it may be, can look at what actually happened in this general election as a guide to future general elections. So in all those ways, the Government’s position is still strong and is worth supporting.

I will make a final point that was made in a previous debate by the noble Lord, Lord Martin of Springburn, who I am glad to see in the Chamber this evening. This is about the process of a general election, where the main players are the candidates, and the financial support they have is limited by Acts of Parliament. We know that political parties have a clear limit on what they can spend. Equally, there should be a clear limit and transparency about non-party campaigning. The candidates and the parties are the main players in the general election, not charities. The charities should be able to have their say, but the system should be regulated and transparent. I think that that is the Government’s position.

In those circumstances, given the Electoral Commission’s position on regulating non-party campaigning, which it is clearly in favour of in principle, and given that it does not see any undue practical problems, given proper time, perhaps the noble and right reverend Lord, Lord Harries, should think again about pressing his amendment.

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

Baroness Williams of Crosby Excerpts

Tuesday 21st January 2014 Lords Chamber

[Lord Campbell-Savours (Lab)]

The noble Lord, Lord Tyler, made clear in his contribution that the Electoral Commission was concerned about the lack of clarity. The noble and learned Lord is not answering that point. Is the commission simply to be ignored?

[Baroness Williams of Crosby (LD)]

Perhaps I may add to the point made by the noble Lord, Lord Campbell-Savours. The amendment of my noble friend Lord Tyler very much simplifies the administration. It sets a clear limit—rather clearer than the percentages in the original Bill. Given that, given the real problem about bureaucracy and fights with transparency in the Bill, and given that all of us appreciate the major changes made already, would the Minister not consider the advantages of both clarity and transparency in accepting this amendment?

[Lord Wallace of Tankerness]

Both interventions raise the same point. I say to the noble Lord, Lord Campbell-Savours, that I tried to explain how the £9,750 registration limit comes into play, but I also went on to indicate that the Electoral Commission, in its guidance, will make very clear the operation of the various registration thresholds, including this one with regard to the constituency limit, so campaigners should be in no doubt. In response to that and to my noble friend Lady Williams, I have a lot of sympathy with the point, but the figure of £5,000 is better than a percentage. I do not want to embark on the theology of the percentages because they run through the Bill, but the figure itself will appear in the guidance from the Electoral Commission.

One of the concerns about the administrative burden is that smaller organisations could be caught up. It may be that in one particular constituency there is one constituency issue with which a small campaigning group has become engaged. If we set the limit at £5,000, they may find suddenly that they have to put in place a bureaucracy and administration to deal with that. The higher limit of £9,750 would probably address such concerns, which is what we want to try to ensure. It is often so when you have an individual campaign in an individual constituency. I accept that there is no perfect answer to this. It was a judgment call as to whether we should keep the limit as low as £5,000 or, having listened to those who thought that was too low for individual constituency cases, whether it might be possible to raise the sum. For that reason and to strike that balance, we thought that £9,750 was an appropriate amount. Therefore, I invite my noble friend to withdraw his amendment. I give way to the noble and learned Lord, Lord Morris.

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[Lord Tyler]

My Lords, in response to that, I certainly agree that the Bill is greatly improved and I pay tribute to the noble and right reverend Lord for the amazing amount of work that he and other noble Lords have undertaken to achieve that purpose.

I regret very much the speed with which we have moved from Report to Third Reading and that we did not have a genuine opportunity—we only had a comparatively few hours yesterday—to look at this together. I regret even more that any amendments passed today, whether government amendments or others that are passed by your Lordships’ House, will be considered by the other place within 24 hours. The short period for discussion of any necessary improvements is very unfortunate. Had his amendment simply brought in the point raised by the Minister about leafleting, and therefore stuck rigidly to the simplicity of the first provision in his amendment, I would be much happier about it.

[Baroness Williams of Crosby]

My Lords, I intervene briefly in this debate because I am struck time and again in the exchanges in this House by the endless pursuit of perfection in an area where I do not think that perfection can be achieved. We have to accept that the best compromises that we can get are the best that we can do by this Bill at this late date. I know that it reflects the failure of pre-legislative scrutiny and I know that it reflects the lack of consultation, but given that we are where we are, I think that the recent amendments put forward—not least the ones by my noble friend and those by the noble and right reverend Lord, Lord Harries of Pentregarth—further improve the Bill. We should be pleased with having produced that effect as the matter goes to the other place.

I completely accept what my noble friend has said that it is a great shame, given the lack of pre-legislative scrutiny, that the gap between the deliberations in this House and those that are starting in the other place tomorrow is, frankly, ludicrous. It does not enable the other place to take into account the very careful and deliberate thought that has been given in this House, not least by the noble and right reverend Lord, Lord Harries of Pentregarth, and his very impressive commission, which most people here agree went into this Bill in great detail, produced some excellent amendments and really gave us the opportunity to say that the House of Lords has made a constitutional contribution of the kind for which it is distinguished in a large range of legislation.

I do not want to detain the House, but I share the view that there are certain limitations on the whole issue of dealing with leafleting and all the rest of it. I also recognise that what has come out of this is the best attempt we could make to simplify an extremely complex Bill and to keep as largely as we can the concept of constituency limits.

I have the greatest respect for outstanding intelligence, but I think that, in what the noble Baroness, Lady Mallalieu, said in her defence of the position she would like to see, she went a bit far. I think that she should have been a bit more fair about the extraordinary efforts made by Ministers in this debate to try to meet some of the points that she so forcefully made about the need to protect the freedom of speech and expression of the non-party campaigning groups. She is quite right about that, but I think that she was less than generous in her failure to recognise the extent—by raising the threshold and other ways—to which Ministers have tried to meet some of the arguments that she and some of her colleagues have made.

Having said that, I hope that Ministers will be able to pay particular attention to elements of what has been said in this House and to draw the attention of the other place—which means that they will have to work very hard tonight, I appreciate—to the points that have been made here that have not altogether been carried out. Having said that, in a very constrained situation, I think that this House and the commission can legitimately say that they have made a very substantial contribution to making this complicated Bill as good as it could be made.

[Lord Martin of Springburn]

My Lords, I come in briefly, having listened to the arguments surrounding this amendment. The noble Baroness is quite right that we cannot get perfection, but I wish that we could put on record and give due consideration to the men and women who, when a general election or municipal elections come, put their names forward as parliamentary candidates. I had the good fortune to be in a constituency where, although I hated the term “safe Labour seat” and cringed whenever anyone said it because the seat had to be worked at, I had significant admiration for those candidates who came into that constituency and said that they were flying the flag for their party—Conservatives, Liberals or the SNP. Remember that many of us get to our feet and talk about the new democracies in Africa and those that used to be behind the iron curtain, but one thing that we have to do as parliamentarians is to teach people how to be parliamentary candidates.

That brings me on to these campaign groups and it is why I asked the noble Lord, Lord Cormack, whether they might be registered charities. The noble Lord, Lord Tyler, said that they might be, if I picked him up correctly. Let me look at the registered charities which embark on campaigns. I know that the situation is different now when a general election is called, because we have got ourselves this five-year election term and people see that we can go right to the wire on a given date, five years from the previous election. In the old days, we used to sit in the tea room in the House of Commons wondering when the Prime Minister was going to go to the country, which meant that the campaign groups could not put the kettle on and say that it would be on a certain date—even those who were closest did not know that. Now that we have this five-year situation, perhaps I might send a message out to people in charities that they should use their heads. If they want to campaign, they have four years and three months, I think, in which to campaign. They should let the general election take its course with the parliamentary candidates because there is a danger here.

Let us take hospital closures, which the noble Lord mentioned. We all hate to see hospital closures, but we know that certain people have sinister reasons for being involved in a campaign, which is to embarrass a certain parliamentary candidate. I have heard the term “putting up score-cards” used during this debate. Some of these campaigns put up score-cards and say, “This is a good candidate, who has campaigned against the closure of a given hospital”. What if it was a Minister in that constituency who was holding office and had another portfolio? That Minister would not be allowed to say, “Don’t close that hospital”, yet some of these campaigners choose not to see that and say, “This is the good guy who is prepared to campaign, while your sitting Member of Parliament has been silent”. We know full well that the reason he or she has been silent may be that they are holding the office of Secretary of State. They could be holding the office of Prime Minister. However, what they have been doing in the background may have been excellent in fighting for the local community and its hospital.

I say to the charities that they really have to watch what they are doing. Every time I give to a charity, I am asked whether I am a taxpayer. If I am, the Inland Revenue will give money to that charity, so a high proportion of what charities are receiving involves the public purse and they should be careful about what they are doing. Also, it might be argued that a campaign body in an area that has no charitable status may call on other groups that have charitable status to support it.

I do not know if I am articulating my point properly, but we must give serious thought to the fact that decent men and women get into these constituencies during the general election and fight in good faith. It is wrong for some of these campaign groups to get involved when the democratic process, such as a general election, is on.

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

Baroness Williams of Crosby Excerpts

Wednesday 15th January 2014 Lords Chamber

[Lord Cormack]

My Lords, I will add just a few words to what I said a few minutes ago. I fought 12 general elections, in 10 of which I was elected, to go to the other place. In every one of those the expenditure that I was allowed was very clearly defined. The returns that one had to make afterwards were minutely examined, and there have been cases within our memory where candidates have been challenged on their returns because they were a little careless in submitting them. We have to be extremely careful. The last election I fought was in 2005, and if I remember rightly I was allowed to spend around £8,000 or £9,000. My noble friend says that it is now about £12,000, and I accept that—I am sure he is right. It was all very carefully defined, and we have to be careful, much as we all want to protect free speech and engagement in campaign and all the rest of it, that the expenditure of candidates who stand for particular political parties or as independents is not put into the shade by the expenditure that is allowed to campaigning organisations within individual constituencies. Although I do not suppose that my noble friend Lord Tyler will push his amendment to the vote, I hope that the Minister will reflect upon what he and I have said.

[Baroness Williams of Crosby (LD)]

My Lords, when at these debates, I have always felt that not enough attention is paid to the real danger of our fragile system of controlling election expenditure beginning to break down altogether. I am strongly in favour of charities having the right to campaign and being free to speak out about what they believe—that is absolutely right—and a huge contribution is made to us as a society in that way. Frankly, however, I am frightened that here, on the edge of the Third Reading of the Bill, we have observed and commented upon two huge anomalies that are still with us and still in the Bill, which open the door to the misuse of some aspects of the Bill in a way that would make the holding of that line against the misuse of public and private expenditure very difficult to hold.

Throughout my whole political life I have been very conscious, like the noble Lord, Lord Cormack, of the importance of the restrictions on the amount of money that passes into the British political system and what a huge benefit that has been to us in terms of retaining a democracy that is genuinely a democracy of the right of every individual to vote. Some of my colleagues in this House will know that I have been very much affected by the recent history of the United States, having been for 10 years an elective politics professor at Harvard, between 1986 and 1996. I will quickly say what so frightens me.

In 2010, the American Supreme Court decided to lift all restrictions on what amounts of money could be given by either corporations or trade unions directly to campaigns at the federal level. One of the outcomes of that—a decision that was made, let the House not forget, in 2010—was that in 2012 no less than $6 billion was poured into federal elections in the United States in a one-year electoral cycle. That was not enough. The sweeping away of all those restrictions was based upon the constitutional right of free speech, in my view distorted in a very troubling way. Today, the Supreme Court of 2014 has on its agenda yet another proposal, McCutcheon v Federal Election Commission, which would enable any individual, without restriction, to contribute any amount he or she wishes to the election of an individual named federal candidate—in other words, it is back to Eatanswill and the buying of politicians.

The United States is a great and very open democracy, but we are rapidly seeing the gradual distortion of its democracy by huge expenditure of money for other purposes than simply a desire to register a particular campaigning goal. I fully take the point that every step that can be taken has been taken to avoid that in the Bill. I am dubious about the proposal of the noble and learned Lord, Lord Hardie, to increase substantially the limit. However, I appreciate that the original limit was almost certainly too drastically cut. There is a median way there.

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[Baroness Williams of Crosby (LD)]

My Lords, I will not trespass on the delicate field of remuneration; but I would like to congratulate the Government on doing what they said they were going to do in putting this excellent review in the Bill.

I will add something that I can only say because of my parliamentary background. It would be immensely helpful if it could be understood that the person who conducts a review will, in the course of doing so, consult and listen to evidence from parliamentarians of all parties engaged in the campaign. They are likely, at grass-roots level, to know more than—with great respect—most leading lawyers or leading statesmen are likely to know. I very hope that it will be indicated to the person who conducts the review that he or she will be expected to invite evidence from people who are standing for Parliament and to consider the particular evidence they would like to bring to his or her attention.

[Lord Harries of Pentregarth]

It is a great relief to be able to welcome an amendment without any qualification at all; but it might be worth reminding ourselves why a review is so essential. First, with the existing PPERA, most charities were not even aware that they were regulated; it is only recently that they have come up against it. Therefore, there are fundamental problems with PPERA that have only just been revealed, and probably we have not yet had proper time to put them right.

Secondly, we have had a very short time to think about and amend the Bill before us. As we know, there was no pre-legislative scrutiny and no six-month period for consultation—which we recommended. We have had only a very short five-week period. The commission that I chair has always made it clear that the recommendations we put forward were only for the 2015 election, because we could not see the answer to a number of issues. In particular, the issue of coalition working keeps coming up and we have not yet found a satisfactory answer to that. Therefore, it is extremely good that the review body is going to be set up and that it will be in time to watch what happens with the election. It is going to have to report within a year, which of course meets the concern raised earlier by the noble Baroness about a sunset clause. It will now have to report within a year.

I have only one question: why have the Government decided that the review should be done by one person, rather than by a committee of Parliament?

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

Baroness Williams of Crosby Excerpts

Monday 13th January 2014 Lords Chamber

[Lord Norton of Louth]

My Lords, briefly I support the comments of the noble and learned Lord, Lord Hardie, and those of my noble friend Lord Tyler. I also associate myself with my noble friend’s comments about special advisers. He is absolutely right. This Bill is flawed in two major respects. First, political consultants rarely lobby directly. They advise clients and the clients do the lobbying. That point was well made in the other place, not least by those who have direct experience of the lobbying industry.

The second flaw is that when they do lobby, they rarely lobby Ministers or Permanent Secretaries directly. We know that from the debates in this House from those who have served as Ministers and Permanent Secretaries. The amendment before us goes at least some way to addressing that second problem. The Bill remains flawed and we want to look at that later in more fundamental respects, but at least this amendment would try to make a bad Bill less bad.

[Baroness Williams of Crosby (LD)]

My Lords, I strongly support my noble friend’s amendment and that put forward so effectively by the noble and learned Lord on the Cross Benches. Having been a Minister, I want to say a few words about what in my view is the absolutely vital importance of including special advisers in this Bill. I would add to that the first three ranks of the Civil Service, by which I mean under-secretary, deputy secretary and Permanent Secretary.

I find it very puzzling that the specific rank of civil servant mentioned in the Bill is that of Permanent Secretary. I can think of almost nobody less likely to be open to exploitation by lobbyists. To be a Permanent Secretary, you have to be somebody of outstanding integrity, whose honour cannot be doubted, who will be respected in his or her own department and who sets the quality and standards of that department. You are, frankly, the last woman or man to be likely to fall for the more dodgy approaches of some slightly dodgy lobbyists. In fact, it is close to inconceivable that this particular person is likely to be open to temptations of a kind that all of us would eschew.

However, I am asking the Government to include the first three levels because, as has been very rightly said, the much more tempting position is that of people near but not at the top. For example, I was for some years on the Government’s Advisory Committee on Business Appointments. We looked consistently at what the gap should be between a senior civil servant leaving his or her department and being free to take up other employment afterwards. Members of this House will know that certain departments have very close links with the private sector and that, therefore, their officials carry with them a level of expertise that is quite exceptional. They are indeed very attractive recruits to private business because obviously they have a great deal of experience and knowledge.

Generally speaking, in the Advisory Committee on Business Appointments, consideration is given to how wide the gap should be between leaving one’s employment as a civil servant and joining a private industry with which one may previously have had some kind of relationship. It is extremely tempting, obviously, for somebody to join a private sector business when they have a great deal of knowledge that would be useful to that business, but the longer the gap the less useful that knowledge may be. It is therefore strange, to say the least, that the level of seniority in the Civil Service that makes an individual so attractive to major industries that have close relations with a certain department should not be covered by this Bill.

I have suggested that we should limit that practice as much as possible. I quite agree with my noble and learned friend Lord Wallace of Tankerness, but it is no good having what he called a laundry list or a telephone list of names. Deputy and under-secretaries are very limited in number and particularly attractive to those who want their expertise. I do not doubt that both sides behave with full honour but I also think that lobbyists will be very attracted to people in that situation, and therefore it would be strange if the Bill did not cover that particular group of civil servants.

When I first became a Minister the number of special advisers was extremely closely controlled. According to Prime Minister Wilson, the absolute maximum number of special advisers any Minister, however senior, could have was two. They had to be shown to be knowledgeable about the kinds of organisations with which that Minister would interact; for example, in my own case as Minister of State for Education and Science, it was very clear that the special advisers I needed had to be able to show expert knowledge and evidence of science, universities or the education of children in schools. The two I had were both eminently well suited in that way. But the general attitude towards special advisers was very limited. They were experts, they were there to advise, but they were not there to substitute.

That has rather changed over the years. There are now many more special advisers than there were. There have been one or two worrying cases where a special adviser has taken upon himself or herself responsibility for something that clearly should belong to the Minister. My noble friend Lord Tyler gave an example. Some of your Lordships may remember the famous occasion when a special adviser told her Minister that it was a good time to issue bad news and crises were ideal because they meant that the bad news was hidden by the interest of the media in other issues. I do not want to push that very far, but there are certainly a few cases—not many—where special advisers have behaved as if they were autonomous, and beyond what seems to be either the wishes or the desires of the Minister concerned. Some people may remember that the previous Prime Minister, Mr Gordon Brown, had difficulties with at least one of his special advisers, which did not do him or his reputation any great good, despite the fact that he is undoubtedly a man of integrity and honour himself.

Quite straightforwardly, that means there is a very strong case indeed for recognising that special advisers are, as the noble and learned Lord, Lord Hardie, and my noble friend said, something of a highway to a Minister. They are the quickest route to his personal information; they are probably closer to him than anyone else in his department, with the possible exception of his PPS. Often, they are also people who have their own agendas, and those agendas may not invariably be the same as that of the department. I therefore feel that it is important that special advisers should be held accountable. Indeed I would go further and say that it is crucial that they should be held accountable, and that this Bill takes congnisance of the relationship between a Minister and a special adviser.

Therefore I hope that the House gives full consideration to the proposals in these amendments and will recognise that, without some movement towards including special advisers, the effectiveness of this Bill will be very much limited. I have already argued for the top three ranks of the Civil Service. I hope that the amendment will be seriously considered in this House, and that the Government will reconsider the narrowness of the interpretation of which people are open to lobbying. As the Bill stands, it is steadily getting better. I pay full credit to my noble and learned friend Lord Wallace of Tankerness and his noble friend Lord Wallace of Saltaire for the improvements that have been made to this Bill, but we should include special advisers in evidence that we are serious and committed to the idea of limiting unfortunate and ill-motivated lobbying to those who might be effecting it.

[Lord Woolf (CB)]

Could I ask for the noble Baroness’s assistance from her great experience on whether she sees any difference between special advisers, to whom Lord Tyler refers, and political advisers, to whom the noble and learned Lord, Lord Hardie, refers?

[Baroness Williams of Crosby]

My impression is that there is not any real difference between the two. It is possible that some Ministers prefer to use the term “political adviser” to indicate to the public the scope of a particular special adviser’s responsibilities, but I do not believe there is any more to it. I hardly dare say that to a former leading justice in this country, but I hope he will agree with me that there is no real difference between them in terms of their responsibility.

[Lord Aberdare (CB)]

My Lords, I, too, support the amendment put forward by the noble and learned Lord, Lord Hardie. I very much welcome the statement made by the noble and learned Lord, Lord Wallace of Tankerness, in terms of improving the quality, the usefulness and the timeliness of ministerial reporting of the meetings they have. But that makes me even more puzzled about what specific problem this Bill and this register are intended to solve. As we have heard, it is only going to cover consultant lobbyists who represent—if anything—less than 20% of all those operating in this area. Currently, this amendment extends only to Ministers and Permanent Secretaries.

When I worked for IBM in its public affairs function, I occasionally met Ministers, usually on what I might call ceremonial occasions. I hardly ever met Permanent Secretaries. What I did have was numerous contacts with other civil servants, and indeed with special advisers. That is where all the real lobbying activity went on, and where we pursued our interests as a company for IBM. I am completely baffled why my activities on behalf of IBM should be treated differently from the consultant lobbyists that we sometimes employed to advise us, one of which was an extremely good firm of which the noble Lord, Lord Tyler, was one of the leading lights. They would advise us on how we should approach civil servants, special advisers and others in the political process. It was not self-evident what we might have been lobbying for, because the range of interests that IBM had, and the range of issues in which it might have had an interest, was very broad indeed.

I am very conscious of the risk pointed out by some members of the lobbying industry that, under the Bill, transparency might end up being less than it was previously because the Bill sets such a low threshold that it might remove any incentive to go beyond it—although I welcome the intention to include reference to codes to which lobbyists have subscribed. If it turns out to be only a very small number of consultant lobbyists who need to register, I take the point made by the noble and learned Lord, Lord Hardie, that the burden of cost on that small number of firms of this rather elaborate structure may be unacceptable.

Finally, I am completely baffled as to how the Bill will address concerns among the public about who is saying what to whom on some of these issues. I therefore strongly support what the noble and learned Lord, Lord Hardie, has put forward and some of the related points made by the noble Lords, Lord Norton of Louth and Lord Tyler.

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The noble Lord, Lord Turnbull, suggested a figure of 412,000 civil servants; my speaking note says that there are 450,000 civil servants in the United Kingdom. One must ask whether there is really a public interest in seeing the details of all of their meetings with external organisations. Even if the scope were limited only to senior civil servants, it would still require the diaries of 5,000 individuals to be published. That would be a huge cost and would include, as the noble Lord, Lord Turnbull, said, much dead weight.

[Baroness Williams of Crosby]

On that point, I raise the question of whether the three most senior classes of the Civil Service are not in a much narrower area in terms of cost than the wider range of civil servants to which my noble and learned friend has been referring. They seem to be almost completely distinct in terms of the costs involved.

[Lord Wallace of Tankerness]

My Lords, I accept that it would be more proportionate, but I really am not in a position to say. One of the problems is that some of the terms used, such as “director-general”, mean completely different things in different departments. That has been another issue. At a time when we should be streamlining public services, not imposing additional costly burdens upon them, I do not believe that the added burden of 5,000 extra diaries would be proportionate.

--- Later in debate ---

[Lord Martin of Springburn (CB)]

I support the noble Lord, Lord Monks, and others who have spoken regarding these amendments. At one time it went without saying that anyone who had private information or was privy to it would not divulge that information except when obliged to do so in legal circumstances. Recent matters have come up in the media—I will not stray into the sub judice area—exposing people who have been involved and pleaded guilty to misconduct in public office where they have handed over private and confidential information to those who are not entitled to that information and received payment for it. We need assurances from the noble Lord the Minister that things are going to be kept very tight indeed.

I notice in the Bill that the removal of the officer concerned has to be carried out either by a meeting of the whole membership or of the delegates. That can be a very cumbersome area. If the executive of a trade union found that such an officer was wanting in his or her behaviour, it would take a long time to get all the delegates together, find a venue for them and check their credentials before they met. If it was going to be the membership, bear this in mind: it used to be the cry of the employers and the Conservative Party—a cry they were entitled to make—that there were too many small unions. I belonged to a small union, the metalworkers’ union, which was only a few thousand members and everyone said, no, we should have larger trade unions. As a result, my own circumstances changed and I now belong to the union called Unite, which is an amalgamation of many other unions. I have got to be careful because perhaps next week the name might change—I have to keep track of the name of the union to which I belong. The downside of all those amalgamations means larger membership and if we carried out the legislation to the letter by saying we should have an aggregate membership meeting, it would be some venue that we would have to create.

The important thing is that sadly we have people in confidential situations who have divulged information, and some sides have done it in what we in Scotland call a very sleekit way because they put out information by e-mail. If an e-mail goes out in a certain way, you have a trail of other e-mails which divulges a great deal of information. This matter has got to be looked at.

[Baroness Williams of Crosby]

I very strongly support the amendments tabled by the noble Lords, Lord Monks and Lord Stevenson of Balmacara. Since we have seen some of the troubling issues—for example, the keeping of a blacklist in the construction industry—it is clear that somebody whose personal details have been revealed can be at risk in a way that should not be acceptable. It is very sound and sensible to propose that there should be very stringent sanctions against any inspector who fails to recognise that confidentiality of individuals. It is accepted in this country that very strong and good relations should exist between responsible employers and responsible trade unionists. An amendment like this should be supported by the House.

[Lord Stevenson of Balmacara (Lab)]

I declare an interest as a retired member of a large union. As the noble Baroness has just said, it is common ground that the unions in Britain play a significant part in the modern economy. They should be cherished, not castigated. As has been mentioned, if the Government had brought forward such a burdensome set of duties on any other section of civil society, there would have been an outcry. Well, there is an outcry and the Government should listen.

For many employees, their membership or lack of membership of a trade union is a private choice, and one which they desire to keep confidential for what may be very legitimate reasons. The knowledge that under these new powers, trade unions could be required to provide their membership register to a government-approved official for “good reason” may act as a disincentive for workers to join unions, particularly in light of the current concern over union blacklisting. As my noble friend Lord Monks said, the Government are introducing this series of measures at the same time as the full extent of the scandal of blacklisting in the construction industry is gradually coming to light. This is by no means the only industry in which members of a union may wish to keep their membership confidential for fear of being subject to discrimination.

These measures clearly go beyond what is necessary and they are certainly not proportionate if they are to achieve any legitimate aim behind the proposals, if indeed there is one.

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

Baroness Williams of Crosby Excerpts

Wednesday 18th December 2013 Lords Chamber

[Lord Harries of Pentregarth (CB)]

My Lords, I shall speak to Amendments 167A and 167B. The Government have indicated quite clearly that they will raise the registration threshold, so the question at issue is what the sum should be. We have had various alternatives put before us already today. The recommendation of the commission that I have the privilege of chairing is £20,000 for England and £10,000 for the other three nations.

The noble and learned Lord, Lord Hardie, reminded us of the Neill committee’s recommendation in 1998 that the limit should be £25,000 and that that should be the figure also for Scotland, Northern Ireland and Wales. He posed a very sharp question: why should the registration thresholds be lower for those nations? Although our commission eventually plumped for the figure of £10,000 for those three nations, we were very tempted to put it higher, particularly because of all the difficulties in Northern Ireland, the key role that charities are playing there and their great desire not to be identified with any particular political party at this time of emergence from conflict to democracy. There is therefore a very strong case for Northern Ireland’s registration threshold to be higher.

The reasons for the raising the thresholds are obvious. The Electoral Commission says that they should be raised to at least the present PPERA levels. The argument for raising them higher than that is, first, the increased range of activities—even if you take out staff time, as we hope the Government will, there is still an increased range of activities which will cost more money. The second is inflation. Perhaps most important of all is the stated aim of the Government to give smaller charities in particular more freedom of manoeuvre without the fear that they might overstep the line.

In our report, we summed up what all smaller charities were saying. They had said that,

“they limited or stopped altogether some campaigning activity in order to ensure they did not get close to the registration threshold. For many organisations, the perceived issue of reputational risk associated with registering as a third party was important in addition to the administrative burden. The reputational risk was a particular concern to some NGOs”.

This was the case with Oxfam. Evidence gathered for the report stated that:

“Oxfam deliberately chose to ensure their spending was capped under £10,000 so they didn’t have to register, because for charities, they see it as a real brand reputational risk, they have to register as a third party because we are meant to be really apolitical NGOs. But yes they do have large budgets but have chosen not to spend them on election campaigns”.

That question of reputational risk for charities in particular is an important consideration.

So much of this legislation, and the lowering of the thresholds in particular that we are talking about now, represents an attempt to escape the influence of the super-PACs in this country. It is as though a huge net has been thrown in order to catch some great fish which might swim across the Atlantic, but the only effect of which is to trap smaller fish quite legitimately swimming freely in the waters of democracy. I hope that the Government will raise the threshold very high indeed in order that their stated aim might be achieved; that is, that smaller charities can get on with their legitimate business of campaigning on policies without fear of being caught.

On Monday, the noble Lord, Lord Gardiner, referred to his 15 years working with the Countryside Alliance. He said that,

“we were punctilious about not promoting or procuring the electoral advantage of a party or candidate”.

I am sure that they were. He continued:

“We were punctilious about these matters”.—[Official Report, 16/12/13; col. 1097.]

In fact, we understand that the Countryside Alliance had specific legal advice that its activities would be subject to PPERA regulations if it spent enough on materials to breach the registration threshold. It did not register, but that is only because it did not spend enough on printed materials. As the case study in the second commission report shows, it would clearly have needed to register under the Bill because of the new activities subject to registration. Its activities were not just to become transparent through regulation but would have been restricted because of the lower spending cap and the very low constituency limits.

In our report we set out the particular case of the Countryside Alliance and the difficulties that it would find itself in as a result of the Bill, and I wonder whether the Minister was aware of that legal advice at the time. The Government have given lots of reassurances to charities that they are not in the business of promoting or procuring the electoral advantages of a particular party, but that reassurance does not work because the sting is in not that sentence but the qualifications. A charity campaigning on policy can suddenly find that inadvertently, even if it has not mentioned a political party, and even if its primary purpose is something else altogether, it is coming up to the line where it might be caught by this regulation. It is this in particular that the commission wishes to draw to the attention of the Minister as we debate this amendment on thresholds; they need to be as high as possible in order to allow the maximum freedom that should properly be allowed in a democratic society.

[Baroness Williams of Crosby]

I ask the noble and right reverend Lord to give us his view about the last part of the amendment spoken to by my noble friend Lord Tyler. All the way through this, we are trying to find a balance between the very legitimate arguments put forward by charities, not least by the noble and right reverend Lord himself, and the real danger—I am sorry to have to say this again—of there being very heavy expenditure within one or a few constituencies that might, almost inevitably, alter the outcome of an election, despite the fact that it was not the intention to elect a particular candidate. At a certain point the level of material, campaigning and so on begins to reach such a high volume that it is very hard to make that distinction; indeed, it is an unreal distinction in those cases.

Secondly, it is crucial that we hear from the noble and right reverend Lord on the issue of bunching together different kinds of campaigns in a particular constituency. Does he recognise that it is not difficult to find all kinds of ways around our incredibly complicated registration and election regulations? It is therefore true that those small fish can grow to be quite big fish, and there is a temptation to follow the examples elsewhere. Not only does that give an illegitimate basis on which to hold the election but, perhaps equally important, it discourages people of moderate income from standing for Parliament because of the very large figures that they are supposed to meet. Will he address that part of the issue before he completes his presentation?

[Lord Harries of Pentregarth]

I have listened with great attention to what the noble Baroness has said, as I did on Monday when she suggested that the commission had not taken that point seriously enough. I was going to address it when we came to talk about constituency limits because there are a whole range of issues related to them. I notice also what the noble Lord, Lord Tyler, said about constituency limits, and I take very seriously what he has said: there is clearly a major issue there that has to be addressed. There are other issues connected with constituency limits that also need to be taken into account, though, not least all the complications of trying to ascertain which constituency it might be attributed to. I take seriously what noble Lords have said but, if I may, I will address it when we come to address the amendments on constituency limits.

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

Baroness Williams of Crosby Excerpts

Wednesday 18th December 2013 Lords Chamber

[Lord Harries of Pentregarth]

My Lords, I wish to speak to Amendments 181A, 181B and 181C, which all move in the same direction as the noble Lord, Lord Hodgson, on reviewing the Act. We made it clear from the standpoint of the commission, from the word go, that our recommendations, as a result of only a fixed five weeks of consultation, were only provisional for the 2015 election and we were very glad to learn from the Minister that he thinks that it should be reviewed.

Amendment 181B, also in the names of the noble Baroness, Lady Mallalieu, and the noble Lords, Lord Cormack and Lord Ramsbotham, puts forward the recommendation that the review should be undertaken within six months of the next parliamentary election. Amendment 181C, also in the names of the noble Baronesses, Lady Mallalieu and Lady Williams of Crosby, provides that the review should be undertaken within one year. That one-year recommendation is closely linked to Amendment 181A, which provides a sunset clause so that the Act would cease to have effect on 31 May 2016, and therefore at the end of Amendment 181C we say that the committee set up by the House to review the Act should report on its conclusions and those should be debated in both Houses before 31 May 2016. There is a clear timetable for this, and I hope that the Government will accept it.

It has been borne in upon the Government that there are issues here which are far more difficult and complex than they first thought when this legislation was put before the other place in July. We have seen this in particular in relation to constituency working, in relation to coalition working, and in relation to what is the actual heart of this, which is the definition of controlled expenditure. These are major issues that will need to be reviewed after the 2015 election.

My final point is that it is clear that the Government have approached this legislation from the standpoint of how electoral law might be abused. It is the contention of those who are heavily engaged in the democratic process, charities and other campaigning groups, that in trying to clamp down on potential abusers, they have severely curtailed the legitimate activities of people who want to contribute during an election year. The Electoral Commission has said that much of the present Act would be a burden on charities and NGOs generally. When the Minister goes away and thinks about what has been said today, I hope very much that he will do all he can to give NGOs that want to contribute to the democratic process much greater freedom and the liberation to do so without fear of crossing registration thresholds and so on, as would happen if the present Bill goes through unamended. I hope that not only will he think about what has been said both today and on Monday, but that he will support the idea of a sunset clause and a review within a year.

[Baroness Williams of Crosby (LD)]

My Lords, I rise briefly to support what has been said by the noble and right reverend Lord and to make two precise points. The first is that the original amendment provided for a period of nine months, which is too short. As we know from many experiences, there is a complexity about elections and everything does not surface as quickly as that. It is sensible and important, if we are to have a review, that it should take into account all that has happened during an election—some of that will be local and some national—and that it is allowed to take note of all the propositions that have arisen. That is because a review that comes too early is one that might well get it wrong.

My second point is the importance of the sunset clause, as has been mentioned by the noble and right reverend Lord. I am afraid that I am a little cynical about government reviews. In my experience they do not always happen, sometimes they happen with some very odd persons being involved in them, and sometimes they just disappear into thin air. The great thing about a sunset clause is that it concentrates the mind of Government wonderfully. It is like a wicket in cricket. It makes it possible to consider very carefully what is at stake. I therefore strongly support the noble and right reverend Lord in calling for a sunset clause to be linked to the review because the sunset clause makes it certain that the review will happen and be taken seriously. The Government of the day will then have to consider in detail, in the way that the noble and right reverend Lord has asked for, many aspects of this very complex law.

[Lord Cormack]

My Lords, we had no pre-legislative scrutiny and many of us are unhappy about the way in which this Bill was produced. I think that a sunset clause would set our minds at rest to a considerable degree and there is, frankly, an unanswerable case for having one. I sincerely hope that my noble and learned friend, who has already been helpful and has indicated that he accepts the need for review, and who gave us the five-week period of grace—it was not enough but nevertheless it was appreciated because it marked a recognition on the part of the Government that they had not got it entirely right—can give us an assurance that there will be a sunset clause. That, I think, would send us all off to the Christmas festivities and the new year celebrations with a spring in our heels.

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

Baroness Williams of Crosby Excerpts

Monday 16th December 2013 Lords Chamber

[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.

--- Later in debate ---

[Lord Harries of Pentregarth (CB)]

The commission did not support taking charities out, for the reasons put so fluently and eloquently by the noble Baroness, Lady Mallalieu. I will not add to what she said, but I want to respond briefly to points made by the noble Baroness, Lady Williams, and the noble Lord, Lord Phillips.

We are debating constituency limits in a separate set of amendments, so I will respond to that issue then. The noble Baroness has unrivalled experience and knowledge of the American system and the British system, and I do not doubt for a moment what is happening in America. But we have not yet been presented with any real evidence that it is happening in England. The precautionary principle is quite right: we have to beware what might happen. But we also have to make sure that our reaction is not disproportionate.

[Baroness Williams of Crosby]

There is already some evidence that American Crossroads, which is Karl Rove’s non-profit organisation—non-profit and non-political—has among other things financed young Britons to come to Republican gatherings where they are given instruction in the kinds of things that the Republicans and the Tea Party believe, at those organisations’ expense.

[Lord Harries of Pentregarth]

I absolutely agree that it is right to take precautionary steps, but I am sure that the noble Baroness would also agree that we must ensure that they are not disproportionate. The main complaint at the moment by charities and other campaigning groups is that this legislation is grossly disproportionate in the way that it bears upon them—I see the noble Baroness nodding her head.

I also have the utmost respect for the noble Lord, Lord Phillips, who is the leading charity lawyer in the country. But I have to agree with the points made by the noble Lord, Lord Hodgson. Perhaps I can approach the argument from another way. I carefully read CC9, which is the Charity Commission guidance. I also read the additional guidance that it provides for election campaigns. It makes it quite clear that charities are allowed to politically campaign. That is absolutely crystal clear. But as the noble Lord made abundantly clear, it is not always easy to draw a distinction between political campaigning in general and political campaigning that might be interpreted as supporting a particular party.

The noble Lord drew his hand across and said that there was a kind of hazy line. Does that not lead to the conclusion that the noble Lord, Lord Hodgson, made: namely, that if charities were taken out, they would have to have their own separate regime, employ extra staff, and keep in day-by-day contact with the Electoral Commission to make sure that their guidance agreed with the guidance of the commission? Would that not be a waste of resources? If charities are in fact in the same position as other groups, would it not be better for them all to be under the same regime?

I absolutely agree that there is a major difference and that charities cannot have political campaigning as their prime purpose. That is absolutely right. If the suggestion of the noble and learned Lord, Lord Hardie, about the definition of political expenses were accepted, of course charities could come out—but as long as they are allowed to politically campaign, that campaigning could be interpreted as supporting a political party or candidate.

Marriage (Same Sex Couples) Bill

Baroness Williams of Crosby Excerpts

Monday 8th July 2013 Lords Chamber

[Baroness Cumberlege]

My Lords, in Committee, I introduced an amendment that allowed civic registrars to exercise a right to conscientiously object to conducting same-sex marriages. Although there was some support for that amendment—in fact, there was quite a bit—I sensed there would be much more support for a transitional amendment that would protect only registrars in office now; they would be protected only once the Bill becomes law. These men and women are already in post and were, in effect, exempt when the law on civil partnerships was introduced in 2004. I am very grateful to the noble Lords who have put their names to this much narrower and more focused amendment, and to those who wished to put their names down. They were restricted by the fact that only four names are allowed.

We understand the nervousness about allowing future registrars to object conscientiously, but why not take those who are in office now? Without protection, those registrars will be faced with an impossible position: resign and face possible unemployment, given how difficult it is to find a job in today’s labour market; or stay and act against their conscience. The lack of protection is unfair and inconsistent with other areas of law, and it will unduly limit the freedom of thought, conscience and religion.

We need to be fair to all. We need to ensure that those who wish to can exercise a conscience clause and that those who want a same-sex marriage can marry. Nothing in the amendment would prevent couples of the same sex marrying. In the spirit of tolerance and respect, we have considered and dealt with almost every concern put to us in this House and the other place. The noble Baroness, Lady Thornton, asked whether a previous amendment would open the door to registrars conscientiously to object to other things, such as mixed-race marriages. That was never our intention, and this amendment makes it clear beyond doubt that registrars will be able to object conscientiously only to same-sex marriages. We have done so by making it absolutely clear in proposed new subsection (6) that the conscientious objection applies only to the solemnisation of marriages. That is reinforced by proposed new subsection (8), which states that the religious or other belief on which the conscientious objection must be sincerely held must concern only the marriage of same-sex couples. Any other conscientious objection to marriage will not be covered by our amendment, so it will not allow registrars to object to conducting marriages for any other reasons.

The noble Baroness, Lady Barker, seemed concerned about the scope of our previous amendment. She was under the impression that it would allow registrars conscientiously to object to more than the conducting of marriage. She was concerned that a registrar could, for example, sit in a register office at interview and refuse to assist any same-sex couple. Again, that is not what we intended. Therefore, our amendment has been revised to make it abundantly clear in proposed new subsection (6) that a registrar may conscientiously object only to conducting a same-sex marriage. Proposed new subsection (7) puts that beyond doubt by stating that any other activities will not be covered. Our amendment will not allow registrars to treat same-sex couples differently; it will merely allow them to refrain from solemnising their marriages.

I stress that our amendment is not unprecedented; it is nothing new. My noble friend, replying to the debate in Committee, attempted to draw a distinction between our conscience clause and others found in English law. I drew the attention of the House to numerous other cases, such as a doctor’s right to refuse to give contraceptive advice, a person’s right not to participate in work involving the treatment and development of human embryos, and the right of a Sikh not to wear a motor cycle helmet or a safety helmet.

Although the protection for teachers is not explicitly framed as a conscience clause, such as in our amendment, it operates like one nevertheless, because it also allows atheist teachers to refuse to conduct religious education without suffering any detriment. That operates at voluntary-aided faith schools and, interestingly, at non-faith schools. I am not saying that the registrar scenario is like that of a doctor not giving contraceptive advice or a teacher refusing to teach religious education.

Those conscience clauses and others—of which there are many—are all different, and they all allow a person to refrain from undertaking different activities. The difference did not prevent conscience clauses in those cases, so why does it in this case? What makes registrars so different as to warrant their forcible registration? Is the belief about marriage not as valuable as a belief about contraception? Is the belief about marriage not as worthy of protection as a teacher’s conscientious objection to teaching religious education? It is not, with the greatest respect, an answer to say that they perform a civil or a public function because doctors, medical professionals, teachers and so on, all of whom have the right to object conscientiously to some activities, also perform public functions for civil society. Not only is it therefore not fair to force all registrars currently in employment to conduct same-sex marriages if they conscientiously object to them, it is also unnecessary.

I am grateful to my noble friend for copying to noble Lords a letter from the chairman of the national panel for registration, but it takes us no further. Jacquie Bugeja, with whom I had a very interesting and long conversation, does not tell us in her letter, when referring to three consultation meetings, how many registrars attended each meeting. Only one or two registrars could have turned up, for all we know. Were the registrars who were not present asked for their opinion? For those who were, was there a general discussion or a confidential questionnaire? What was the format? In conversation, Jacquie could not tell me how many registrars were canvassed for their views. She said that it was left to local discretion within a local authority and that there was no follow-up by the panel.

We have not been able to find the minutes of the meeting of 2 June 2012. If there was no confidential questionnaire, registrars could have been reluctant to voice opinions. They could have risked disciplinary action being taken against them or being dismissed, as experienced by the unfortunate Miss Ladele. The second meeting was simply for 10 managers, whom we know are fearful that a conscience clause might cause them managerial inconvenience. Who attended the most recent regional meetings, held last month? Was it again just the managers, and how and where were those meetings held? What was the format and where are the minutes published for such an important issue?

The letter makes a series of unsupported statements, including that for the past 176 years registrars have been carrying out their duties and have never wanted a conscience clause. Of course they have not; they have never needed one. Local authorities up and down the country were able to accommodate their registrars’ conscientious objections. When an authority did not, it was taken to the European Court of Human Rights. The Joint Committee on Human Rights recognised the argument that registrars currently in office would not be free to hold to their beliefs if they were automatically designated as same-sex registrars. I welcome this conclusion and I urge noble Lords to support and accommodate the registrars currently in office. It is the right and the fair thing to do. In the spirit of tolerance and freedom of the individual, which is the hallmark of this House, let us together protect the registrars’ freedom of thought, conscience and religion. With this very modest but important amendment, we seek to do that. I beg to move.

[Baroness Williams of Crosby]

My Lords, I am a signatory to this amendment. I realise that the time is going by and I shall make my remarks in support of my noble friend Lady Cumberlege brief ones. Interestingly, there is a real dilemma here about both equality and liberty. Although the amendment is brief and limits itself to a modest request, it has considerably greater implications than may at first be realised.

A registrar is the first step towards a career in public life for a great many people. It is a job which they do for the community and one in which they reflect their community’s interests and concerns. It is a crucial step on the path towards the integration of different minorities, regardless of religion, language or earlier origin. It is therefore all the more important in communities where a large minority is present—let us say Muslims, or other religious groups—to make it possible for them to become registrars. To my regret, this amendment is limited quite deliberately to those already in office. I personally think that it would be better if it applied to anyone applying for this job, which, I repeat, in my view at least is the very first rung of a professional career in public life.

I shall take this one step further. There are some religions that, for deeply held principles, very strongly cannot accept the idea of single-sex marriage. That includes most of the Muslim faith and those who are supporters of Orthodox Jewry. It seems only right that registrars who hold those faiths, and who have done their job properly and intend to go on doing it well, should not be excluded from entry into that profession or, even worse, forced out of it when they have already been in it for several years and have performed satisfactorily. I can think of almost nothing crueller than to announce that after two or three years a registrar who has been behaving himself or herself in an upright and proper manner should be compelled to leave their job, often at a time when they have children and other responsibilities, because of this legislation. I cannot for the life of me believe that most people in this Chamber who believe in equality and human rights would want to see that happen.

Frankly, I do not understand why this relatively limited change could not be made easily to permit people to make this decision on conscientious grounds— for example, as my noble friend said, in cases of giving advice on contraception or taking part in abortion. This very limited right, linked to one particular thing, would allow their conscience to be exercised.

I have two important points to add on this. The numbers concerned would be relatively small. I have recently looked at the record following the passage of gay rights in Spain, and one is talking of a few score people every year. That means that any decent register office could easily, by dint of rotation or of acceptance, treat this rather in the way that they do, quite properly, in the case of a registrar or an assistant registrar who becomes pregnant, covering for them in their enforced absence. That happens to all of us virtually every day of the week in existing forms of employment. It happens to civil servants, lawyers, teachers and doctors, and there is no reason on earth why it could not happen to registrars.

I have to say to the Minister that I find this insistence on such people not being able to have a conscientious objection puzzling, given that we know in advance that certain religions will find this very hard to accept. On the kinds of grounds that my noble friend has already talked about, it would seem sensible to make this exception in such cases.

I believe that this is genuinely a conflict about equality and liberty. I personally believe very strongly that opening the doors of becoming a registrar to people of all races and religions of this country is an important tool in advancing the integration of our communities. I point particularly to those communities in the Pennines and other parts of the country where there may be a very substantial minority, or even sometimes a majority, of Muslim British citizens, and we should ensure that they, too, are treated in an absolutely equal way.

I strongly commend my noble friend’s amendment. I add one thing to what she said about attempting to discover the opinions of registrars. It is always a mistake to ask the opinions of managers about the views of the people they manage, unless you have a proper method of discovering what they are. Surely we know from the sad history of Mid Staffs that one of the things you should not do if you smell difficulties is to talk to the top management and assume that they truly reflect what the ordinary, everyday workforce thinks, because often they have a very strong in built desire to avoid any problems of managerial difficulty, which they always see as too big an obstacle. I strongly support my noble friend’s amendment.

--- Later in debate ---

[Baroness Williams of Crosby]

Would the noble Lord, Lord Alli, consider looking at other countries and at what has happened in cases where public servants have questioned the conscience of the state in asking them to do things that they believed to be deeply wrong? How much we all feel in debt to those brave people who stood up in countries such as Germany in the 1930s, and elsewhere, because they believed they had a conscientious objection to what the state was ordering them to do.

[Lord Alli]

I understand the point the noble Baroness, Lady Williams of Crosby, is making, but it undermines her argument when she and the noble Baroness, Lady Cumberlege, seek to rubbish the national panel for registration and the opinions it gave and question the core of what registrars are saying. They are saying that they do not want this.

In Committee, I said that we have to divide church and state, and this is the other side of the coin. If the noble Baroness, Lady Williams of Crosby, wants me to accept what she just said, would she accept that the church has made it very clear that it wants an absolute opt-out? It has insisted, quite rightly, and I am happy that it has done so, that any individual priest or cleric, no matter how strong their belief in same-sex marriage, should not be allowed to opt in until the religious organisation has agreed. There is a blanket exemption, so if I were a priest—the Bishop of Salisbury—and I deeply believed that I should be allowed to marry gay couples, why could I not opt in? There is a blanket ban from the churches. Individual opt-in and opt-out are not on the table. The churches themselves ruled it out at the beginning of this process. No priest can opt in; no registrar can opt out. If we accept the case for religious organisations barring individuals from opting in, we, too, must accept the case for civil registrars not being able to opt out. We have discussed this issue at length; we need to resolve it today.

Justice and Security Bill [HL]

Baroness Williams of Crosby Excerpts

Wednesday 21st November 2012 Lords Chamber

[Baroness Kennedy of The Shaws]

I, too, feel strongly that this is an issue of some importance and I thank my noble friend Lord Dubs for raising it. I know that it is too late an hour for us to consider voting but, when these matters are taken up in the other place, I would really like this to be considered. In any consideration, one wants a judge to recognise that there are some things that basically cannot be covered even by national security or by any control principle that operates between intelligence services.

If we were to discover that there had been crimes of such an egregious nature, such as genocide, murder, torture, slavery, and all the most horrifying of crimes that we can document, and that those crimes would be covered by some kind of secrecy, that would be a source of great shame to us. That must be something that is taken into consideration when looking at ways of introducing new procedures into our courts. In the end, any consideration of such serious human rights abuses has to trump even issues of national security.

[Baroness Williams of Crosby]

I also support this important amendment. We know that some countries that are considered to be relatively close allies of the United Kingdom have human rights records that are indescribably bad. It would be a tragedy to have a situation where we cannot take seriously these human rights violations because of the limits that are placed in the language of this Bill.

We are increasingly seeing human rights becoming a new, very important structure of international law, which perhaps encouraged such movements as the Arab spring, and which undoubtedly helped to release many people from the acts of coercion by their own governments. We have close relations, as does the United States and our other allies, with some countries with poor human rights records. When those poor human rights records enter into the area of international criminal action, of the kind described by the noble Lord, Lord Dubs, I hope that we recognise that we have an obligation as a country with a very strong record of supporting human rights to maintain that standard and record. Indeed we are basically the founder of the original European Convention on Human Rights legislation, which binds us all today. We therefore will expect the Government to look very closely at the wording of this part of the Bill before we get to Third Reading to ensure that it will not mean that such major acts of criminality will be disregarded because of our legislation.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Dubs, for moving this amendment. We now move on to the Norwich Pharmacal part of this Bill. I thank the noble Baroness, Lady Kennedy, and my noble friend Lady Williams for their important contribution on an issue that, going by the earlier debate, is of considerable importance with regard to human rights and serious breaches of human rights.

The noble Lord, Lord Dubs, highlighted two points: one relating to serious breaches involving, for example, torture; and the other part of his amendment that relates to the control principle. To put this in context, the approach taken by this Bill is consistent with other legislation that has been passed by Parliament. For example, in the Freedom of information Act 2000, Parliament explicitly ruled out a right to access intelligence material; and the Evidence (Proceedings in Other Jurisdictions) Act 1975 and the Crime (International Co-operation) Act 2003 provide for exemptions from disclosure of evidence into overseas proceedings where such disclosure would prejudice the United Kingdom’s national security.

First, I will indicate why limiting the protection offered by legislation to the control principle, which I think is what the noble Lord was seeking to do, does not go far enough. We appreciate that it is important that this is recognised and, of course, as has been said numerous times in our debates, it is essential that the originator of the material remains in control of its handling and dissemination. However, it is often the fact as well as the content of the sharing arrangements that needs to be protected. Certifying information as subject to a control principle agreement could reveal the fact that such a highly sensitive relationship exists. Countries may not thank us for revealing that fact, and might come under pressure to end co-operation with us.

Moreover, there are also some considerable difficulties in identifying what qualifies as control principle material, and these difficulties could lead to further uncertainty and litigation. Perhaps I might be allowed, even at this time of night, to indicate again evidence given by Mr David Anderson QC in June to the Joint Committee on Human Rights, when he discussed these practical difficulties. There may be correspondence between the intelligence services commenting on control principle material, or assessments based on a mix of domestic and foreign material, and it would often be very difficult to distinguish between them.

It is important that we respect human rights and that we take seriously human rights violations, and that we take measures to ensure that there are effective remedies available. I spoke at some length in Committee about what the Government do, both in the United Kingdom and overseas, to promote and uphold human rights. It bears repeating that the United Kingdom Government stand firmly against torture and cruel, inhuman or degrading treatment or punishment. As I indicated in a previous debate, we do not condone it, nor do we ask others to do it on our behalf.

We work on human rights around the world through bilateral contacts, membership of international organisations and development aid and assistance, and in partnership with civil society. Our efforts worldwide on combating torture are guided by the Foreign and Commonwealth Office Prevention of Torture Strategy 2011-2015. The United Kingdom is working to strengthen legal frameworks to prevent and prohibit torture, develop the will and capacity of states to prevent and prohibit torture, and help organisations on the ground to get the expertise and training they need to prevent and prohibit torture.

In recent months the United Kingdom has made its position on torture clear in public statements on countries of concern, lobbied to strengthen adherence to the convention against torture and the ICCPR, and delivered in-country training to officials of other countries on handling complaints of torture in places of detention. In addition, the Government devote significant resources overseas to combating torture. This work is often done behind the scenes, but there is also much work in providing consular assistance as well as in lobbying and capacity-building projects.

In the Norwich Pharmacal context, however, the Government believe that such disclosure is not the most effective solution to the problem. Disclosure in a single case can have far-reaching long-term effects on the United Kingdom’s national security and international relations, making it harder for the United Kingdom to act as a positive influence on human rights world wide. It is not in any way the case that we do not take these matters seriously. I hope I have indicated that there is a very extensive programme of work and commitment on the part of the United Kingdom Government to tackle torture, but we do not believe that using the Norwich Pharmacal procedure is the way in which to do that. In these circumstances, I invite the noble Lord to withdraw his amendment.