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

Lord Cormack Excerpts

Tuesday 28th January 2014 Lords Chamber

[Lord Tyler]

My Lords, I regret the position that we seem to have reached now on constituency limits. Your Lordships’ House may recall that I proposed a very simple amendment on this issue in Committee and on Report. I suggested then that only election materials directed at electors or households in particular constituencies, or telephone calls to electors in those constituencies, should count under the specific constituency limit. That was very simple.

The Government argued that that approach was too simple and excluded too much activity, particularly the potential for handing out leaflets in a town square. The noble and right reverend Lord, Lord Harries, has been diligent in attempting to deal with that problem, but I think that in the process we have been sent round in a circle. Sending information to a household is an easy test, because it is easy to know where a household is and therefore in which constituency its occupants are likely to vote. However, handing out information in a public place is different, as has been indicated, because people move around and could be from all sorts of different constituencies.

In the amendment in the name of the noble and right reverend Lord, Lord Harries, we are faced with a further test: can it reasonably be inferred that the third party selected the relevant electors or households, or both, or otherwise distributed the material wholly or substantially to contact electors in the particular constituency or constituencies and not a wider section of the public? In other words, did the organisation, in doing what it was doing, mean to do it? That is quite a difficult question for anyone to answer, let alone the Electoral Commission. I am still not convinced by that and I am particularly not convinced about it in relation to election materials that are sent to households. It is perfectly clear that such materials would be constituency campaigning, and no extra test should need to be applied for such campaigning to count under a constituency limit. So this is a muddle.

The Bill as it stands says that,

“the effects of controlled expenditure are wholly or substantially confined to any particular constituencies or constituency if they have no significant effects in any other constituency or constituencies”.

I had hoped that the issue of so-called “significant effects” could be done away with—it is extremely difficult to adjudicate on that—but neither the amendment nor the Government’s position appears to do so. The amendment adds the additional test I referred to just now, and I certainly do not think that it helps in terms of clarity and transparency.

I want to put on record again my continuing concern that in raising the threshold for registration, which was welcome on a national basis, we have got ourselves into a further muddle on the application of constituency limits. This is a classic case of unintended consequences resulting from a late-stage concession.

Mr Andrew Lansley, the Leader of the Commons, put this very clearly in the other place just last week:

“Campaigners may now spend the entire constituency limit of £9,750 at any time during the regulated period, or just in the last few weeks before the election if they so wish. That makes it less restrictive and easier to comply with”.—[Official Report, Commons, 22/1/14; col. 352.]

What he did not acknowledge is that campaigners who are spending entirely in just one or two English constituencies could still spend up to just below that limit—£9,749.99—in each of the two constituencies and not even register because the threshold is £20,000.

A trade union, a maverick millionaire with an anti-European bee in his bonnet or, even, another group wanting to influence the outcome in a marginal constituency could spend serious money without anybody knowing until it was too late. So much for transparency and accountability. Under the radar, such intervention could take place without either the amount spent or who paid for it being disclosed. That remains a mistake, an unfortunate loophole weakening these measures in the Bill.

At Third Reading, I set out a simple way in which to improve the position so that those campaigning in one or two constituencies would have to register at £5,000 or, if that was thought to be too low, at least at a lower figure than the £9,750 spending limit. That would have made for the continuum that I described in that debate, where registration occurs at point X and the limit on spending occurs at point Y. The Electoral Commission, on whose advice we have to rely in matters of this sort, specifically advised that X and Y should not be in the same place, and I very much regret that the Ministers in both Houses have not been able to address that point.

These issues can really now only be dealt with in guidance from the Electoral Commission, and I wish it luck with that. As my noble and learned friend Lord Wallace of Tankerness said earlier, we look forward to some very substantial round-table discussions, and I hope I may be able to play a small part in them because I think this is an extremely important issue.

The introduction of a constituency limit on non-party expenditure is an extremely important principle, and really the most important measure in Part 2. I am sure Members of the other place, when they are faced with very considerable sums of money being invested in trying to unseat them, will agree with that. I welcome it for the fact that it is here in the Bill, even though I think there were two improvements that could still have been made to it. I believe those issues will now be central to the post-legislative review of the Bill after the 2015 election. I look forward to that review.

[Lord Cormack (Con)]

My Lords, this is a case of confusion worse confounded, so I am very much in sympathy with the points made by my noble friend Lord Tyler in that respect. I thank my noble and learned friend Lord Wallace of Tankerness. He has been exemplary in the way that he has sought to respond and consult, but he has been in a bit of a straitjacket for two reasons.

First, as has been said so often during the course of this Bill, if ever a Bill needed pre-legislative scrutiny it was this one, but it did not get it. That decision was taken probably at a pay grade above that of my noble and learned friend Lord Wallace of Tankerness, but it was a mistaken decision.

The other problem that we face, and here I make a plea to the Minister, is that we passed these amendments in this House last week and within 24 hours they were reversed in another place. That is no way to treat your Lordships’ House. There should have been wider consultation and discussion. Clearly, my noble and learned friend Lord Wallace of Tankerness had fruitful, although not totally successful, discussions with the noble and right reverend Lord, Lord Harries. For that we should all be grateful, because the noble and right reverend Lord did so much with his commission and in other ways to try to improve this Bill. However, those discussions, however well meant and however protracted, were not enough. There should have been a proper opportunity for real discussion before we had to face the answer from the other end of the corridor. This is no way to treat your Lordships’ House.

As far as this particular series of amendments is concerned, we now have to rely on those round-table discussions. I am glad that the Minister felt that that was a useful suggestion and am grateful to him for acting on it and discussing it with the Electoral Commission already. I hope that those discussions will take place and that they will take place soon, but that they will not be rushed, because this is an extremely complex and difficult situation.

I know very well why the Minister said what he said this afternoon, and I also understand the argument elegantly put by my noble friend Lord Tyler. This is complex. All of us who have stood for election to the other place, or indeed for election to local councils, know that the distribution of leaflets is an inexact science. When you are doing it outside a shopping centre or a railway station or other places where people congregate, you have no idea to whom you are giving the leaflets and which constituency they come from. You have a rough idea that most of them may come from your own constituency, but many of them will not.

Let us have these discussions. Let us hope that they are fruitful. Let us hope that they can build upon the imperfect base that this Bill provides for them. Therefore, let us move on this afternoon.

[Baroness Mallalieu (Lab)]

My Lords, I rise briefly to support the amendment of the noble and right reverend Lord, Lord Harries. This amendment is plainly a compromise. It does not frustrate the intention of the Government to impose strict constituency limits. That is accepted in the amendment. It responds to the concerns of Ministers both here and in the other place that not all activity had been regulated; now it is. It meets exactly the objection of the Commons. It now includes campaigning activities of all kinds that are clearly targeted at a particularly constituency or constituencies to influence voters.

Above all, the amendment has the merit of clarity for the campaigners themselves, is more practical and is more readily enforceable. I employ, if not the exact words then the spirit, of the wise advice of the noble Baroness, Lady Williams of Crosby, at an earlier stage, that we should not reject an improvement in pursuit of perfection. There can be no perfection in this Bill because it has been conducted at such speed. However, this is a simple improvement that I hope that this House will insist on.