Immigration Bill
Earl of Sandwich Excerpts(10 years, 7 months ago)
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The Earl of Sandwich
“( ) An appeal to which subsection (3) applies must be brought from within the United Kingdom if the appellant has a child in the United Kingdom, and it would be in the best interests of that child for the appeal to be brought from within the United Kingdom.”
The Earl of Sandwich (CB)
We had a long discussion about children earlier in the afternoon, and I am bringing back the subject of children today under the heading of “deportation”. This amendment is about the children of parents who are facing deportation. The Minister may remember that I was away for most of Committee, but I mentioned it at Second Reading and pointed out that, under the Bill, against the advice of the JCHR, individuals removed from this country may be prevented from challenging their deportation if they are no longer in the UK, and that their children, if separated from them for this or for other reasons, may be in particular difficulty. The noble Baroness, Lady Hamwee, expressed similar concerns in her amendment in Committee.
If the parent is removed, how will the Home Office discover the true situation of the child? As the noble Lord, Lord Pannick, said in that debate, in the light of the changes going on to judicial review, and other changes, there are real concerns about whether an effective practical remedy will remain available. The noble Lord, Lord Avebury, also brought this issue up earlier today. There will be huge practical barriers to individuals appealing their deportation from abroad. Such cases often turn on issues of credibility. Appellants will be severely disadvantaged by not appearing in court and, in the present climate of legal aid cuts, they will face serious problems in accessing any legal advice.
The noble Baroness, Lady Hamwee, had difficulty with a similar amendment, which is why I am bringing it back with an additional reference to the UN Convention on the Rights of the Child. Not surprisingly, this convention states that the child should not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine that such separation is necessary for the best interests of the child. Earlier, the noble Lord, Lord Taylor, gave yet another assurance on this. I note that Amendment 58 is about a duty regarding the welfare of children, and that the amendment in the name of the noble Lord, Lord Watson, concerns the best interests of children.
This matter surely also covers the point made in a previous debate by the noble Lord, Lord Bourne, that there might be ambiguity about what the best interests of the child were, and that the child might be better off with relations abroad. However, that does not, of course, cover every case. According to legal experts I have consulted, the safeguards under the Bill are insufficient. The noble Baroness, Lady Smith, said that there was still uncertainty in the clause as it stands. Therefore, my first question is: how will the Government consider a child’s best interests before deporting a parent to appeal from abroad?
The noble and learned Lord, Lord Wallace, said that the power was a discretionary one, applied only where there is not a risk of serious irreversible harm, and that it will therefore not be applied in all Article 8 cases. However, a parent’s deportation may result in grave harm to a child that is not irreversible. Therefore, my second question is: will parents be deported before an appeal in cases where this action will cause serious harm to their child, but only serious harm that the Home Office deems will not be irreversible? In Committee, the noble and learned Lord made it clear that we are dealing largely with criminals as well as failed asylum seekers. That may be so, yet one in three of these people does not fall neatly into that category; we know that because, in 2012-13, 32% of deportation appeals succeeded.
A number of these cases concern parents with British children or settled children who would be significantly harmed by their parents’ deportation. There are plenty of examples from the children’s consortium and Bail for Immigration Detainees which I will not relate today. However, the 2013 UNHCR report highlighted cases where Home Office decision-makers failed adequately to consider the child’s best interests, including in relation to Article 8 of the ECHR. The Home Office can already prevent repeated appeals by certifying claims as clearly unfounded, but Clause 16(3) will prevent people with arguable cases accessing justice.
The noble and learned Lord gave the assurance that, in exceptional circumstances, the power would not be applied—so what are the exceptional circumstances? It is argued that exceptional funding also provides a safeguard. However, the Joint Committee found in December 2013 that out of 746 people who had applied for exceptional funding, only 15 were granted funding, and two of those were immigration cases. We are back to the same old argument. In the experience of Bail for Immigration Detainees, detainees seldom have the skills needed to make their own applications—I know that the noble and learned Lord has heard this time and time again, but it is true—and solicitors rarely make applications because the work has to be done at the risk of non-payment.
I will give just one case study: that of Simone and Ray. Simone was trafficked into prostitution in the UK for three years and was then convicted of a drug-related offence. Her son, Ray, was a British citizen. He was less than one year old when she was arrested, and nearly four by the time of her release. During her sentence, he repeatedly asked for his mother, cried in his sleep, stopped eating properly and screamed uncontrollably after phone conversations with her.
The Home Office argued that Ray could leave the UK with Simone, but by this time he had close bonds with his father, who could not leave the UK for other reasons. Simone successfully appealed her deportation—but if Clause 16 becomes law, people like her will be deported before they can appeal.
Finally, as we are talking about removals, I heard only yesterday that the Home Office has decided to stop offering assisted voluntary return to anyone held in immigration detention as of today, 1 April. This scheme is operated by Refugee Action, through its Choices service. What is the purpose in ceasing to offer assisted voluntary return to those in detention? Do the Government not appreciate the negative effect this will have on removals and on the co-operation of detainees? I beg to move.
Lord Watson of Invergowrie (Lab)
My Lords, I shall speak to Amendments 16 and 20 in this group, which appear on the Marshalled List in my name.
Amendment 16 would ensure that the Bill recognised that the promotion of the best interests of the child is not simply a matter of the rights to be interfered with being in the public interest but that the promotion of those best interests is, in itself, in the public interest. In its current form, Clause 18 does not allow for proper consideration of the best interests of all children, as required by UK and international legislation. Despite government Amendment 58 reiterating their commitment to the Secretary of State’s duty under Section 55 of the Borders, Citizenship and Immigration Act 2009, Clause 18 does not make clear the need for the best interests of children to be a primary consideration in any Article 8 case involving a child. That includes those who are not British citizens and those who have not lived in the UK for at least seven years.
Amendment 58 does not address the concerns raised by non-governmental organisations, including the Refugee Children’s Consortium, about the lack of an explicit provision in Clause 18 to have regard to children’s best interests. What is required is a provision stipulating what judges must have regard to in the public interest when considering Article 8 of the European Convention on Human Rights in respect of family and private life.
Courts and judges are not under a statutory obligation to comply with the Section 55 duty. Instead, they review the Home Secretary’s decisions and actions in the light of her own duties. The courts have made it clear that children’s rights are a clear public interest consideration in addition to their own personal interests. As the Joint Committee on Human Rights notes in its scrutiny of the Bill, Parliament is entitled to put into primary legislation that which it considers to be in the public interest. The lack of a clear statement setting out the importance of children’s best interests as a factor to be considered creates a risk that children’s best interests will not be taken into account as a matter of public interest to the same degree as those public interest considerations listed in Clause 18. In its evidence to the Bill Committee, the Immigration Law Practitioners’ Association stated that Clause 18 directs attention to some factors at the expense of others. The most obvious missing factor is the best interests of children.
In 2012, the Supreme Court held in the case of HH—UKSC 25—that children’s interests are also public interests and not just private rights, stating,
“although the child has a right to her family life and all that goes with it, there is also a strong public interest in ensuring that children are properly brought up”.
In this respect, the Bill is not consistent with established case law and gives the impression that children’s interests amount to no more than the private and personal interests of an individual and their family. They clearly amount to more than that and this should be reflected in the Bill.
Amendment 20 reflects the fact that “unduly harsh” is an incorrect test of the context of considering what is best for a child, whereas “disproportionate” is known and well understood. New Section 117C of the Nationality, Immigration and Asylum Act 2002, inserted by this Bill and relating to Article 8 of the European Convention on Human Rights, states:
“Exception 2 applies”—
where there is—
“a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh”.
The “unduly harsh” test in relation to children is not consistent with the best interests principles. This test of “unduly harsh” is a legally defined term within the context of refugee protection and internal relocation. I should like to cite an example and I do so in due deference to the noble and learned Lord, Lord Hope. I hope that he will not mind if I quote from a case over which he presided in 2007—the case of the Secretary of State v AH (Sudan) and others. In that judgment, the noble and learned Lord was quoted as having stated in another case:
“‘The question ... is whether it would be unduly harsh to expect a claimant who is being persecuted for a Convention reason in one part of his country to move to a less hostile part before seeking refugee status abroad. The words ‘unduly harsh’ set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally ... it will not be unreasonable to expect him to move there’”.
However, I do not believe that that test can be applied within the context of considering children’s best interests. Surely a child should not be expected to live a relatively normal life judged by the standards that prevail. That is not and, I submit, cannot be a best interests consideration. When considering a child’s best interests, a range of issues need to be taken into account, such as the child’s immediate safety and their access to, and the quality of, vital services such as healthcare and education. In addition, under the UN Convention on the Rights of the Child, every child has a right to be cared for by his or her parents. In fact, Article 9 says:
“States … shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests”.
The audit carried out by the UNHCR last year of Home Office procedures highlighted that there is no systematic collection or recording of the information necessary and relevant to a quality best-interests consideration in family cases. This includes a lack of any mechanism to obtain the views of the child and to give those views weight in line with age and maturity. Research carried out by the Greater Manchester Immigration Aid Unit into unaccompanied children’s asylum cases found that in 24 of 34 cases analysed, the Home Office failed to carry out any determination of the child’s best interests at all. The Joint Committee on Human Rights highlighted similar concerns in its scrutiny of this Bill, noting that without further clarity,
“there is a danger that front-line immigration officials … will be unclear about the relationship between the children duty in s. 55 and the new tests … which use different and unfamiliar language”.
The Government have said that, despite the introduction of tests in the courts, the courts would still be bound by the duty to promote the welfare of children under Section 55 of the Borders, Citizenship and Immigration Act 2009 for all cases involving children. However, Clause 18 is likely to add further confusion, not least for decision-makers, as to how best interests are to be considered. Therefore, I believe that effective judicial oversight is crucial in ensuring that children’s best interests are taken into account in any case involving a child, and these considerations need to be made clear in the Bill.
In conclusion, considering whether it would be duly harsh to separate a child from his or her parent is inconsistent with the obligations to consider the child’s best interests. Perhaps I might invite the Minister to explain just what he understands “duly harsh” and “unduly harsh” to mean. At precisely what point does “duly harsh” become “unduly harsh”, and who decides where the line is crossed? The use instead of the term “disproportionate” at least allows for a balancing exercise within the well established approach to interference with Article 8 rights, which must include consideration of best interests. I very much hope that the Minister will take these points on board and I look forward to his response.
The Earl of Sandwich
My Lords, we have gone over the hour and the Minister has had to deal with a whole range of amendments. The underlying thing has been the primary consideration of the best interests of the child.
It was good of the Minister to respond so quickly to a question which I put rather abruptly. He has given a fairly harsh, Home Office reply but I am grateful for that all the same. There is no doubt about the good faith of the Ministers that we know here; it is the system that they represent. They know that it can never be perfect. In fact, the noble Lord, Lord Taylor, mentioned earlier that improvements are being made all the time. This is the whole point of these debates.
I was not satisfied with the answer. I thought that my amendment would provide a simple subsection reiterating what has already been stated and principles that have already been established. Nevertheless, the Minister has clarified and has been very helpful. I hope that the noble Baroness, Lady Hamwee, will also appreciate that we have gone into the same subject as we did four weeks ago. Yet clarification is helpful to the judiciary and others.
My noble friend Lord Listowel will have to wait a very long time before he can reply to the Minister’s response on Amendment 58, which is at the end of the Bill. However, that new amendment has been a really useful step forward. Meanwhile, I beg leave to withdraw Amendment 15.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
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Lord Ramsbotham (CB)
I, too, welcome the government amendments and repeat something that I have said on earlier occasions about the importance of getting the issues about coalitions right in relation to the criminal justice system. If you look at the transforming rehabilitation revolution, you will find that the Government are trying to encourage coalitions to take on the supervision of offenders. They consist of a large number of different organisations, private and voluntary, and it is important that they are crystal clear on anything to do with coalitions before they are formed to take on that very important public work.
The Earl of Sandwich (CB)
My Lords, I detect self-restraint in the House at the moment, and I know that we need to move on rapidly, but I just wanted to say a word in support of Amendment 39A. I have to repeat what the noble Lord, Lord Cormack, said earlier about the value of charities generally within the political system and the role of networks, which have become so important and have been encouraged by government. If the noble Baroness, Lady Chalker, were here—she could not be here today—she would explain how the Government were siding with charities all the way through the 1980s and 1990s to achieve consensus with coalitions. The idea of attacking even the larger coalitions seems to be against the Government’s own policy.
The noble Baroness, Lady Mallalieu, said on an earlier amendment that a lot of damage had been caused by Part 2, but it must also be said that the Bill has strengthened the charities in opposition to it. That must be a force for good. But one damaging effect of the Bill, which was not intended by the Government, is that if it is unamended, many charities will become more wary in their campaigning. They will in many cases withdraw from the front line. I have been 40 years in charities and church organisations attending party conferences. What would they all be like without those charities displaying their wares, and so forth?
I know that the Government have come quite a long way to meet the smaller charities, but I do not think that they have moved far enough. The noble and learned Lord should recognise the injustice of netting so many legitimate activities just to catch one or two miscreants who would probably be recognised anyway in the context of a local constituency. Charities are usually pretty visible in what they do. The Electoral Commission itself says that we are talking only about a small number. Although the numbers add up and may increase, we are all in danger of exaggerating the number involved. It is the sledgehammer effect.
Surely, when there is disaffection with elections generally and with mainstream politics and politicians, we want more awareness among the public of the range of current non-party political issues. The amendment leads us in the right direction.
Baroness Tyler of Enfield (LD)
My Lords, I rise briefly to support Amendment 39A and, in doing so, very much welcome Amendment 39 introduced by my noble and learned friend. In Committee, I drew on my personal experience of being involved in coalitions of charities both previously and currently. It is very important —Amendment 39A achieves this—that even small and medium-sized charities are not restricted to being involved in only one coalition. I end by giving the example of when I was chief executive of a charity in the field of family relationships. At any one time, with a very small amount of money, we would be involved in a campaign to do with children and young people, a campaign to do with domestic violence, and a campaign to do with older people and the role of grandparents. All of those were important activities. We could never have done that ourselves; we simply did not have the money. That is why Amendment 39 is so important.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
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Baroness Mallalieu (Lab)
My Lords, I put my name also to Amendments 167A and 167B on which the noble and right reverend Lord, Lord Harries, has just spoken. Essentially they are amendments about registration thresholds and I will confine what I am going to say, quite briefly, to that aspect. It is clearly accepted that the thresholds are going to go up from those proposed in the Bill, which are very low indeed. The question is clearly: how far? If the aim is to catch wealthy organisations and individuals and to prevent undue influence on the electoral process by those with money, the response has got to be proportionate, as I am sure the Minister would accept.
As the noble and right reverend Lord, Lord Harries, said, the mesh of the net has got to be set so that small NGOs and charities can carry on with their campaigning work without being frightened off by the fear of the expense and the staff time that registration and its associated bureaucracy—which I hope later we will cut down to a degree—will entail. The larger organisations are to be caught; the smaller ones should not be, so that they can carry on with their usual activity.
The current thresholds under PPERA have done just that; hence the lack of problems arising from the drafting of the definition. This was revealed only by the most recent consultation, because most small organisations simply did not meet the existing threshold. However, those thresholds will not be enough if the activities covered by the Bill, even the non-contentious ones, are included, as everyone agrees that larger staff costs will be included with them.
I remind the House that the Electoral Commission said in relation to this very aspect that,
“we think the Bill’s Impact Assessment under-estimates both the regulatory burden that the Bill would impose on registered campaigners, and the number of non-party campaigners that may need to register with us as a result of the Bill’s provisions”,
and the lower threshold. The Electoral Commission is going to be faced with a great deal more work.
I am sorry hear to that the noble Lord, Lord Tyler, has been having difficulty sleeping. Indeed, the speech from the noble Baroness, Lady Williams of Crosby, on Monday caused me some lack of sleep. She chided me about what I had said about ogres coming out of the woodwork, so I had a further look at it. Because she has just raised the point now, I will say this. She produced shocking figures about what was going on in America and raised the spectre of this somehow creeping across the Atlantic and affecting our electoral process. No specific evidence has been produced for the need for specific constituency spending limits. The Government have produced no specific examples in defence of their argument on this topic—for example, of disproportionate spending in one constituency that has had undue influence on the outcome.
However, this is not the only piece of legislation that deals with this matter. There is also the Representation of the People Act 1983. Even if there were to be targeting of a specific candidate in a specific constituency, that Act covers constituency spending by candidates and also—this needs to be restated—spending by non-party campaigners who have campaigned for or against a specific candidate. What is more, breaches of the Representation of the People Act are the responsibility of the police to investigate, with all the sanctions that follow from that. The Electoral Commission does not have the enforcement powers for these rules. So, if these people exist, we in this country already have the powers to deal with them and the mechanism to do so.
The Earl of Sandwich (CB)
My Lords, I have not been part of the commission, but I support what the noble Baroness, Lady Mallalieu, and my noble and right reverend friend said about Amendments 167A and 167B. I was convinced by these amendments and then, when I heard the noble Lord, Lord Hodgson, with his extraordinary mathematics on inflation, telling us how much it actually costs to put on a show, be it a conference or a different occasion, I was completely convinced. Then the noble Lord, Lord Tyler, said that these things were costing far too much. Has he seen printers’ bills lately and does he know how much 3,000 leaflets will take out of your pocket in no time at all? These figures are still really quite limited, and I hope that the Government have seen sense. I have a feeling that we are not going to hear their answers because they are reserving them all for Report.
The issue I mentioned in relation to Clause 26 was that of smaller charities. The noble Lord, Lord Tyler, was quite right in describing the role of smaller charities. My particular question for the Minister was: what happens if these charities are linked in a coalition? I know that we are going to discuss the coalitions again, but it hinges on this a little bit. Many of these charities which were spawned by the larger charities—Oxfam and Christian Aid—are now growing in their own right but nevertheless have a symbiotic connection and are often seen together in conferences. Will the Government reflect on that effect on smaller charities as well?
Lord Ramsbotham (CB)
My Lords, I support Amendments 167A and 167B. I have two questions for the Government that have not been raised. First, we have had no specific evidence from the Government that the previous spending limits were overly permissive, resulting in undue influence on the outcome of general elections. Therefore, I would be grateful if the Minister would outline what specific evidence gave rise to this clause.
Secondly, because it again comes from the Government, I note that the Electoral Commission thinks that the regulatory burden that the Bill would impose on registered campaigners has been grossly underestimated in the Bill’s impact assessment. With many Bills coming before this House, I have had occasion to question the depth of the impact assessment. It really must go into the impact on others who will be affected by the Bill, and that has not happened in this case.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
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Lord Hodgson of Astley Abbotts (Con)
My Lords, I should like to emphasise the challenge posed to coalition working by the present PPERA rules. I have an amendment in a later group about the practical reporting requirements that flow from it.
My noble friend Lord Tyler laid out the challenges, but the noble and right reverend Lord, Lord Harries of Pentregarth, put his finger on the issue. Our big challenge is to come up with the answer. Charities, particularly smaller ones, will always work in coalitions and therefore we must find a way to facilitate that, for the reasons given by several previous speakers. The noble Baroness, Lady Tyler of Enfield, explained this clearly from her personal experience. I can see that we are not there yet, but I hope that the round-table conference taking place early in January, to which the noble and right reverend Lord, Lord Harries, referred, will produce something that will address the weaknesses of the present system. I also hope that my noble and learned friend on the Front Bench will be able to approach that with an open mind so that we can tease out the right solution to this undoubtedly difficult but fundamental challenge.
The Earl of Sandwich (CB)
My Lords, I have already expressed my concerns about the smaller charities and the noble Lord, Lord Tyler, has articulated this so much better than me. I think that the Minister has been waiting for this amendment to reply to me and to others.
I back up what my noble and right reverend friend Lord Harries has said about encouraging charities to work together. Let us look at the example of slavery, which is in the minds of the Conservatives at the moment. We are rather surprised about that because that campaign comes from the voluntary sector and the Liberal party and not the Conservatives. Why is that? It is because the ecumenical coalition against trafficking and Anti-Slavery International came up with legislation. They have been working on this subject for 20 years, not five or 10 years, and the Prime Minister has embraced it at the forefront of present legislation. I am delighted about that but the Government have a lot of difficulty in the voluntary sector at the moment. If they are proceeding along these lines, they are going to have to think of something else soon.
Lord Wallace of Tankerness
My Lords, the noble and right reverend Lord, Lord Harries of Pentregarth, has proposed an amendment that would reduce the length of the regulated period for third parties from 365 days to six months. The noble Lord, Lord Ramsbotham, has tabled a similar amendment, reducing the regulated period to four months under the banner of “keep it simple”, although as my noble friend Lord Tyler has illustrated, it is perhaps not quite as simple as it might appear on the surface.
I am aware from the engagement in meetings that this is an issue that has come up on a number of occasions and not least because, for the first time, some bodies that might have been getting pretty close to being regulated in 2010 but did not realise it have now realised that there is something that they will have to address. I will explain by way of background the different regulated periods that operate for different elections. The regulated period for UK general elections is 365 days and for devolved Administration elections and European parliamentary elections it is four months. The reason why we have put these in is that we believe that it is not unreasonable that third parties and political parties should adhere to the same regulated period for an election. This is because the campaigns relate to the same election. I am sure, if one thinks about it for a moment, that it would be somewhat unusual and unfair if third parties were allowed to incur unlimited amounts of expenditure campaigning for or against a party or candidates in a period when the political parties themselves would be faced with a limit on their spending. That is the principle that underlies why we wish to keep the periods in tandem.
As we have discussed earlier, particularly on whether the clause would stand part—when we talked about expenditure by a third party, which is ostensibly and is indeed intended to support a registered political party—there could be a scenario where a short third-party regulated period really detracted from the rules on the political parties, as political parties could use these third parties as expenditure vehicles for a considerable period of either six months or eight months. I do not believe that this is the sort of situation that we want to end up with. That said, believing that it would be possible to have the relevant guidance in time before the regulated period starts for the 2015 election, I recognise that there are issues; my noble friend Lord Deben highlighted some of them that relate to the first election under this. Of course there will be a review, which we will come on to but the Government have already indicated that there will be a review post-2015. I hear the points made that there are still concerns with regard to the immediate prospect facing a number of organisations. The noble Baroness, Lady Hayter, made reference to that too.
I can say this in a spirit of consideration but not promise, because the principle involved here is to keep the times so that they march together. Not doing so could undermine an important aspect of the restriction on expenditure by political parties. That is why it is important that we do not disregard that principle and I invite the noble and right reverend Lord, Lord Harries, to withdraw his amendment.
The Earl of Sandwich
My Lords, can the noble and learned Lord explain why he always goes back to parity with political parties? We are not talking about political parties; we are very different in kind.
Lord Wallace of Tankerness
My Lords, I am happy to explain that. The very nature of the expenditure that will fall to be covered by Part 2 will be expenditure that is very much geared towards an election, the same election in which the political parties will be fighting. It would seem rather odd if the political parties themselves are restricted in what they can spend over a period of one year. If, for example, we were to accept the amendment spoken to by the noble Lord, Lord Ramsbotham, for eight months of that year other third-party bodies, some of whom would be endorsing quite unashamedly the policies and perhaps the candidates of one of the political parties, would be able to spend freely without any restriction at all while the political parties themselves are campaigning with restrictions. That is why I make the comparison because it would create a sense of unfairness and imbalance if those who are actually fighting an election, those whose heads are on the block on polling day, as it were, were under restrictions but third parties did not have any such restrictions for a substantial part of that time.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
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The Earl of Sandwich (CB)
My Lords, I first congratulate the noble and learned Lord, Lord Hardie, on the amendment, and my noble and right reverend friend Lord Harries for the work of his outstanding commission; I do not think that anyone has seen such a piece of work from the charity.
Having not spoken at Second Reading, I will beg for just a couple of minutes to put one point to the Minister. These are the most critical of the amendments. They convey the fundamental problem, which is that while the Bill and its predecessor are trying to regulate electioneering, they are actually hitting a whole range of legitimate charitable activities. The Government may not even guess at the damage that will be caused by this, all the way up to the review—which is of course welcome.
I have spent nearly 40 years working with aid organisations, personally assisting in the development of advocacy. It is a vital part of their work, bringing issues of poverty reduction to the attention of the public during an election campaign. Mr Brake told MPs that charities would not be caught by controlled expenditure. I am not sure that the Government yet appreciate that with national, European and local elections, and possibly referendums, all at different times, the Bill will or could hurt charities throughout the five-year period, not just leading up to the election—although we are going to discuss that period.
As the noble and learned Lord, Lord Hardie, demonstrated, there are grey areas everywhere in the Bill, even if we accept the Government’s undertakings in the Commons on definition. I have much sympathy with the Liberal Amendment 160, which is coming up and attempts to exclude charities altogether; however, it may already be too late for that, as they are already regulated under PPERA and the Charities Act. The amendment should attract the Minister, since it makes the point that if the campaign is not specifically related to a manifesto or proposed legislation, it should not be counted at all. It will be difficult enough making the calculation, but at least the Minister should see the point of the amendment. It is much narrower than subsequent amendments and should be easier for him to accept.
On smaller charities, there is a myth that Clauses 26 and 27 would not have an impact on them. As we know from coalitions, there is a close relationship between the larger charities, such as Oxfam and Christian Aid, and the many smaller ones which they themselves have sponsored. However, these may now be more independent and in some cases have grown much larger. So the smaller, specialist agencies are often concerned with single issues such as appropriate technology, fair trade, anti-slavery or other aspects of human rights in Burma, Tibet or Sudan.
Some of the issues are highly political. The noble Lord, Lord Walton, mentioned all-party groups; there are many active all-party groups on specific subjects. These might well be brought to the attention of campaigning politicians. At the same time, the size of these charities, while in some cases bringing them over the proposed threshold—I welcome the Minister’s assurances about the threshold—is not sufficient to justify the added expense and work involved in what I call selective accountability and monitoring in relation to the Bill.
The point about counting volunteers has already been made. It is often the smaller charities that depend on volunteers, especially in times of emergencies. We have also heard about coalitions. In spite of what the Minister said, I feel that they could also be caught by the Bill quite unnecessarily—as the noble and right reverend Lord, Lord Harries, pointed out. I therefore urge the Minister to consider accepting the amendment on Report.
Lord Greaves (LD)
My Lords, I think that this is the first time I have spoken in Committee, so I remind the House of my various interests with campaigning groups and charities set out in the register of interests, and also declare my lifelong activity as an election agent, which, I have no doubt, will continue.
I, too, thank the noble and right reverend Lord, Lord Harries of Pentregarth, and his commission for the outstanding body of work they carried out in a limited time and for the reports they have produced. This is only to the good as we look at the Bill in detail. I also thank the Government for the large amount of activity which has taken place. For example, my noble friend Lord Wallace of Saltaire has met something like 40 representatives of separate organisations to discuss their concerns about the Bill, and we had a letter this weekend from my noble and learned friend Lord Wallace of Tankerness making it absolutely clear that the Government are in listening mode. I hope that noble Lords will not get too tied up in whether this is consultation or not. The fact is that we are scrutinising legislation and that the Government are listening to that scrutiny. We do not always get that in Committee in the House of Lords, from different Governments, and we should make it very clear that it is welcome.
Much discussion is still taking place within coalition circles, within the Government and between the Government and other organisations, not least the noble and right reverend Lord’s commission. That discussion must continue and we must continue to do what I believe the Government, or at least substantial parts of the Government, are now doing, which is to seek a consensus on the Bill that will achieve the objectives behind it and will not have the damaging, chilling effects that are feared by so much of civil society.
We have two main slates of amendments here which come through the different groups. One slate of amendments has come from the commission of the noble and right reverend Lord, Lord Harries, and we have another which my noble friend Lord Tyler has been working on with ferocious energy over the past few weeks. Together they add up, if not to a perfect answer, at least to a very satisfactory means of scrutinising the Bill, by putting forward a number of positive suggestions. I understand that the commission has said that it would like us to take its slate as a package. In practice, as the noble Baroness said, if we come up with something successful at the end of this process, we will end up with a series of compromises, as we always do, but the Bill will not be any the worse for that. There are various other amendments in this group, including three of mine that I will speak to briefly in a minute.
It is absolutely right that the commission chaired by the noble and right reverend Lord, Lord Harries, looked at all this from the point of view of campaigning groups and charities and of civil society. That is the purpose for which the commission was set up. But I hope that it will be recognised that that made the consultation that the commission carried out, and is still carrying out, incredibly valuable as it is, one-sided in one respect—that is, that people involved in fighting the elections, candidates and political parties, were not part of the consultation. When we scrutinise this legislation, we must find the right balance between protecting the interests not just of candidates but of the democratic process itself on the one hand, and preventing damage to civil society on the other.
The dangers that this legislation rightly sets out to prevent and challenge are, first, that at national level we do not see our national politics taken over by the super-PAC-type organisations that we see in the United States, and by what has been described as “big bucks from big boys”—usually boys, but perhaps sometimes girls as well. In other words, we should not allow money to dominate. That money is inevitably from large corporate interests, most if not all of them on the right. We should not allow them to take over politics in this country as has happened to a worrying degree across the Atlantic. Furthermore, we should not allow people to buy particular constituencies simply by throwing a large amount of money at them—far more than the candidates themselves are allowed to spend under the regulations. Those are issues that we will come to later, but that is the basic aim of Part 2, as I understand it. It is very important that we balance that against all the concerns and the proposals put forward to try to address those concerns.
I have three amendments. My Amendment 159C is similar to an amendment in the name of the noble and right reverend Lord, Lord Harries: Amendment 159B. It would exempt from controlled expenditure rules a range of activities related to legislation before Parliament —before devolved Parliaments and Assemblies—and proposals being actively put forward by local government, government agencies and so on. In other words, the normal campaigning and lobbying activities of charities and campaigning organisations ought not to be prevented during the period in which the expenditure is controlled.
Amendment 159D is another probing amendment, more probing than the previous one. It would exempt from controlled expenditure rules any campaigning that was not specifically related to the functions of the bodies being elected during the regulated period. There are obviously major holes in that amendment, and concerns with it, but there is a question as to how far the expenditure controlled by third-party organisations should relate specifically to the functions of the body that is being elected during the election period, and how far it is just general political activity, even if it is totally unrelated to the functions of the Scottish Parliament or whatever it might be.
Amendment 160A would exclude from controlled-expenditure arrangements,
“expenditure”,
that,
“is minor, insignificant, inconsequential or incidental”,
or any similar words that the Minister would like to consider. The question is to what extent there will be in practice a de minimis provision within the Bill and to what extent there will be a requirement to look at whether to some extent, even if it is a very small extent, it might be intended to affect electoral support, and how far it is absolute. It is a similar question to the questions put forward by the noble and learned Lord, Lord Hardie, but on a more de minimis basis.