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

Lord Rooker Excerpts

Monday 16th December 2013 Lords Chamber

Moved by

[Lord Rooker]

156B: Before Clause 26, insert the following new Clause—
“Application in Northern Ireland
This Part shall not apply to Northern Ireland for as long as it is governed by a statutory power sharing executive based upon the Good Friday Agreement.”

[Lord Rooker (Lab)]

My Lords, this amendment would remove Northern Ireland from Part 2 of the Bill. Before I begin my brief remarks, I welcome the noble and learned Lord, Lord Wallace of Tankerness, to the Front Bench and send my sincere best wishes to his colleague—I think we would all do that—for a speedy recovery from his operation. We look forward to his early return.

There are many disadvantaged groups in Northern Ireland. To that extent it is no different from anywhere else but when one looks at representation, there is no Protestant working class representation in Westminster. Your Lordships’ House does not have the benefit of either Sinn Fein—which gets elected but is not represented at Westminster—or the SDLP, which gets elected but does not use this place. This means that we never get the whole story from Northern Ireland, from either side of the divide. I am no expert and my 52 weeks as one of the last direct rule Ministers does not make me one. However, I did collect some messages: fairness and equality are paramount.

We reminded ourselves last week of how young democracy is in South Africa, at 19 years. It is a lot younger than 19 years in Northern Ireland. I recall being at a civil society reception. At the time I had ceased being the Minister but was still the spokesman in this House; it was obviously before the change of Government. I was asked what the approach of the new Prime Minister would be. Would he take as much interest as the previous Prime Minister had when they got devolution back? They would still want some help and some tender loving care, but not nannying—no one is saying that at all. People are prepared to learn from their own mistakes. Progress has been made. However, it was known then, before and after devolution came back, that it was a fragile situation. It is still a fragile situation today, and will be for many years to come.

I was reminded this week by boxes in the dark areas of my home of the advice given to the ministerial team in 2005, when we arrived after the election. I will not quote from it because I would be asked to provide it. However, the central message, beside minding the language one used, was about this issue of community working across the divide, in which I include the divides of rural and urban, blue collar and white collar, and working class and middle class—all of which overlaid the divide of religion and the issue of two member states sharing one island. In fact, I wish the politics were divided down class lines and other factors rather than history and religion.

I want to put to the House five short quotes from A Shared Future which was first published in 2005, but the points are as relevant today as they were then. On building a shared future, it said:

“The potential of addressing the problems of disadvantaged communities will significantly depend on closely aligning community development and community relations work. Community development in disadvantaged communities is largely delivered through the work of the voluntary and community sector that has made a powerful contribution to the achievement of better relations between communities”.

Another paragraph, about investing together, made the point that resourcing the voluntary and community sector,

“identifies the importance of the community development work of the sector and the contribution this work plays to building community cohesion. It is important, therefore, that the capacity of the voluntary and community sector to deliver community development is maintained and reinforced”.

It went on:

“In recent years there has been considerable focus on the difficulties of alienated working class communities. It should not be assumed that the needs of protestant and catholic communities, whether urban or rural, can be met through similar approaches to community development and community relations work. The needs of the two main communities—urban and rural—will be different and, therefore, different approaches … will be required”.

Talking about action at community level, A Shared Future said:

“There is a clear recognition that the voluntary and community sector has made a powerful contribution to the achievement of better relations between communities. It is important that that role is underscored, especially in the most disadvantaged and interface areas”.

My final quote from A Shared Future makes the point:

“Government also recognises the contributions made for example by employers, churches and other faith-based organisations, minority ethnic groups, trades’ unions, children’s organisations, women’s groups, health organisations and youth organisations. These organisations continue to have a role to play in helping build relationships across Northern Ireland. These contributions will be important as Northern Ireland moves forward to a shared society”.

Virtually all those groups I have just mentioned, one way or another, are involved in campaigning, however one looks at it. Looking at the situation from a Northern Ireland perspective, equality legislation is dealt with slightly differently from the rest of Great Britain. I refer, of course, to Section 75 of the Northern Ireland Act. It is paramount that the needs of that legislation are watched like a hawk by all the groups in Northern Ireland. Indeed, when I was a Minister there, it was watched by Ministers and we were held to account.

It is crucial—others in this House will know the operation of this much better than I do—that that legislation applies to Northern Ireland in a way that it does not apply to England, Wales and Scotland. There is an insistence there, from a legal point of view, on the promotion of equality of opportunity between persons of different religious beliefs, political opinion, racial groups, age and marital status, between men and women, persons with a disability and without, and persons with dependants and without. There is a meticulous approach to this and people campaign about it. I do not know how a charity or other campaigning group would be able to pursue campaigning on Section 75 around an issue that arose during the year before a general election. I am a bit concerned about that because it seems to have been ignored by the drafters of the Bill.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I think this is at the heart of much of this debate. As the noble Baroness, Lady Royall said, if the activity being undertaken included extensive polling, the purpose of which was to get a Government to act in a particular way, and one applied a test of,

“reasonably be regarded as intended to promote or procure electoral success”,

of a party or candidates, I do not think that it could be interpreted in that way, unless one had a very vivid imagination. It is a leap to see activity that is clearly directed towards trying to address or change government policy as being intended to procure the election of a particular candidate.

As I said in my opening remarks, there is quite an onus on the Electoral Commission and the guidance it has given. It has given guidance on this in two previous elections without any apparent problems; I think we will return to this issue more fully in the next group of amendments. It is stretching things quite some distance to think that what is actually the perfectly legitimate purpose of an organisation, to campaign on issues relating to establishing provisions to be included in a Bill of Rights, can be seen as an intent,

“to promote or procure electoral success”,

of a particular party or candidate.

[Lord Rooker]

My Lords, I am very grateful for the contributions. As I said, I am no expert on this but I know enough from my own experience to know that we are on thin ice.

To deal with the last point first, as the noble and right reverend Lord, Lord Harries, said, the whole point is that the parties make it a political issue, not the groups. Let us be clear about this. Having read my original ministerial briefing, I will be mindful of the language I use, but let us face it: Section 75 of the Northern Ireland Act 1998 would not have been put on the statute book by a majority Government in Northern Ireland. That is a fact. But that legislation operates the pressure on all the parties in Northern Ireland to have transparency.

I saw things in Northern Ireland that you do not see in annual reports that are published in England and Wales and Scotland, which we get from the Printed Paper Office, such as an analysis of the religious make-up of participants, because they are checking the Equality Act. The Equality Unit there takes it really seriously, but it is not that unit that makes it party political; it is open to a party to say, “Hang on a minute, we’ll show our true colours: we are not in favour of this right”. Automatically it becomes a partisan issue, and that is where the danger lies. But that point has been made.

I fully accept the point made by the noble Lord, Lord Horam: there are other ways of dealing with this. This is a black-and-white issue of taking Northern Ireland out of Part 2. There has to be another way of taking account of the situation in Northern Ireland. I genuinely think that we have to take account of a situation that is different from that in the rest of the United Kingdom.

I also want to say on the record that nothing I have said or implied is in any way a criticism of the power-sharing Executive in Northern Ireland. I think they have done a fantastic job. I once sat in the Public Gallery in Northern Ireland during my time as chair of the Food Standards Agency, because it is a UK body. I watched Question Time and almost had tears in my eyes. It was a pretty rubbishy Question Time but it was there, across the Floor of a Chamber, using words to fight each other and not weapons, and that is the way of the future. We want to make sure the fragility is strengthened, not weakened.

I fully admit I had never set foot on the island of Ireland until I went there as a Minister but the Northern Ireland Office today cannot be the same as it was before devolution. It was unique in Whitehall. The political director was one of the most senior civil servants. The last one became the Permanent Secretary. They had fingers on things that did not happen in other departments. I would like to know that the equivalent of the political director in the Northern Ireland Office today is satisfied with this process in this Bill. I am concerned that those who know about the nuances and the organisation to make these things work are comfortable with it. I would certainly like to have a note on that before Report or a Statement from Government.

--- Later in debate ---

I turn to an example of this, which is push polling. It is a marketing technique in which an individual or organisation attempts to influence or alter the view of respondents under the guise of conducting a poll. Many push polls are negative attacks on candidates. They may ask questions such as, “If you knew that candidate X was being investigated for corruption, would you be more likely to vote for him, or less likely?” The question does not state that any investigation has taken place, so it is not a lie, but it puts in the respondent’s mind the idea that candidate X may be corrupt. Push polling is an effective way of maligning an opponent. I sense that this may be a new concept.

[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.