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

Lord Hart of Chilton Excerpts

Tuesday 22nd October 2013 Lords Chamber

[Lord Hart of Chilton (Lab)]

My Lords, there will be many echoes and repetitions this afternoon and evening, and I make no excuse for joining in because the issues are so important. As has been mentioned, I am a member of your Lordships’ Select Committee on the Constitution, whose report was published last Friday. On the same day, the Joint Committee on Human Rights published its report and prior to that on 5 September the House of Commons Political and Constitutional Reform Committee published its report. All are cross-party committees and all are agreed on their conclusions and recommendations. All are highly critical of the Bill.

Three common issues emerge. First, once again, the Government have introduced a Bill without adequate consultation and scrutiny, not least without pre-legislative scrutiny. As my noble friend Lady Jay of Paddington pointed out, the Constitution Committee has repeatedly stressed the importance of proper scrutiny and consultation. That is important for the reputation of Parliament and the quality of legislation itself. Any failure to do so undermines public confidence, particularly in the case of Bills of constitutional importance. This is such a Bill because it directly affects the ability of people and organisations who wish to engage with the Government and participate in political and electoral campaigning to do so. Freedom of expression and freedom of assembly are rights which lie at the very heart of our constitution. Any threat to these would not only infringe Articles 10 and 11 of the European Convention on Human Rights but be contrary to fundamental common law. Some say that this Bill does just that, and I have seen a leading counsel’s opinion which states that there are grounds for a legal challenge on grounds of incompatibility.

A second but connected theme emerging from the reports is that throughout the Bill there are problems of definition, both individually and collectively, which have caused great uncertainty and could lead to unforetold consequences. For example, broadening the scope of controlled expenditure and at the same time lowering its cap, the definition of consultant lobbying and the scope of the Bill have all raised fears and concerns which the lack of proper scrutiny and the speed with which this legislation is being catapulted forward have made worse.

A third theme, which has already been mentioned, is whether, in the absence of a clear rationale, Part 2 is necessary at all, and that what is being proposed is quite disproportionate. The Joint Committee on Human Rights states at paragraph 60 of its report, to which the noble Baroness, Lady Kennedy of The Shaws, drew attention:

“We are concerned that the lack of understanding and clarity about the practical effects of the Bill has led to widespread concern that third parties may be dissuaded from participating in campaigns with a potential ‘chilling effect’ on free speech and freedom of association of third party campaigners”.

Judging by the letters and e-mails that I have received, I believe that it is quite right. For example, legal aid, access to justice, human rights and examples of unjust law are all likely to be election issues. Under current definitions, a third-party campaigner on any of these issues is exposed to the risk that his or her campaigning activities could be regarded as intended to promote or procure electoral success for a party or candidate even though it is accepted that he or she had no such subjective intention to do so or that he or she did not name any party or candidate or that he or she was engaging in the campaign for its own sake. Such a result cannot be intended, but that is an example of the uncertainty which has been caused.

The Constitution Committee also drew attention to Clause 35 extending the regulatory duties of the Electoral Commission, which has expressed concerns about the rationale for it and whether it has the resources to fulfil the extended obligations effectively.

As to my personal view, I regret to say that I believe this Bill, and the way it has been processed, is a rather shoddy piece of work which has caused in its slipstream much concern and uncertainty. The noble Lord, Lord Tyler, seems to think that it is a giant torch shining light on dark cupboards. To me it brings dark clouds and obscurity. I believe that it requires far more scrutiny than the speed of its planned parliamentary timetable will permit. Accordingly, I agree with the Joint Committee when it suggests that the Bill should be paused and submitted for more extensive scrutiny and greater consultation. Alternatively, of course, Part 2 could be dropped altogether. There is a need for a Bill, but this is not it.

Government’s New Approach to Consultation: “Work in Progress” (SLSC Report)

Lord Hart of Chilton Excerpts

Monday 11th March 2013 Grand Committee

[Lord Hart of Chilton]

My Lords, I, too, am a member of your Lordships’ Secondary Legislation Scrutiny Committee, whose 22nd report for 2012-13 on the Government’s new approach to consultation we are considering today. The report was published in January this year and responded to by the Government in February, and here we are debating the matter in early March. Unlike in the previous debate, there can be no complaints about tardiness in that respect; on the contrary, compliments, not brickbats, are due to the usual channels. I am in complete agreement with the speech by our chairman, the noble Lord, Lord Goodlad. I pay tribute to his distinguished chairmanship of the committee, not just on this occasion but throughout his tenure.

Accordingly, I simply wish to emphasise and repeat some of the key issues that have arisen. First, I was very surprised that the Government, in bringing forward what they called new principles of consultation, failed to carry out any consultation themselves. In my view, the importance of the proper process of consultation in initiating new or revised policy cannot be underestimated. Much of my earlier career was spent reading and responding to consultations so I suppose I have a special interest, but proper consultation, in my view, is the essential oil for the engine of government. It test-beds the underlying principles with those most likely to be affected. It checks the support or opposition that will be forthcoming. It affords the opportunity to discover mistakes in assumptions, methodology or technical background. Last but by no means least, it forms part of a healthy participatory democracy; its presence strengthens confidence in government and its absence weakens democracy itself.

It follows that the process of consultation must afford sufficient time for views to be obtained, analysed and, in certain cases, responded to. Any perceived short cuts risk confidence being eroded or lost altogether. So, in the absence of any prior consultation exercise, the committee carried out its own by calling for evidence and, as the noble Lord, Lord Goodlad, has said, we were gratified by the extensive and constructive response. There was certainly no doubt about the importance that witnesses placed on consultations, but there was some scepticism about whether the Government shared that view. In particular, there was criticism over the time allowed to participate. There was a preference for 12 weeks for issues of importance or complexity, with a minimum of six, and the period selected should not fall over bank holidays, summer holidays or periods of peak activity for the target groups.

Prior consultation was something that the Government should engage in with key stakeholders to seek a consensus on the broad outlines of the matters to be consulted upon. With a significant percentage of the public not connected to the internet, the approach of “digital by default” left some excluded and others constrained. There was a feeling that the Government sometimes failed to realise the complexity of some of the issues being consulted upon and the capacity of organisations to respond with speed. There was often a lack of response to consultations once they had taken place, leaving an impression that the consultation process was just an exercise to be got through as quickly as possible.

Our recommendations to the Government recognised the strength of many of these issues, and suggested ways in which the principles could be improved. Our conclusion was that the new principles, in many respects, were failing to provide the consistency and transparency that the public are entitled to look for in consultation exercises. Accordingly, we urged the Government to launch an independent external review of their new approach to consultation without delay, meaning a start in January and the publication of findings by Easter this year. Although the Government have accepted the principle of a review, they are not treating the matter with the urgency that we recommended and that it deserves.

For my part, I have misgivings about whether the Government, even now, have really appreciated the important part that consultations play in the formulation of policy and in winning the confidence of the public, which was one of the avowed intentions in forming the coalition and embarking upon office. Speed is not the prerequisite hallmark of good governance; full and proper consultation most certainly is.

Electoral Registration and Administration Bill

Lord Hart of Chilton Excerpts

Wednesday 23rd January 2013 Lords Chamber

Moved by

[Lord Hart of Chilton]

1: Page 5, line 26, at end insert—
“( ) In section 3(2)(a) of the Parliamentary Constituencies Act 1986 (timing of Boundary Commission reports), for “before 1st October 2013” substitute “before 1st October 2018 but not before 1st September 2018”.”

[Lord Hart of Chilton]

My Lords, this amendment and those grouped with it make a number of changes to Clause 6, which was inserted by this House in Committee. They are in my name and those of the noble Lords, Lord Rennard, Lord Kerr of Kinlochard and Lord Wigley. The Government have assisted with the drafting of these amendments to ensure that the meaning and effect of the new clause is entirely clear and effective, and I expect to hear that the Minister agrees with that.

Further, the secretary to the Boundary Commission for England has indicated to me that all four Boundary Commissions would welcome the changes made by these amendments to ensure that the Boundary Commissions are certain about what the legislation requires of them. Therefore these amendments make a number of changes to remove any ambiguity from the meaning of Clause 6 and generally to tidy up the clause while ensuring that it still achieves the intended outcome. There is no change of substance whatever, and I ask the Minister to confirm that he agrees.

In particular, this amendment amends Clause 6 to ensure that there is clarity on which electoral register is to be used by the Boundary Commissions in the boundary review and on by when the commissions have to report. It specifies that the Boundary Commissions must submit recommendations to Ministers not before 1 September 2018 and before 1 October 2018. Taken in conjunction with the provisions in the PVSC Act, it would be clear that the electoral register as at 1 December 2015 would be used in this review. The formulation of the amendment makes it clear that the current review, which is based on electoral register data as at 1 December 2010 is cancelled as the boundary review under the clause would be required to be based on data as at 1 December 2015. Again, I ask the Minister to confirm that this is his understanding.

The amendment seeks to ensure that the effect of Clause 6 is clear and that necessary consequential changes are made, and I ask the House to accept this amendment.

As to other changes made by the amendments, they provide, first, that the Boundary Commissions would not have discretion to consider inconveniences attendant on boundary changes as a factor when drawing up boundary proposals for the review that must report before 1 October 2018. The PVSC Act provides that the discretion to consider inconveniences would be disapplied for the purposes of the first review under the changes made by the PVSC Act. This is because there would inevitably be more inconvenience attendant on the first review under the PVSC Act as it reduces the number of constituencies from 650 to 600 and, for the first time, it applies equality of electors as the overriding principle in drawing up constituencies. As the boundary review under Clause 6 would, in effect, become the first review under the PVSC Act, it is appropriate that we disapply this rule for that review, in line with Parliament’s intention two years ago. Does the Minister agree?

Secondly, it amends Section 14(3) of the PVSC Act to provide that the review that this House called for into the effect into the reduction in the number of constituencies provided for under that Act is now scheduled to take place in 2020 after the 2020 general election, and not in 2015. The Electoral Commission maintains that it would make no sense to review in 2015 a reduction that would not—in the Bill we have to send to the Commons—take place before 2020. I agree with that. Does the Minister?

Thirdly, an amendment would ensure that Clause 6 would amend the Parliamentary Constituencies Act 1986 on the timing of boundary reviews, instead of the PVSC Act. That is a technical drafting point.

Finally, an amendment would make a consequential change to the Long Title of the Bill to explain that it amends the Parliamentary Constituencies Act 1986. I beg to move.

[Lord Wigley]

My Lords, very briefly, I support the amendments moved so ably by the noble Lord, Lord Hart, to which my name is attached. I will not go into the details because they have been well explained.

However, it is quite understandable that when an amendment of the sort that was moved in Committee finds its way through to the Bill there are consequences that nobody has thought out. My understanding is that this will avoid further amendments being necessary in the other place and that this will therefore, hopefully, avoid ping pong occurring with the Bill.

I understand that the four Boundary Commissions—not only for England, but for Scotland, Wales and Northern Ireland—also concur with the amendments. This is clearly a sensible way forward. I hope that the Minister will be able to indicate that our understanding is correct and that this is helpful.

--- Later in debate ---

Moved by

[Lord Hart of Chilton]

2: Page 5, line 27, leave out “10” and insert “11(2)”

--- Later in debate ---

Moved by

[Lord Hart of Chilton]

8: Line 2, at end insert “; and to amend section 3(2)(a) of the Parliamentary Constituencies Act 1986”