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

Debate between Lord Phillips of Sudbury and Baroness Mallalieu

Monday 16th December 2013 Lords Chamber

[Baroness Mallalieu (Lab)]

My Lords, I take issue with one or two of the matters that the noble Lord, Lord Phillips, has just raised. The commission came to the view that there should be no exemption for charities and that was based squarely on the evidence that we heard. As everyone else is doing so, perhaps I should make a full declaration of my involvement with various campaigning organisations. I am president of the Countryside Alliance and president of the Horse Trust; one is a charity and one is not. I am a member of the National Trust, the RSPCA and the Humane Slaughter Association and I am a supporter—whatever that may mean at the end of this Bill’s progress—of the Stop HS2 campaign. There may be others, but I cannot, at the moment, remember them.

[Lord Phillips of Sudbury]

I am so sorry to interrupt the noble Baroness so early in her speech, but it is directly germane to her first point. I think she said that the Charity Commission came to the conclusion that charities should not be exempt.

[Baroness Mallalieu]

I was not referring to the Charity Commission; I was referring to commission of the noble and right reverend Lord, Lord Harries. I am afraid this had led to some confusion. I noticed someone else fell into the same error. If I did, I apologise. Except for those who have put their names to the amendment on the Marshalled List—and no doubt there will be others who will speak—I am not aware of anyone among those to whom we have already spoken, who shares the view of the noble Lord, Lord Phillips. Not one of the charities which came and gave evidence before us asked for there to be an exemption. Nor, as far as I am aware, does the Electoral Commission suggest that it is a good idea. I am not certain about the view of the Charity Commission, but my understanding is that it does not seek it either. As I understand it, this is because it is generally felt that transparency in the way people campaign during elections should run right across the board, for charitable and non-charitable campaigners. The spending limits, which are a key difference, should be the same across the board. No charity asked to be exempt, but we did hear evidence from some which felt that, if they were exempted, some charities would bring others into disrepute, and that it was a possible route for avoidance.

The argument of the noble Lord, Lord Phillips, is predicated, I think, on a belief that the guidance given by the Charity Commission at present works well—and he knows a great deal more about charity law than I do. That was not entirely my understanding of the evidence that we heard, and there has been concern that it has not always been rigorously enforced in this area. It is, perhaps, not surprising, given the number of registered charities. I think there are something like 130,000; he will know the figure better than I do. Indeed, there have been a number of public complaints about charities and how they have campaigned recently. It was for that reason particularly that I drew attention to my involvement with the Countryside Alliance.

It seems to me that there must be equality across the board, not only with obvious transparency, but with the way in which people are permitted to campaign. If the situation were—as the noble Lord, Lord Phillips, would wish it—that non-charities continued to be regulated under the Bill as amended and charities were removed, there could be two organisations campaigning on precisely the same issue, but bound in different ways by different forms of regulation. There could be an argument during an election period, for example on hunting, which has already raised its head a number of times in this debate. This would have the Countryside Alliance as a non-charity, restricted in a variety of ways, required probably to register as a result of whatever the new limits might be, to observe strict spending limits, and with no regulatory burden. Whereas the League Against Cruel Sports, which is a charity, would have no spending limits and would not have to put in the sort of rather onerous reports that are required otherwise. This is a cross-party issue which is seen by some as being politicised. There may well be complaints about it.

My noble friend Lord Gardiner—I call him my noble friend even though he sits opposite because he is from the “barricades” days—has tried to reassure us that the Countryside Alliance would not be caught by this measure. However, I am not so sure. We wait for that matter to be tested or, I hope, clarified as the Bill progresses. The noble Lord, Lord Phillips, says that it is wrong for one body to be doubly regulated, but he is overlooking the fact that charities are in a privileged position in many ways. They have a great many advantages and it is right that they should be regulated not just during election periods but all the time so that they do not infringe the rules. As I say, whether that is enforced is a matter of considerable controversy. Surely the Bill is about the transparency of those engaged in campaigning at election times. It is not a Bill about charities—that is something quite separate. There should be a level playing field and the public should be entitled to know what is being spent and by whom, whether the body in question is a charity or not. Therefore, although I have enormous sympathy with what the noble Lord says, and I share his concern that charities are very worried about the Bill, so are NGOs, and for precisely the same reasons.

[Lord Phillips of Sudbury]

The noble Baroness refers to a level playing field between charities and non-charity NGOs. However, there is no level playing field because non-charity NGOs can politick any way they like until the cows come home, whereas charities cannot.

[Baroness Mallalieu]

The noble Lord is correct on the face of it but, in reality, when one looks at some of the forms of campaigning that have taken place in recent years, it is very difficult to discern a difference between the two. The two organisations to which I referred earlier are a case in point. If the charity guidance—CC9—and the appendix to which the noble Lord referred were enforced rigorously, and the Charity Commission had the means to do that, perhaps I would take a different view. However, given that the Charity Commission cannot possibly have a handle on 130,000 charities during an election period, it seems to me important that there should be one rule that applies to all.

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

Debate between Lord Phillips of Sudbury and Baroness Mallalieu

Tuesday 22nd October 2013 Lords Chamber

[Baroness Mallalieu (Lab)]

My Lords, I shall speak only on Part 2. I must first declare some non-pecuniary interests. I am a member of the Commission on Civil Society and Democratic Engagement, which was set up under the chairmanship of the noble and right reverend Lord, Lord Harries of Pentregarth, who spoke earlier. We will produce our report next Tuesday in time for the Committee stage of the Bill. I very much hope that all noble Lords will make a little time to have a look at it because during the past few weeks we have listened to a vast amount of evidence, including from the noble Lord, Lord Tyler, and we have taken, as it were, views from all parts of the United Kingdom.

What I am going to say tonight is a personal view because the report is not yet finalised. However, having listened to and read all the evidence, there have been times when my reaction was very much that of Victor Meldrew in “One Foot in the Grave”: that is, “I don’t believe it!”. How could a Government, any Government, make such a hash of an issue on which we are almost entirely united—that of transparency at election time? None of us wants money to be able to buy votes. We agree that there should be clear limits on spending and the public should be told who spends what. If anything, we should be looking tonight at a short Bill with all-party support, which makes some amendments to the Political Parties Act to improve its clarity. That would have all-party support. Instead, undue haste has produced a quite dreadful piece of legislation which has managed not only to divide the political parties but has united charities and organisations of every kind against it. How do you manage to alienate the Women’s Institute, Mumsnet, the National Trust, Greenpeace, the British Legion, the Countryside Alliance, the nurses, the RSPB and so on against you so that they combine together? You could not do it if you tried, but this coalition has managed it. When listening to the evidence, I did at times wonder whether someone with a sense of humour had slipped Part 2 into this Bill to test whether anyone in this House was awake, but the 40-strong speakers list shows that we are. If there are notably few Back-Bench coalition speakers, I can attribute it only to a number of those who normally stand up for free speech having adopted the maxim, “If you can’t say anything good, then say nothing at all”.

Part 2 is not wholly useless. It could serve a professor of politics very well as an example to his students of how not to legislate. It contains just about every error that a Government could make. There is not time tonight to detail them all, so I will take a selection of the major ones. The first thing you do is legislate in haste. Part 2 seems to have its origins in a meeting between the Prime Minister and his deputy in July, when they realised that unless something was done pretty quickly this autumn, a Bill would not reach the statute book a year before the fixed date of the next general election. There was no real urgency whatever about Part 2. We have been told by Members in the other place that Members of Parliament were not clamouring for it, and neither was anybody else.

Although the Political Parties, Elections and Referendums Act 2000 had its critics, and various improvements could have been made to it, it has worked reasonably well in two general elections. We were told that there has been no raft of complaints about it. There has been no formal investigation or inquiry and no prosecutions. It is not perfect: there is some lack of clarity and the Electoral Commission’s review has suggested improvements, but it is workable. Nevertheless, Part 2 was shoved into this Bill and, as we have heard, it was put before the Commons just as the House rose for the Summer Recess—indeed, the very day before.

The second error the Government made was not to consult those directly affected. They did not consult charities or campaigning organisations. Indeed, they did not consult properly those with responsibility for setting up and policing the new legislation. The Electoral Commission were, it seems, told what to do, not asked. Of the 50 recommendations it made in its review, only one was put into the Bill, and that was done in the opposite way to that which it had suggested. The Electoral Commission advised that staff costs should come into the equation, but suggested that if it were done, the limits should be raised. The Government have, indeed, included staff costs but are now trying to lower the limits.

Others have commented on the next error, which is particularly strange coming from a coalition which speaks of making “a bonfire of regulation”: that is, a massive increase in the regulatory burden and, by lowering the limits, an increase in the number of those to whom it applies. We should not forget that criminal sanctions will be applied, which are wholly disproportionate given the sums involved in many cases.

A further error is to try to push through a Bill which is so badly drafted that a specialist lawyer giving evidence to us told us that she could not conceive that it had ever been seen by a parliamentary draftsman. Lack of clarity and the sheer incomprehensibility of its wording mean that any organisation without an in-house specialist will have to seek expensive legal advice simply to understand what it means. The noble Lord, Lord Greaves, referred to that issue. I treat your Lordships to a few lines by way of a sample. Clause 28 on constituency limits at page 17, line 5 of the Bill, says:

“Subject to sub-paragraphs (5) to (7), the limit applying to controlled expenditure which is incurred by or on behalf of the recognised third party in the relevant period in any particular parliamentary constituency is the relevant proportion of the limit mentioned in paragraph 3(2A) … For this purpose “the relevant proportion” means— A/B where— A is the number of days in the relevant period; B is the number of days in the period which is the relevant period for the purposes of paragraph 3”.

How is somebody sitting in a small charity to make head or tail of that? The result, of course, is that they will be frightened off—they will be terrified of doing anything that puts them over the limit—

[Lord Phillips of Sudbury]

Does the noble Baroness not realise as a lawyer that this is a goldmine for lawyers?

[Baroness Mallalieu]

That is the other possibility, which I had not considered. It will undoubtedly increase the work of people who advise charities, such as the noble Lord.

Where are we on the rest of the so called clarification brought about by the amendment to Clause 26 in the Commons? I am the president of the Countryside Alliance. We have no idea what we might or might not be able to do as the Bill is currently worded. At the previous election we produced a rural manifesto that outlined our policies. It was widely distributed and not aimed at a particular party. We are told by the Electoral Commission we could not do that. It is clear that we could not organise a march, but could we organise hustings or have pledge cards? What of all the other public events where campaigning organisations put forward their views and express their wishes to their elected representatives? Who can tell? It is not only badly drafted; it is not readily understandable by those who need to know.

Yet another error was mentioned by the noble Lord, Lord Rooker—putting forward legislation which is bound to increase the number of complaints made to the Electoral Commission during an election period but providing no extra resources to enable the commission to investigate or deal with them. The Electoral Commission has had something to say on that and has asked the question and, as far as I am aware, has not received a satisfactory answer.

I could go on but I will not. I will just turn to the Government’s biggest mistake of all, one which the right reverend Prelate the Bishop of Derby mentioned. At a time when there is a deep mistrust of politics and political party membership is falling, trying to scare off the political involvement of the public who in their millions—literally in the case of some charities such as the National Trust and the RSPB—have turned to supporting extra-parliamentary campaigns is an affront to democracy. The voluntary sector’s involvement in public debate is to be encouraged, not stifled. It informs MPs and candidates. It informs the electorate. It enriches debate and very often, and perhaps most importantly of all, it provides a voice for groups that are otherwise powerless. Campaigns can at times, I have no doubt, be irksome to Governments but they are positive for democracy. Freedom of expression should be protected, not gagged.

This is a bad Bill, which I suspect in its present form is incapable of being corrected properly by amendment. We are, of course, giving it a Second Reading tonight. It misses the point. It is a wasted opportunity. It does not even begin to deal with modern ways of campaigning such as Facebook and Twitter, because nobody has consulted the people using those tools now. The Government, or whoever drafted this Bill, have not taken them into account. In common with others who have already asked for it, I hope very much that the Government will see the sense of taking this Bill away, consulting and then returning with a Bill which we could all support. After all, that is the way in which constitutional changes should properly be made. If they do not do so, I hope that Peers from all parts of this House will raise their voices and, if necessary, walk through the Division Lobby to make sure it happens.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Baroness Mallalieu

Monday 5th March 2012 Lords Chamber

[Baroness Mallalieu]

My Lords, I support both this amendment and the amendment that the Government have tabled. For reasons that have already been given, it is crucial that the figure who is the director should not be political in any way and should not, in so far as it is humanly possible, be susceptible to political pressure. That is not only because he will be dealing, as has just been said, with cases that may have political undertones but also because—and I say this as a clinical practitioner—there may very well be a serious crisis in criminal legal aid in the not too distant future which may have repercussions that go far beyond individual cases. It may be necessary that whoever is in the role of the director is prepared to stand up to pressures that might be placed on him in relation to the funds that are available. It is important that he should report, and I welcome that amendment, but that does not go quite far enough. The amendment in the name of my noble friend Lord Hart and others does.

[Lord Phillips of Sudbury]

My Lords, I concur with everything that has been said. As time goes by the role of the director is liable to get more rather than less sensitive. It seems to me that the law in this country is getting closer and closer to politics more and more often, particularly in relation to the development of judicial review. Public confidence is vital. I do not think that it needs repeating as to why it is so vital, not just in terms of the judiciary but in terms of this very sensitive office. The director will have to make some extraordinarily sensitive and difficult decisions. As we all know, because we have been debating this Bill for some while, some fine judgments will have to be made by whoever is the director.

I also note that the director is to be appointed from among the Civil Service, which strikes a rather odd note. Why should the director not be appointed from anywhere? Why should he or she not be the most appropriate independent-minded person? As the noble Lord, Lord Faulks, said, it is a pity that Clause 4(4) restricts the power of the Lord Chancellor to direct to individual cases rather than to classes of cases. I wish that I had put down an amendment to that.

In all the circumstances—although the publishing of an annual report is extremely beneficial; and my noble friend the Minister may say that because of this and because of that it is superfluous to express on the face of the Bill the need for independence—if ever there were a need for a single simple statement in what is already 200-plus pages of legislation, it is that this person should be absolutely independent of government.