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

Lord Elystan-Morgan Excerpts

Wednesday 15th January 2014 Lords Chamber

[Baroness Mallalieu (Lab)]

My Lords, my name is added to Amendments 34 and 40 in this group, which I support. To my mind, Clause 26 goes to the heart of the damage that the Bill as it stands has the ability to do to free speech, to the right to campaign and to the right to protest. It exposes what I believe was an unintended consequence of a Bill which, as we have already heard, was placed before Parliament in haste and without proper consideration.

Clause 26 has the capacity to prevent any campaigning organisation mounting a major campaign against a Bill before Parliament in the regulatory period proposed —in other words, from September this year to May 2015 and, as others have said, for one year in every five thereafter. If Clause 26, together with the rest of the provisions in the Bill currently proposed by the Government, including today’s government amendments, had been in force in 2005, because of the 60% spending limit reduction and the inclusion of staff costs in the expenditure that has to be accounted for, it would simply not have been possible, for example, to mount rallies and marches on the scale organised by the Countryside Alliance—of which, I remind the House, I am president—all of which took place in what would have been the regulatory period for the 2005 election. I suspect that other major protests, such as the Stop the War march, would also have been troubled by the spending limits.

Although it is defective, PPERA was liveable with because the expenditure limits were set at a level which did not capture the activity of most campaigners and because staff costs did not have to be included in returns. Campaigners were therefore able to live with the legislation. However, this is not so with Clause 26 as it currently stands. As the noble and right reverend Lord, Lord Harries, said, it provides an opportunity for a Government to reserve the introduction of particularly contentious legislation to the year before an election—the regulatory period—knowing full well that opposition will be seriously restricted by the financial limits imposed under the Bill. While I accept that opposition would not be wholly silenced, it would, effectively, be seriously curtailed.

For those who have not followed it as closely as others, political campaigning under the Bill does not necessarily involve campaigning for or against a particular candidate or party. I prefer to call that “Political” campaigning with a capital “P”. Under the Charity Commission’s guidance, no charity is permitted to do that. The Bill goes further and restricts what I call political campaigning with a small “p”: in other words, campaigning on a policy, which is what many charities do. You do not have to make any mention of a particular party or candidate to be caught by the Bill, but you will be if your campaign can reasonably be regarded as intended to promote or secure electoral success, even if it can be regarded as intending to achieve some other purpose too. It does not matter that your campaign is long-standing if it fulfils those criteria. As the Minister has repeatedly said, the test is an objective one. So it is also irrelevant if your intentions, as the campaigner, were solely concerned with the issue and not with the election.

The current guidance of the Electoral Commission suggests that where, for example, one political party allies itself with the campaign of a particular organisation, it does not necessarily mean that the campaign and its material become regulated, but if there is a change in the scale and nature of the campaigning it may well do so. However, what if a party in government introduces a contentious Bill, during the regulatory period, which directly impacts adversely on your existing campaign? How can a campaigning organisation reasonably not draw attention to the fact and campaign vigorously against it? Indeed, why should it not?

Legislation before Parliament will, of course, reach a conclusion one way or another with Prorogation. The campaigning directed at legislation, albeit during the regulated period, is aimed not at the election but at something which will have concluded by election day—indeed six weeks beforehand—with Prorogation. A way must be found to enable the people of this country to express the strength of their feelings about proposed legislation at any time in the course of a Parliament. I hope that the Minister, who has repeatedly said that it is not the Government’s intention to stifle protest, will agree to take the amendment away for urgent discussion with the Electoral Commission and return next week, if not with an amendment to meet this real objection to Clause 26 then at least with an unequivocal indication of guidance to be given to permit legitimate campaigning in these circumstances. As the Minister will know, it is not enough for him to make some form of Pepper v Hart statement in this House because the courts, in due course, will not look at what is said in the debates of this House unless the legislation is itself unclear or ambiguous. The Bill is perfectly clear in what it says in that respect.

If the Minister cannot do either, I regret that we would be better off, for the 2015 election, to continue with PPERA until a proper Bill can be produced and Clause 26 should go completely.

[Lord Elystan-Morgan (CB)]

My Lords, I support Amendment 35 in the names of my friend the noble and learned Lord, Lord Morris, my noble friend Lord Wigley and myself. The case has been put clearly and in very great detail by the noble and learned Lord. I am sure that on the only real issue, the Minister could dispel all doubts very easily, as the Government are showing obvious good will for the Welsh language. I was extremely appreciative of the words of the noble Lord, Lord Gardiner of Kimble, on 16 December when he reiterated the point that many of us have made; namely, that the Welsh language is one of the oldest living languages in Europe. It has been spoken for more than 1,500 years.

Would it not be churlish if the whole concession made by the Government were limited only to the fees paid to a translator—that is the issue—and did not include all other costs which are consequential or involved in translation? That clearly was the intention of the Government and, if there is any doubt whatever in the matter, I would like to see them make assurance doubly sure in that respect.

The noble and learned Lord, Lord Morris, speaks with the authority of a former Attorney-General. Indeed, he is clearly of the view that the words in Amendment 44 are wide enough to encompass exactly what is required in this case. However, if there should be any question of dubiety or it is necessary to remove any peradventure of doubt, it seems that it would be an easy matter to cure this small anomaly by Third Reading.

This is a small skirmish in relation to the Welsh language, which has suffered many attacks and anomalies in the 478 years since the Act of Union 1536. The field of endeavour still remains redolent with possibilities. One obvious campaign that will have to be fought some day is in relation to the right of a person in Wales to be tried by a jury in the Welsh language in an appropriate case, bearing in mind that a tribunal of fact such as a magistrates’ court, dealing with 98% of cases, is entitled to do that and does so under the 1967 Act. I hope that such an issue will be raised before too long in this place.

[Lord Horam (Con)]

My Lords, first, I thank the noble and right reverend Lord, Lord Harries, for welcoming the amendments made by the Government. He was characteristically generous about that and he gave quite a long list. Secondly, I thank my noble friends for what they have done, despite being incapacitated for a period, in bringing amendments of the scope that there has been in this case. Certainly, I, as a supporter of the Government, have been surprised by the extent to which the Government have agreed to the amendments originally put down.

I take the point made by my noble friend Lord Cormack that the Government were deficient in the way in which they failed to do pre-legislative scrutiny. One has to agree that post that situation, with the pause and with the extent of the amendments that the Government have put down in the past few days, they have responded generously to the points fairly made by Members on all sides of the House.

In his short remarks, the noble and right reverend Lord, Lord Harries, mentioned Amendment 34 in particular. He said that, for instance, if a new Bill came before Parliament during the regulatory period from September 2014 to the general election in 2015, it would be a big issue in any particular constituency and that therefore the Bill would inhibit discussion of the new town in that constituency, which would be wrong.

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[Lord Tyler]

My Lords, my name is also on the amendment. I will make a slightly different point from those of other noble Lords who have spoken to it.

Public service in a parliamentary democracy is an honourable activity. I look around the House, and I could say exactly the same thing about the other place, and see a great majority of people who give of their time, talents and careers, and sacrifice their family life, to public service. That is something that we should recognise as being an extremely important part of our civic life.

Yet it is absolutely true, as noble Lords have already said, that it is somehow thought that to be active in politics is less reputable than, for example, supporting a charitable or voluntary organisation; many of us do that as well. That is exaggerated, underlined and repeated every time one of us contributes something to our local church or favourite charity and gets respect from the tax system for so doing, in exactly the way that the noble Lord, Lord Campbell-Savours, has described. If politics is an honourable activity, why are we not allowing our fellow citizens to recognise that and, in their own way, be more active participants through the gift aid system?

It is not just because of the way in which politics has been supported in recent years by bigger and bigger cheques from smaller and smaller numbers of people, but also because millions of people feel disenchanted by and disconnected from the business of politics, that we have reached such a low reputation in the public mind. It is far more important to engage and incentivise millions of people than to engage and incentivise millions of pounds. In those circumstances, it is perhaps worth reminding your Lordships’ House, in addition to the points already made by my noble friend Lord Hamilton, that the taxpayer already makes a huge contribution to the business of politics. For example, the Royal Mail free delivery of election addresses for every single party and contestant in the European parliamentary election in May will cost the taxpayer something between £30 million and £40 million. The sums that the noble Lord, Lord Campbell-Savours, is referring to are a drop in the ocean compared to that. Yet it is far more likely to engage the individual citizen in the business of politics than the necessity for every single elector to receive a separate delivery from each of the parties.

It is perfectly true that there are already a number of proposals for a wider reform of the funding of political parties. Indeed, last year, I, along with colleagues from two of the other parties, produced a draft Bill that would have incorporated the latest proposals of the Committee on Standards in Public Life on this wider issue. We will not move in that direction between now and the general election but, in this modest way, we could put down a marker that we believe that the actual, practical financial support of our fellow citizens for the business of politics is just as honourable as their support for a charity or a church. It would be a very welcome development.

[Lord Elystan-Morgan]

I feel deeply privileged to belong to such a broad church as is suggested by this amendment. I little thought that I would have the privilege of standing in the same rank as the noble Lord, Lord Hamilton, and the noble Lord, Lord Tyler, but I am utterly sincere in the support that I give to the amendment in the name of the noble Lord, Lord Campbell-Savours. When he very respectably sought to accost me some days ago to support this matter, I had misconceived the situation. I thought he was seeking to place political parties on a charitable basis, which of course would have been utterly improper. The definition of charity, however impractical it may be in the modern period, is well laid down in the statute of Elizabeth I and in the authority of Re Pemsel, which I still remember from my student days.

That is not at all what the amendment is about. It is a question of what fuel there should be available in a democracy to any political movement. That fuel, I suggest, is the united will of millions of people, of government, opposition or a third force, or a fourth, for that matter. That fuel is the desire and hopes of millions of individual people, possibly for tens of thousands of different reasons, but it is the amalgam of that united force that gives politics significance.

If you interfere with that system from above by the injection of vast amounts of money, you corrupt that system. It was Oliver Goldsmith, in the 18th century, who had these words:

“Ill fares the land, to hastening ills a prey,

Where wealth accumulates, and men decay”.

In this case, wealth will diminish completely the significance of democratic politics. Now, we will say, “That is highly idealistic and immensely impractical”. It may well be, but we are deeply grateful to the noble Lord, Lord Campbell-Savours, who is a brave, iconoclastic, reforming character and to whom the House owes a great debt.

In America, in the two elections that President Obama has won, it may very well be that there were tactical and highly materialistic reasons why he chose to rely on millions of people rather than on the support of a few wealthy, almighty subjects. Be that as it may, it gave those campaigns impetus and significance. That is exactly what this amendment proposes. It may very well be that the amounts that are mentioned could be debated high and low. That does not matter at all. The significance is that we wish to see politics as an amalgam of millions of people with desires supported, we hope, by the substantial subvention of most of those people.

[Lord Cormack]

My Lords, I have always believed that public life is a vocation. I greatly regret the decline in membership of political parties over the nearly 44 years that I have been in the Palace of Westminster; I touched upon that in an earlier amendment today. We do not know the precise figures, but our three major political parties in this country together have probably less than a quarter of the membership of the National Trust. That is a dismal statistic, which we should all take to heart. However, we have to recognise the realities. One of those is that if the proposals of the noble Lord, Lord Campbell-Savours, were adopted—and in principle I support them—they would not have an immediate and enormous transforming influence. I am glad to see him nodding assent.

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[Lord Cormack]

Of course we are permitted to do that, but at the same time it is not unreasonable to talk about the practicalities. The fact of the matter is that if we have a vote tonight, this amendment will be very heavily defeated. It will not advance the cause. Whereas if we do not have a vote tonight, the statement of the noble Lord, Lord Campbell-Savours, which I believe not to be hyperbole but to be accurate—that there are many, many members of your Lordships’ House who are sympathetic to this point of view—will stand on the record. What will stand on the record if we have a vote is that because of a very, very small number of people, for a variety of reasons—one of them being that this may not be the right vehicle for such an amendment—the figures will not be encouraging to our cause.

I end by pleading with noble colleagues in all parts of the House that we seek in our respective parties to begin a campaign to advance this and that we talk to our colleagues in the other place as well. That is crucially important, as they are the people who get elected. Tonight is not the moment to be heavily defeated when we know, and the noble Lord in particular knows, that there is such widespread sympathy for the principle that he has very reasonably advanced.

[Lord Elystan-Morgan]

Surely—

[Lord Gardiner of Kimble]

My Lords, I apologise to the noble Lord, but I am very conscious of the Companion and I am very conscious that we are at Report. I sense that noble Lords would like to make progress. I apologise for intervening.