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

Lord Gardiner of Kimble Excerpts

Monday 16th December 2013 Lords Chamber

I note Amendment 160J in the name of the noble Lord, Lord Tyler, and other amendments in the group and will return to them at a later stage. I certainly support Amendment 165C, which removes the power of the Secretary of State in Schedule 3 to amend Part 1 by order. I have a deal of sympathy with the noble Baroness, Lady Hollins, in respect of research papers and look forward to the Minister’s reply, as well as his reply in relation to the issue of conferences that might unintentionally be judged to be political in the run-up to an election. I hope that when the Minister responds, he will be able to allay the fears of those who have spoken, and will promise that when the Government return on Report, they will have made significant changes to the kinds of spending that count as qualified expenses.

[Lord Gardiner of Kimble (Con)]

My Lords, I thank your Lordships for an extremely wide-ranging debate on qualified expenses in controlled expenditure. I will endeavour to go through all the points that were made. If there are any that I have not picked up on immediately, I will reflect on all of them—as will my noble and learned friend—because clearly there are a number of issues in this group that the Government will certainly want to bring back at Report.

Schedule 3 inserts a new Schedule 8A into the PPERA Act 2000. That new schedule expands the activities on which expenditure by a recognised third party will be controlled expenditure. Under existing legislation, only expenditure on election material made available to the public is controlled expenditure. This is retained as an activity that counts towards controlled expenditure within this Bill. However, the new schedule extends the range of activities that are qualifying expenses for the purposes of controlled expenditure. These include: market research involving the public or canvassing; public rallies and other public events, excluding annual conferences; press conferences or other organised media events; and transport.

Again—I emphasise this—the essential qualification is that these would count as controlled expenditure only if the expenditure could reasonably be regarded as being intended to promote or procure the electoral success of a party or candidate. Where the activities were unconnected—for some other charitable, campaigning or commercial purpose of an organisation, for example—they would not be included.

The list of activities in the new schedule closely aligns the activities of third parties that incur controlled expenditure with those of political parties. This was recommended by the Electoral Commission in its June 2013 report, A regulatory review of the UK’s party and election finance laws: Recommendations for change.

I now turn to Amendment 159G in the name of the noble and learned Lord, Lord Morris of Aberavon. This would amend Clause 26 so that costs incurred by third parties translating materials from English to Welsh or Welsh to English would be excluded. I am very conscious of the Welsh Language Act 1993, and, as I was reflecting on the debate today, I considered precisely what my late friend Lord Roberts of Conwy would have thought about these matters. He was such a well respected figure in this House on all sides, and I am pretty confident as to what he would be telling me now.

It is the case, interestingly, that under that Act—which places an obligation on public bodies—political parties, candidates and third parties do not fall under the definition of a public body. Therefore, there is no legal obligation to translate election materials from English to Welsh or Welsh to English. However, having said that, the Government believe that the Welsh Language Act 1993 includes an obligation to treat Welsh and English on an equal basis and that there is a strong and compelling case for translation costs to be excluded. The noble Lords, Lord Elystan-Morgan, Lord Wigley and Lord Morgan, made that very clear as well, with references to 1,500 years of language and the Act of Union, so the Government will consider how this exclusion would operate and will want to return to this important issue on Report. I hope that that will be helpful to the noble and learned Lord.

I also want to raise the issue of committed supporters. Amendment 160J, in the name of my noble friend Lord Tyler, amends Schedule 3 so that costs associated with sending material to committed supporters would be excluded from the calculation of cost-controlled expenditure. The costs of sending material to members or certain supporters are already excluded, as PPERA and the Bill make clear. The material or activity must be available or open to the public, which for these purposes would not include those members or supporters. As the existing Electoral Commission guidance makes clear, the exact nature of a committed supporter will vary between organisations, but could include regular donors by direct debit, people with an annual subscription or people who are actively involved in a third party.

However, this amendment goes very much further than that: it defines committed supporters as those who have made a donation to the recognised third party, those who have made a direct communication to the recognised third party, or those who have consented to receiving communications from it in the past 12 months. In the Government’s view, this would greatly, and unacceptably, widen the exclusion. At present, the Electoral Commission does not consider people to be committed supporters if they have simply signed up to a social networking site or tools, or to appear on mailing lists that may have been compiled for general commercial, campaigning or other purposes.

The Government believe that the Electoral Commission guidance is the correct approach to outlining a committed supporter. This was also the view the other place took when, in reverting to the existing definition of controlled expenditure, it removed the specific definition of committed supporter from the Bill as introduced. Of course, the Government also acknowledge that in discussion with third parties, from community groups to charities, the need for clear guidance is of vital importance. The Electoral Commission is aware of the important role its guidance plays and is committed to providing such guidance in good time for campaigners.

I now turn to Amendment 160H, tabled by the noble Baroness, Lady Hollins. She said it was a probing amendment, but it would remove election materials from the list of activities for which third parties would incur controlled expenditure. As I am sure noble Lords are aware, the PPERA Act 2000 stems from a report from the Committee on Standards in Public Life. Both that report and Parliament, through the passing of the 2000 Act, made clear that it was reasonable and sensible for third parties who sought to, or could reasonably be regarded as intending to, promote or procure the electoral success of a party or candidate should be subject to regulation. Under the Act, recognised third parties incur controlled expenditure only on election material that is made available to the public and that seeks to promote or procure electoral success. Election material covers items such as leaflets, unsolicited mail to electors, and manifestos. It does not include factual policy documents aimed at policymakers.

As I have three godchildren studying medicine, I am very conscious that the BMA plays a very important part not only in public life but in furnishing the debate on what we all seek to do, which is improve the nation’s health. The noble Baroness, Lady Hollins, will know very much better than I that the BMA publishes factual, evidence-based reports on a full range of issues covering ethical, scientific and public health matters and health service reform. Examples of such documents include publications on child health and well-being, drugs of dependence, transport and health, and a vision for general practice. These publications are factual and, as the noble Baroness said, geared towards policymakers. They are not aimed at the electorate with a view to procure or promote the electoral success of a party or a candidate and do not fall under the regulatory regime set out in the Bill or indeed current legislation.

--- Later in debate ---

[Lord Rooker]

In Australia.

[Lord Gardiner of Kimble]

To answer the noble Lord, Lord Rooker, this is a technique used widely in America. Although it is not prevalent here, if we leave an unregulated space for it we run the risk that we will see it here. I do not think that any of your Lordships would want something like this to take hold as it has in America. By removing market research from the list of activities which incur controlled expenditure, we believe that we open up a potential gap. Therefore, we have these concerns.

Amendment 162, which deals with media events, would amend Schedule 3 so that only press conferences organised by a recognised third party would count as controlled expenditure. Organised media events are included alongside press conferences to capture activities with the media which could be seen as promoting or procuring the electoral success of a party or candidate, but which is wider than just press conferences. We recognise that the normal meaning of “press conferences” is likely to catch most organised media events, but we do not want to leave reasons for doubt as to what may or may not be covered by that specific term. That would create unnecessary ambiguity.

The Government have therefore worked closely with the Electoral Commission and interested parties to ensure that the correct balance is struck in terms of the media activities we are seeking to bring into the regime. We do not want, nor does the Bill provide for, ad hoc dealings with the media to be regarded as controlled expenditure. However, where a third party organises a press conference or other media event which could reasonably be regarded as promoting or procuring the electoral success of a candidate or party, that is activity that should be regarded as controlled expenditure and accounted for by means of transparency accordingly. By removing other media events from the list of activities that count as controlled expenditure, we open up a potential ambiguity and a potential gap in the regulatory regime.

Turning to the amendments dealing with transport, Amendment 163 would amend Schedule 3 so that controlled expenditure would not be incurred in respect of transporting people to a place or places with a view to obtaining publicity. The Government acknowledge the particular issues that this may raise for campaigners or for those working with people with disabilities, and that costs associated with the transport of people with a disability may need to be excluded from controlled expenditure. The Government wish to consider this issue carefully and will revisit this subject on Report.

A number of amendments deal with public rallies and conferences. They would extend the exclusion of conferences to all conferences, not just those held annually, and confirm that costs associated with persons attending a public rally or other public event would not be included as controlled expenditure. The amendments would remove public rallies from the list of activities.

This is so important so I repeat that only public rallies or public events that promote or procure the electoral success of a party or candidates would count as controlled expenditure. The Government listened to the concerns of charities and trade unions and brought forward an amendment in the other place to exclude annual conferences. That is the same exclusion applicable to political parties.

I wanted to say to the noble Baroness, Lady Hollins, that I am assured that all annual conferences of the BMA would be excluded, as would those of any other organisation that had more than one annual conference. Additionally, if a recognised third party were to hire a conference centre and invite only its members or committed supporters, that would not count as controlled expenditure.

However, if a third party were to hold a rally or meeting in a public park or hold a protest in Whitehall seeking to promote or procure the electoral success of a party or candidates, the Government believe that this activity should count as controlled expenditure. I emphasise that the Bill does not prevent such activities taking place, just that such activity is properly accounted for.

I want to refer to the Countryside Alliance, as I spent 15 years of my existence supporting that excellent organisation. I was on the barricades many times with the noble Baroness, Lady Mallalieu, and I think that we had right on our side. But we were punctilious about not promoting or procuring the electoral advantage of a party or candidate. I am conscious that the noble Baroness sits on the opposite Bench from me; in fact the person who chairs the organisation sits in the other place as a Labour Member of Parliament. We were punctilious about these matters.

The noble Lord, Lord Best, spoke about Great Food Debate events. I simply cannot see how they would promote the electoral success of parties or candidates. In other words, I do not see that a reasonable person would suggest that a Great Food Debate was about promoting parties or candidates. They are about engaging in the political process; certainly not about promoting electoral success.

The Government are keen to strike the correct balance because we want to ensure that where there is promotion and procurement of electoral success, there is transparency, it is understood and is open to the public. However, we are very conscious that we need to preserve the freedom to speak out on issues that we expect and want civil society in this country to enjoy. It is part of the essence of our democracy that civil society should not feel that this is a Bill which presents them with these difficulties.

The Government acknowledge, for instance, that there is a case for excluding the costs associated with security and safety around a public rally. A number of noble Lords have mentioned Northern Ireland in this respect, and it comes very much as part of the recommendations made by the Commission on Civil Society and Democratic Engagement. The noble and right reverend Lord, Lord Harries of Pentregarth, raised Northern Ireland in particular, so the Government will consider this issue carefully and return to the matter on Report.

Further amendments have been tabled on staff, translation, accessibility, and security and safety costs. My noble friend Lord Tyler, speaking to his Amendment 165A, talked about whether the costs associated with staff directly employed by the third party would be excluded from the calculation of costs for controlled expenditure on transport, press conferences, organised media events, and public rallies and events. Staff costs would be included for electoral materials, canvassing and market research.

A further amendment from the noble and right reverend Lord, Lord Harries, concerns the costs associated with staffing for the provision of materials in translation or in an accessible form for those with physical or learning disabilities, safety and security measures, and communications with third parties, with committed supporters being excluded. The PPERA Act 2000 has always required third parties to account for staff costs, a point made specifically by my noble friend Lord Tyler. The Bill, while extending the range of activities that may incur controlled expenditure, retains the need for staff costs to be excluded. I know that concern has been expressed by third parties regarding staff costs and by your Lordships today: first, that third parties have to account for these costs while political parties do not; and, secondly, to the difficulties for third parties in calculating staff time. On the issue of third parties having to account for these costs while political parties do not, noble Lords will be aware that when Parliament passed the PPERA Act, it was felt to be transparent and proportionate for a third party to account for staff time. This was on the basis that a third party undertakes activities rather than political campaigning where the third party enters into political campaigning to procure the success of a candidate or party. There was a feeling then that spending on these purposes should be transparent.

All of that said, the Government acknowledge that there are genuine concerns regarding the issue of the calculation of staff costs. It is important that a balance is struck between transparency and proportionate reporting requirements. In terms of excluding the costs associated with translating materials, making materials more accessible to those with physical or learning difficulties—the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Hollins, specifically raised this issue, and rightly so—the Commission on Civil Society and Democratic Engagement covered these points in an extremely valid way. The Government support ensuring that materials are accessible to all electors and they have received representations related to translating materials. We have heard from campaigners, and some very important points have been made about Northern Ireland, particularly by the noble Baroness, Lady Mallalieu. I want to confirm again that the Government will be considering these issues carefully in the light of today’s debate and we will return to them on Report.

The Government also acknowledge that in discussion with third parties from community groups to charities, there is a need for clear guidance; that is of vital importance. The Electoral Commission is aware of the important role its guidance plays and it is committed to providing such guidance in good time for campaigners.

I turn now to the order-making powers and a number of amendments which have been tabled in this regard. The Electoral Commission’s regulatory review, published in June 2013, made it clear that the PPERA Act does not provide the flexibility to update the rules on non-party campaigning through secondary legislation. This is in contrast with the list of items defined as controlled expenditure for political parties, which can be amended through secondary legislation. The Government support the recommendation of the Electoral Commission, and provision has been provided in the Bill. The order-making power, as with other similar powers in PPERA, will apply either after consultation with the Electoral Commission or to give effect to a recommendation of the commission. Parliament will be able to scrutinise and debate any order that is put forward in the usual way. The order-making power is subject to the affirmative resolution procedure. Such a power allows the regulatory framework to respond to changes in campaign activities and methods of campaigning. This flexibility would be greatly reduced and the regulatory regime could be undermined if such changes could be made only through primary legislation.

[Lord Rooker]

I would like to ask the Minister a question. When this was raised by a colleague—I do not know who it was—it related to Schedule 3 which, on page 58 in paragraph 3 of new Schedule 8A, sets out the power to amend Part 1. Is there a connection between sub-paragraphs (1) and (2)? Sub-paragraph (1) reads as:

“The Secretary of State may by order make such amendments of Part 1 of this Schedule as he considers appropriate”.

That stands on its own, but sub-paragraph (2) states that he,

“may make such an order”,

after he has received a recommendation from the commission. Surely it should read that he may make an order “only” after he has a recommendation from the commission. Is sub-paragraph (1) dependent on sub-paragraph (2)? The Minister may not answer me now, but I hope that he will do so at some point because it looks like a real Henry VIII power and it is not explained properly. There is no connection between sub-paragraphs (1) and (2), but I think there should be.

[Lord Gardiner of Kimble]

I suspect that I may want to avail myself of the noble Lord’s very kind suggestion. In order to get the intricacies of this right, I probably need to look at it. It is important that we get this right throughout the process.

Perhaps I should say to the noble Lord, Lord Aberdare, that I think that my noble and learned friend has made it clear that the Government fully intend there to be a review as part of the amendments that will come through on Report. There will be a review after the general election in 2015.

This group of amendments reflects the fact that the Government want to get this absolutely right. Points have been made on all sides of the Committee which the Government will return to on Report. Given the hour, I hope that noble Lords will forgive me that if there are any outstanding points I find in Hansard, I will respond to them.

[Baroness Royall of Blaisdon]

My Lords, perhaps I may ask for a point of clarification. In responding to the questions about the Countryside Alliance and the hunting Bill, I think the noble Lord talked about being very careful not to promote the electoral prospects of a party. However, Clause 26 talks about “prejudicing” the electoral prospects of other parties or candidates. That relates to the Countryside Alliance and the ban on hunting, but I would also cite the example of the demonstrations held against the Iraq war. They could have been seen to be prejudicial to the electoral prospects of a certain party, in that case my own. I would be grateful if the noble Lord could clarify that either this evening or on a future occasion, because it is a terribly important point.

[Lord Gardiner of Kimble]

I will want to reflect precisely on that but will just reaffirm that the Countryside Alliance was punctilious because it was an apolitical organisation. The person who chairs it is the Member of Parliament for Vauxhall, and I very much doubt that there was any suggestion at all that she was in any way going to be subject, shall we say, to an attack for an anti-Labour stance. I will reflect on the two points that the noble Baroness has made.

In conclusion, I will respond to any outstanding points, but at this juncture, I wonder whether the noble and learned Lord might consider—

[Lord Harries of Pentregarth]

Before the Minister sits down I express my appreciation of the fact that he has obviously given very detailed attention to a lot of very specific points and has indicated he will be responsive to them. I would just urge him on one thing. A particular concern for charities and campaigners, which he perhaps did not emphasise much, was this overall question of staff costs. They believe that it either is unworkable or would impose a huge regulatory burden. Will he take seriously the recommendation of the Electoral Commission that, for the 2015 election at any rate, they are excluded altogether?

[Lord Gardiner of Kimble]

I will want to reflect on that particular point. I am not in a position to say how the staff costs issue will be dealt with but I reassure the noble and right reverend Lord that it is part of the considerations. Perhaps I might ask the noble and learned Lord again whether he might feel in a position to withdraw his amendment.

[Lord Morris of Aberavon]

My Lords, I welcome the Minister’s very careful reply and thank him for it. I will withdraw my amendment, but take the opportunity, since Wyn Roberts was mentioned, to say that he was a great and distinguished Member of this House and a friend to many noble Lords, in my case long before he became a Member of Parliament. His long tenure in the Welsh Office is reflected in part—and only in part—by the 1993 Act, to which I have referred and which will always be his memorial in Wales. However, my case of course goes further back than that, to the 1967 Act on the Welsh language, introduced by Cledwyn Hughes. Furthermore, even the 1942 Act, referred to by my noble friend Lord Elystan-Morgan, dealt specifically with the issue of costs in the courts.

The Minister has told us that there is a strong and compelling case for costs to be considered and that the Government will want to return to that point. I listened to that and am grateful for it. I am surprised that the Welsh language issue was not taken into account in the preparation for this Bill. That perhaps shows that the Bill, as we go on to debate various amendments in Committee, may become more and more unworkable. However, on that basis, I beg leave to withdraw my amendment and thank the Minister for his careful consideration.