Third-party Election Campaigning

Lord Hodgson of Astley Abbotts Excerpts

Thursday 13th September 2018 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, the noble and right reverend Lord, Lord Harries, has been kind enough to say some complimentary things about my review, and so I return the compliment by congratulating him on giving us the chance to debate this important topic. I also note the leading role that he has played, both personally and within the group that he led, before, during and after the passage of the Bill. I will come back to quite a lot of what he covered later on in my remarks, so I will turn to my main thrust and not answer some of his points directly at this point.

My review of Part 2 of the rather clumsily named Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act was a statutory requirement—as the noble and right reverend Lord has pointed out—imposed by Section 39 of the Act. Admirably supported by a team from the Cabinet Office, over the course of a year I visited all the devolved Administrations and, during the 2015 general election campaign, visited several constituencies to see whether the provisions of the Act particularly pinched. We spent quite a lot of time looking at joint campaigning along the line of HS2, which had considerable local opposition, and took a great deal of evidence from individuals and bodies, several of whom have contributed briefings to your Lordships’ House for the debate today. I was very grateful to them all. My concluding report, published as Command Paper 9205, ran, I regret to say, to 99 pages.

I have a couple of general points first. One unexpected aspect of the evidence I received was how many people thought this was an entirely new Act. Of course, it is not an entirely new Act; it merely revises Part VI of the Political Parties, Elections and Referendums Act 2000. So the framework—not the detail—for regulating third-party lobbying had been in place for some 15 years. In many cases, people did not appear to understand this and their reaction to the Act was possibly, in part, as a result of not understanding what had always been required of them. Secondly, PPERA was passed in the year 2000; it is common ground among all of us that political campaigning in the year 2000 was light years away from where we were in 2015. The whole of the social media movement and industry barely existed in 2000, but now plays an increasingly important role and, unless I am much mistaken, will become even more dominant in the future as data mining—the ability to identify individual citizens’ preferences—becomes more widespread and effective.

The fundamental principle that guided my review—summarised on page 14 of my report—was to ensure that public trust and confidence in the integrity of our electoral system was maintained while, at the same time, not shutting off the historically rich diversity of public participation and involvement in our elections. The weight of evidence that I received was overwhelmingly that these twin objectives could not be maintained without an up-to-date statutory framework. I therefore saw no grounds for proposing the repeal of Part 2 of the Act. Most commentators on Part 2—and indeed the noble and right reverend Lord, Lord Harries, himself—focus on the charity and voluntary sector. That is fair enough, but Part 2 does not apply just to voluntary groups; it applies to every organisation—commercial or otherwise—some of which may have more obscure origins and objectives. I am afraid that the charity and voluntary sector, which I greatly admire and support, is not peopled entirely by angels. While the overwhelming proportion of charities behave properly, there are outliers who behave less well. We have seen examples of this in recent years. It is these outliers who set the political weather.

Much has been made by the noble and right reverend Lord, Lord Harries, of the so-called chilling effect of Part 2 of the Act. We need to be careful to distinguish between a novelty effect and a chilling effect. In 2015, the first general election at which the Act was in force, individual groups found it hard to get consistent advice from their lawyers, the Charity Commission and, most importantly, the Electoral Commission. Indeed, in my review, I made a number of specific recommendations as to how the role of the Charity Commission could be made more user-friendly, particularly in respect of smaller campaigning groups. In my view, the passage of time and greater experience will smooth away some of the edges of the so-called chilling effect. Nevertheless, the title of my report, Third Party Election Campaigning – Getting the Balance Right, indicates that I did not conclude that everything in the garden was rosy.

During the rest of my remarks, I want to draw the Government’s attention to three major areas which, in my view, require urgent attention. In large measure, I am running in parallel with what the noble and right reverend Lord, Lord Harries, has been saying. The first is the intent test. I concluded that the provisions of the Act should be focused solely on what I called electoral campaigning—activities intended to influence individual voting choice in the run-up to and during a general election campaign, at a time when the general public are, so to speak, switched on to the electoral process. This activity is distinct from what I called advocacy—the business as usual of a particular campaigning group. It is also different from political campaigning—direct approaches to political parties, MPs or Members of your Lordships’ House.

As the noble and right reverend Lord, Lord Harries, has pointed out, the statute currently catches any activity which can be reasonably regarded as intended to procure electoral success. The challenge is that what can be reasonably regarded may change from person to person and over time. An example may help illuminate my point. Suppose you run a small charity which opposes the export of live animals. In the midst of a general election, a number of calves are found dead on a ship in a channel port. You find yourself in the middle of a media storm, trying to balance achieving your charity’s strategic objective of banning the export of live animals, while avoiding the electoral implications of the statements you may be making. This is not an easy balance to achieve and one where actions taken under extreme pressure during a general election campaign may appear less well thought through at subsequent, calmer and more reflective times.

Happily, there are two possible solutions. First, the Representation of the People Act 1983, which covers local elections, has a test of intent which has stood the passage of time. It could easily be transferred to this Act. If this approach did not appeal to the Government, it would also be possible to establish a code of practice which would be approved by Parliament, compliance with which would provide a statutory defence. In my view, adopting either of these approaches would end the argument about chilling once and for all.

My second point concerns an area where the provisions of the Act are, in my view, too loose. This is the issue of what constitutes a member. As the noble and right reverend Lord, Lord Harries, pointed out, the members of an organisation can quite rightly be communicated with without falling foul of the provisions of the Act. The Electoral Commission has devised what it calls a “committed supporter”, which in my view is insufficiently clear. In an age of social media, it is too easy for an organisation to mail thousands of individuals at near zero marginal cost, inviting them to tick a box to become a committed supporter. Indeed, it is possible to consider that in due course you will have a negative pledge: if you do not tick a box, you will be considered to be a committed supporter. My report therefore suggests that a much higher degree of commitment is needed, which I describe as a “constitutional member”, and I suggested various yardsticks by which that could be measured.

My third and final point concerns imprints. Noble Lords will be familiar with the requirement for political parties to put an imprint on all their printed material—published by so-and-so at such and such an address for such and such a candidate. In my view, third-party campaigners who have registered with the Electoral Commission under Part VI of PPERA should be required to disclose this fact on all relevant material together with their internet and social media pages. Surely the general public are entitled to be put on notice where individual third-party campaigners are undertaking a particular degree of electoral activity at election time. Transparency demands no less.

To conclude, naturally I was pleased that my report was generally well received by the voluntary sector, the legal profession, the Charity Commission and, with the proviso that the noble and right reverend Lord, Lord Harries, mentioned about the intent test, by the Electoral Commission, as well as at least initially by the Government. I have been disappointed that government support has subsequently gradually ebbed away.

As my report went to the printers, the Law Commission produced a heavyweight study on general electoral law, outlining a good many deficiencies, inconsistencies and confusions which needed remedying. In an increasingly cynical age, it must be more than ever important that our fellow citizens have confidence and trust in all aspects of our electoral system. I therefore still treasure the hope that the Government will, in due course, find time to pull both these reviews together and so give the country an electoral system fit for the modern age.