Deregulation Bill
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Lord Berkeley of Knighton (CB)
My Lords, almost before opening my mouth I must declare an interest, having been for many years—more than I care to think of—a broadcaster for the BBC, both on the staff and as a freelancer.
The points being made are important. When we talked about the arts in your Lordships’ House recently, the Government, it seemed to me, were very open to the concept that people need to know their budgets before they forward-plan. At a time when the charter review is coming up and the BBC accepts that there are many problems with the licence fee and current funding and is trying to deal with that, to cut the ground from under it before the charter is properly considered would be very dangerous.
From my own experience, the cuts within the BBC—particularly the cuts to Radio 3—have been draconian. Many people have been laid off; programme budgets have been cut. One of the things I find strange about this is that I subscribe to Sky—I enjoy it; I sometimes watch the BBC on Sky—but for my Sky package, which includes sport, I pay about £46 a month. For the BBC I pay £12 a month. That is a quite extraordinary disparity and it is worth thinking about it. For what the BBC provides—the Proms, the culture, the natural history, sport, Wimbledon: all things for which they are in competition with Sky—the figures hardly stack up. To add this additional burden would be rather irresponsible. I therefore beg the Government to consider delaying. It is not asking an awful lot—not to cancel, just to delay.
Lord Rooker (Lab)
My Lords, I did not come to speak on this—I am a complete outsider as far as the media are concerned—but having listened to the noble Lord, Lord Grade, before the Division, I will.
This is unfortunate. I know that it is fair enough to make the point that we did not have these discussions on the draft Bill; I will not make a serious complaint about that, because things in the Bill have been added since the pre-legislative scrutiny. However, on what I know about the media, I certainly take the point of what the noble Lord, Lord Grade, said, that in the end this is basically all about the attempt to force the BBC to go down to a subscription channel basis, and I fundamentally disagree with that. The BBC has not helped itself in the last couple of years; as an outsider I have watched in the other place some absolutely inept performances in front of that Select Committee by very highly paid people, who on some occasions are inarticulate beyond belief. You can imagine where the groundswell against it comes from.
I fully accept that there has been an attempt to do something about the banker-style salaries. I fully accept that you need the best people, and it is a competitive market. I have nothing to declare, by the way. While Murdoch’s alive, I do not do Sky. I sacrifice Formula 1 and everything for that. There will come a day when I can have Sky, but it is not there at the moment. The fact is that there is a disparity when one sees the cost of what is advertised—but then you do not see the full cost of the BBC, for example. When you turn the radio on in the morning, you expect it to be on, but you do not see the separate figures for that. It is a bit like other services, whether schools or hospitals. When you walk through the door you do not see a price on the top—although now you do with universities, where the cost of walking through the door is nine grand a year. It is not quite like that; it is not put across that way. Therefore you do not have the marketing. The BBC has no interest in having the marketing to compete with the marketing that Sky does to make it seductive.
That is the only point I want to make. There is a conspiracy—no question about it. I freely admit that I was very tempted after it went to the Commons; I was not sure whether it would be put in the Commons or the Lords. When the arguments were first put they were very seductive on decriminalisation. I have friends who are magistrates, and they say, “Jeff, it’s nonsense. We parcel them all up—we do them all together”. On the time argument, the noble Lord, Lord Grade, said that it takes 3 minutes and 13 seconds. That is exactly believable—talk to magistrates. That is the way it is done. There is no time factor in the courts; there is no question about that. If anyone wants to go to jail in this country, it is very easy to do it—just do not pay the fines. Lots of people make a business out of that. Therefore the BBC is an excuse. However, I fully accept that there is an underlying issue. The BBC staff have to up their game when they appear before Select Committees, but we have to bear in mind that at the end of the day there is a seductive and well funded attempt here to force the BBC to go to a subscription service. We ought to oppose that at every step of the way.
Lord Watson of Invergowrie
My Lords, I, too, support the proposition that Clause 59 should not stand part of the Bill. The arguments have been very eloquently made, in many cases by people who are broadcasting professionals of many years’ experience. Of course I have nothing to offer in that sense. However, I fear that this is largely an ideologically driven suggestion. Whether it is intended to end up with subscription fees or not, I do not know, but I believe that it was suggested to fundamentally weaken the BBC by those who, for whatever reason, are not supporters of the organisation. I firmly declare myself a very firm supporter of the BBC in its various forms—radio, television, and not least the World Service, which is a tremendous organisation; what it achieves with the money it has is superb.
I would like to know, if the Minister can say, how decriminalising non-payment would be likely to reduce the number of those who, for whatever reason, refuse to pay the licence fee. I understand that the figure is around 5% on an annual basis. How would decriminalisation be likely to increase the payment of the fee? I cannot see any way in which that would be likely; in fact, the very opposite is almost certain to happen.
The other aspect is that the clause mentions monetary penalties for those who do not pay the fee. I am sorry, perhaps I am missing something, but if someone does not pay the licence fee, how will a monetary penalty imposed for not paying it make it more likely that the fee itself will be paid? I do not see the point of that.
It worries me that the BBC has often been undermined, and not just by the present Government; I have to say that on many occasions my party, when in government, did not exactly hold back from undermining the BBC or attacking its integrity or that of some of its reporters, which I thought was at best unfortunate if not misguided. So I do not make this a particularly party-political issue, although we have the Government that we have for the moment. I very much hope that this time next year there will be another party in government, my party, and that we will be prepared to say that we will not go ahead with decriminalising this offence.
My final point is a word of warning to the BBC’s many supporters in this Room. I suspect that even those who are in favour of decriminalisation are supporters of the BBC. We have heard from a producer today, and that was very valuable. However, anyone who read Olenka Frenkiel’s comments in the Guardian last Friday must accept that there are still problems that the BBC needs to address if it wants to broaden and deepen its support. It needs to treat its female staff—I am talking not so much about presenters as about reporters—in a far better way. I was really taken aback by what Olenka Frenkiel had to say. I thought that recent cases had meant that the BBC had turned round, but it appears that in that respect it has not.
If decriminalisation does go ahead at the end of the review, it will not help the BBC. Those of us who treasure the BBC and what it does, and who want to allow it to continue as far as possible into the future in the face of some pretty fierce competition, need to support the licence fee, what it stands for and what it is used for. If that is what we are going to do, we have to ensure that as many people pay it as possible, and I do not believe that the suggestion in this part of the Bill would achieve that purpose. That is why I oppose it.
Lord Rooker
My Lords, I think that there is only one other person in the Room who sat through three months of the draft Deregulation Bill. I want to make a suggestion to the Minister that he can answer when he comes to reply to that very powerful speech. Given the amount of legislation that we have just had recited to us that is up to date and modern, why has this issue not yet been referred to the Law Commission? We know that there has been a bit of a problem between Ministers and the Law Commission; that was self-evident when we took evidence from both parties about the reform and updating of legislation. Part of that is to do with deregulation, part of it is modernisation and part of it is legislation that is allegedly of no further practical use—there will be a debate on that next week. In this case, though, bearing in mind that we do not make substantive decisions in Grand Committee, what is the reason why the issue cannot be referred to the Law Commission?
Lord Gardiner of Kimble
My Lords, I thank my noble friend for his amendment. The Government are clear that busking can enrich a community’s quality of life and generate a positive atmosphere enjoyed by many people. Regrettably, though, street entertainment can sometimes be a source of conflict between buskers, businesses and residents. Complaints of noise, nuisance and anti-social behaviour can arise, and police and local councils have to respond and try to find solutions.
The Government do not start from the position that busking requires regulation and control. Busking should be about freedom of the individual, and only if necessary should local action be taken to curb certain excesses. To answer the noble Lord, Lord Rooker, although I am still waiting for some advice, there is actually no general legislation on the subject of busking but local authorities can have policies on it, including codes of conduct or permit regimes, and occasionally by-laws and local authority legislation, such as the London Local Authorities Act 2000. That Act enables London councils to license busking. Indeed, it is a matter for London councils to determine whether or not they utilise these powers.
The amendment proposes that a government Bill should seek to overturn private legislation promoted by London local authorities and passed by Parliament. If we were to accept the amendment, the Government would indeed be saying that London councils should not have the option to decide whether or not to license busking based on local circumstances. Indeed, we feel that this is not a subject for top-down government solutions; it is for local authorities to determine fair, reasonable and transparent policies in relation to managing our streets.
As far as the Metropolitan Police Act 1839 is concerned, while Section 54(14) is rarely used, the Metropolitan Police need to retain the provision to give their officers the tactical option of dealing with what they have called “busking-related offences”. We are seeking to strike a balance between freedom to busk and having to control nuisance caused by persons with no musical intent.
Lord Rooker
This is the issue that was before the Committee: there are different functions. The commission can look at legislation that might be of no practical use. There is some of that in Schedule 20—none of which was looked at by the Law Commission, I might add; it was dreamed up by civil servants. However, it will also look at modernising legislation. On the basis of the speech given by the noble Lord, Lord Stoneham, the legislation needs modernising, because all the offences are covered by more modern legislation than the 1839 legislation to meet the modern day. So the commission is quite capable of looking at modernising legislation as well as considering legislation that is no longer in use. That is a separate function of the Law Commission.
Lord Gardiner of Kimble
My Lords, I hope it might help the noble Lord, Lord Rooker, if I say that I will specifically make known to my colleagues the observation that the noble Lord has made. However, on that basis, I hope that my noble friend will be prepared to withdraw his amendment.
Lord Low of Dalston (CB)
My Lords, I am grateful to the noble Lord, Lord Mancroft, for outlining the background to this amendment and the reason for it with such admirable clarity, born of the great experience that he has in this field. As a former chair and now vice-president of RNIB—which interests I declare—I put my name to the noble Lord’s amendment because I have had first-hand experience of the restrictive effect of the current regulatory regime for society lotteries on the charity’s fundraising potential, which I thought it relevant to place before the Committee in its consideration of this amendment.
Society lotteries are minnows by the side of the National Lottery but are nevertheless a useful tool in the fundraiser’s tool-box. They could be an even more useful tool if they were freed from the restrictions and red tape which the noble Lord, Lord Mancroft, talked about and which significantly hobble fundraisers who seek to use society lotteries to maximise their income.
RNIB currently runs two society lotteries: one for RNIB itself and one for Action for Blind People, which is part of the RNIB group. It raises £8 million a year through its society lotteries, which provide valuable funding for vital services such as the RNIB helpline, sight-loss advisers in hospitals—who are there to pick people up at the point when they are told that they are going blind—and talking books, which many people describe as a lifeline.
Society lotteries are a successful fundraising vehicle for RNIB but, as I say, this success could be increased were there to be a relaxation of the limits imposed on prizes, draws and turnover. In particular, the charity is restricted in how much it can generate in charitable income through its society lottery due to the £10 million annual cap on turnover or sales. This is difficult to understand, as the noble Lord, Lord Mancroft, said, because this is the only form of fundraising that is capped in this way. RNIB thus well illustrates how charities can have their ability to raise funds restricted by unnecessary and burdensome regulation.
RNIB also has concerns with the regulatory regime which governs licensing. Society lotteries have achieved strong growth in recent years, reflecting their popularity with the public as means of raising money for good causes. However, if RNIB wants to sell more tickets, and thereby raise more money, it would be limited by the income and ticket sales caps. It would therefore have to register a new society lottery, which would mean that much needed charitable funds would be spent on duplicating auditing, legal, licensing and other bureaucratic costs.
As provided for by this amendment, an increase in the permissible amount of ticket sales for a single draw would enable RNIB to raise more money while at the same time limiting costs. An increase in the annual income cap would enable it to maximise its fundraising. Furthermore, if prize value limits were increased, more people could be attracted to play RNIB’s lotteries, thereby boosting the overall amount raised through tickets sales. In addition, as the noble Lord, Lord Mancroft, has explained, the 80:20 rule, whereby 20% of proceeds have to be returned as profit to the good cause, restricts new product launches and can stifle innovation. For smaller lotteries, such as Action for Blind People’s, the requirement that 20% must always be returned can stifle growth, as it makes it difficult to invest heavily in new acquisitions. This could be alleviated by allowing lotteries to apply the 20% rule to the financial year as a whole rather than to each individual lottery.
Society lotteries are a valuable form of fundraising, not just for the RNIB but for charities across the country. They provide much needed funding for highly valued services, and evidence shows that were modest deregulation to take place, it could allow good causes across the UK to increase the amount that they receive through this popular form of fundraising.
Lord Rooker
My Lords, I would like to ask a question. I know nothing about the detail of this, but I take it that these four elements that the noble Lord has described do not hang as a package. In other words, I am saying to the Minister: just for once, pick one. Okay? The case seems overwhelming. I have spent more time in this Grand Committee than I have done at any time since I was in the Minister’s position, so I know what it is like; because there is no vote, you can stonewall and accept nothing, hoping that, by the time you get to Report, you can wing it through.
Given the figures that the noble Lord, Lord Mancroft, gave, I would also say to the Minister that this is not a threat to the National Lottery. I understand that when the lottery was first formed, a lot of constraints were built in to protect it. For example, someone tried to start a lottery betting on the six numbers, and I think that it was banned because it would drain off other funds. The National Lottery is now so well established that there cannot possibly be any threat to it.
There is another factor here, if I have got it right, and I do not declare an interest but I do the odd lottery myself: this would mean more choice for the player. In the National Lottery you do not get any choice. We know what the overall picture is—it is a public good, we know that massive benefits to sport, culture and our heritage have come from it, and long may that continue—but we do not get any choice. However, with the society lotteries you get a choice. You can make that your key.
I will also say, although I know that these words are not used often these days by the Government, that this is classic “big society”. Does the Minister remember that? All the elements of society lotteries—individual choice, very small beer compared to the National Lottery but substantial benefits to the societies involved—make them the big society. They fit in exactly with what the Prime Minister used to talk about. It was a good idea; he just could not sell it. The fact is that these schemes seem to fit with that.
I say to the Minister: go on, just pick one of them. I am sure that he will still be there when we get to Report—it is too late for reshuffles now—so pick one that is really good and go back to the boss, as I used to do occasionally. I used to go back and say, “Look, we’re going to be defeated on this”, and we did not really want all the mess connected with that. I know that we cannot have a vote on this, but the fact is that on Report this could be a bit tricky at the wrong time of day. It would be a lot better if the Minister showed a bit of willingness, and I think he should be prepared to accept one of them.
Lord Collins of Highbury (Lab)
My Lords, I hope that we are not going to disappoint my noble friend or even the noble Lord in terms of the position of the Opposition. As someone who has spent a lifetime trying to raise money—for causes that were perhaps difficult, like the Labour Party campaign—I understand the importance of lotteries, and the importance of a range of options when it comes to raising money. However, we have to understand that this proposal would considerably change the lottery regulations, and such a change—again, I am glad that my noble friend Lord Dubs is not here—would need detailed study regarding its consequences. Not just the National Lottery but also smaller lotteries may be squeezed by the larger society lotteries that can expand and push the smaller ones aside. The Opposition would want to discuss that in detail before we could consider any changes.
Lord Collins of Highbury
I will come to that point, because in this market the proposals could result in an expansion with unforeseen circumstances and I want to address that. I have raised that with the Minister before, with regard to who may enter that market if we deregulate it. That is one of our major concerns. The principle of the National Lottery is that it was designated as a monopoly to ensure that it generates sufficient income for all the causes that Sir John Major originally envisaged for it. We need to be very careful about weakening the protection of that principle. That is the point that I am making at this stage. My noble friend Lord Rooker quite rightly pointed out that there was a range of proposals within these amendments; I will come to one of them, which could be well worth considering.
We need to protect the principle of the model that has worked successfully over the past 20 years. Measures that could have the potential to undermine that settled principle of one national lottery alongside many small small-scale society lotteries need to be avoided. I shall mention as an example the increase in prize caps for society lotteries. The level of prizes on offer to players is a fundamental differentiator between the National Lottery and society lotteries. When we introduced the National Lottery, we had that in mind. Any substantial increase in prize caps for society lotteries risks fragmenting the money spent by players across all the different lotteries available, which would lead to smaller jackpots, fewer tickets sold and, ultimately, less money for the good causes that were highlighted in the Chamber yesterday.
Lord Rooker
My noble friend is rewriting history. The Labour Party was opposed to a national lottery—I remember the years I spent in the other place when it was being promoted—because it would damage the football pools. That was the argument given. My noble friend is arguing from a monopolistic position. Where is the threat to the National Lottery? It may be a good model for a national lottery, which is fine—the past 20 years have shown that it works—but this is not the National Lottery; these are society lotteries, which are minnows compared to it. We were not always in favour of the National Lottery, just as we were not always in favour of the minimum wage, so I cannot sit here and have history rewritten.
Lord Collins of Highbury
I was not attempting to rewrite history—far from it. That is why I mentioned the debate yesterday where noble Lords referred to Sir John Major’s proposals and their legacy. In the context of the Olympic Games and their legacy, the National Lottery has played a critical role. I think that the Labour Party has learnt many lessons over the years and adopted policies that perhaps it had been concerned about. My noble friend referred to the national minimum wage. I worked for a trade union that opposed that every step of the way, but it has learnt the lesson of reconsidering positions. We are talking here about the outcome of the National Lottery and the huge amount that it has achieved for a whole range of good causes, not just the national legacy causes but local causes and, in particular, the cultural impact. Any change to that principle therefore needs to be considered extremely carefully.
The proposal that the 20% contribution should be spread over a period of time may be one that the Minister will take on board. However, another point that I want to make about any changes, and I have raised this in the Chamber, relates to the loophole that we have seen exploited by the Health Lottery. It is supposedly made up of 51 separate companies yet has the same three directors, the same office and the same branding, in effect enabling it to operate as an alternative to the National Lottery. That is something that the Minister needs to look carefully at, despite the actions of the Gambling Commission in this regard. The amount that goes to worthy causes there is 20% but it is not absolutely clear how it is spent, and its promoters are certainly operating on a commercial basis.
Lord Rooker
My Lords, I will briefly add to what the noble Lord, Lord Sharkey, has said. In the original draft Bill that the Joint Committee scrutinised, the Ministry of Justice was the only government department that brought forward proposals of which none had been formally consulted on—not one. Although we are debating Clause 61, Clauses 62, 63, 64 and 65 are all MoJ clauses and none of them has ever been consulted on formally. This is a Christmas tree Bill with 100 different subjects—we could not look at everything, and looked at stuff on the basis of evidence. It was unique in the sense that we had one department that brought forward a range of proposals that it had not consulted on. In a way, this is given away in Clause 61 itself. Line 5 refers to,
“an annual report on standards of decision-making”.
That is the giveaway really. I have to say that the Government’s response was a bit unsatisfactory.
We need to have this short debate, however few minutes it lasts, because, to the best of my knowledge, this is where the defects arise because there is so much going on and this Bill is now much more massive than it was. I have no complaint about that; I am just stating a fact. As parliamentarians, we need further and better particulars. We did not get many to start with, which is why we did not deal with a lot of the Bill. We also had little time to do our job because we were constrained by having to report back to Parliament by 16 December.
The Ministry of Justice appears to be a bit flaky on the administration of justice in a way. That is how I would sum it up, not just on this issue but on others as well, although I am not going to go down the route of listing things. Cost was used as an argument on this, but we never had any costs or alternatives, even though, given the number of changes in the benefit system, that would have seemed a good idea.
As far as I am aware, in the representations we had from the authors of these reports they did not say that it would be a good idea if they did not have to do them. I have not checked all the evidence on the issue I raised last week, but the fact is that the Ministers have been more up-to-date than us. I thought it was worth raising that issue in this Committee, and I am grateful to the noble Lord, Lord Sharkey, if only for flagging this up for Report.
There is an issue here. There were one or two issues on which the Joint Committee did not spend a lot of time, but expressed a bit of concern. Last week the debate on marine accidents showed that as well. It was not a massive issue in the committee, but as time has gone on, it seems as though the importance of the legislation is crucial; obviously I agree with deregulation. The Bill is therefore an opportunity that we should not miss. However, in this case the Government will have to come forward on Report with a much better argument for keeping Clause 61 than they have given so far.
Baroness Donaghy (Lab)
My Lords, I promise that I will be very brief. I was thinking of Lord Newton of Braintree when the noble Lord, Lord Sharkey, moved this amendment—I am sorry that there is only one Conservative in the Room. As Members will know, Lord Newton was chair of the Council on Tribunals, and later chair of the Administrative Justice and Tribunals Council. He argued very strongly against the government proposal to abolish the Administrative Justice and Tribunals Council. I only wish he was alive today, and I hope he is looking down at us. I am sure that he would have been delighted by the way in which the noble Lord, Lord Sharkey, moved this amendment. I am sure that I am not alone in this House in missing him. When I was chair of ACAS I worked very closely with the then senior chairman—as they were called in those days—of the Employment Tribunals Service, my noble friend Lord Noon. He was part of the administrative tribunals system, and I also met Lord Newton on a number of occasions when he was performing the duties of the senior president.
This is part of the chipping away of tribunals. It may not seem very much on its own, but it is part of squeezing the tribunals together—which had totally different functions and history—cutting them back and now not even allowing transparency of decision-making. Also, as a former member of the Committee on Standards in Public Life, I believe that this fails the test of transparency and openness. It is extremely worrying that we have these kinds of developments. It may seem a very small part of a very large Bill, but I hope very much that the Government will reconsider this in the name of transparency and good decision-making.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Lord Rooker Excerpts(10 years, 10 months ago)
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Lord Tyler
My Lords, on this final group of Commons disagreements, I am much more at one with the noble and right reverend Lord, Lord Harries, and much more dispirited that the Government have not been able to move on this issue. Again, it does seem a relatively minor difference between what the noble and right reverend Lord has been suggesting and what my noble and learned friend has been saying about the way the Bill is intended to be explained and implemented by the Electoral Commission.
The noble and right reverend Lord, Lord Harries, and his assiduous commission originally suggested that no staff costs should be included in election expense returns submitted by non-party campaigners. I did not agree with that and I do not now, since some of those costs—for example, in relation to producing and distributing election material—are significant. I think we are all at one on that now, and they could be very significant in particular circumstances. Those costs are already regulated under the Labour Government’s Political Parties, Elections and Referendums Act 2000, and rightly so. Non-party organisations have had to account for those in both the 2005 and the 2010 general elections.
Staff costs in relation to canvassing could also be very relevant to election outcomes in particular circumstances. Clearly paying people to canvass in a way that could promote or procure the electoral success of a party or candidate is significant. The amendment therefore seeks to exclude staffing costs from consideration only when it comes to organising press conferences and rallies and in relation to transport, as the noble and right reverend Lord, Lord Harries, has said. I do not know if my noble and learned friend can give adequate reassurance now on those points. I heard what he said just now, but I hope he may be able to go into some greater detail about the guidance that will be given to campaigners. Perhaps he can say that despite what the Bill says, somehow the incidental costs of someone travelling to a rally or booking the room for a press conference will not be included. However, I do not see where the de minimis provision is in the Bill. How will the Electoral Commission guidance deal with this level of detailed accountancy and audit?
Lord Rooker (Lab)
On that point, bearing in mind that if people are campaigning there must be an opposing view, what is to stop a fourth party in an election demanding of the campaigning group all the detail of its expenditure, if there is nothing in the legislation to prevent it? There is no de minimis, as the noble Lord rightly says. What is to stop the trouble-maker who is opposed to the third party campaigning from forcing that issue on to the third-party group? There is nothing in the legislation. Surely guidance cannot deal with that.
Lord Tyler
I understand the point that the noble Lord is making, and I think he shares my anxiety that, at this very late stage, there is not a clear indication of how that might happen. As he will know better than me having contested even more elections than I have, and with greater success of course—I had a few at council level that were more successful—in the heat of a campaign it is going to be very difficult for any organisation to adjudicate on these matters, be it the Electoral Commission or anyone else. I am afraid that this is a fact of life. It is one of the reasons that I referred to some problems that will undoubtedly occur at the latter stage of an election campaign. I am not sure whether the noble Lord was in his usual place then.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
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Lord Wallace of Tankerness
That is indeed what I had in mind. Time may be short, but I think that we can have some useful engagement on that.
Government Amendment 43 excludes the costs associated with providing protection of persons or property in relation to a public rally or event. While the Government believe that it is important that third parties who organise public rallies or events which seek to influence voting intentions incur controlled expenditure, it is only right that third parties do not incur controlled expenditure ensuring that such events are run safely.
Government Amendment 44 excludes expenses that are reasonably attributable to a person’s disability. This would mean that costs associated with, for example, providing materials in Braille, or ensuring that any person with a disability could attend a public event or meeting, would not count towards the third party’s controlled expenditure.
Government Amendment 42 provides that parades notified under the Public Processions (Northern Ireland) Act 1998 are excluded from the provisions of PPERA. Your Lordships will recall that we had a debate in Committee on Northern Ireland. Although the particular issue of parades was not raised, we were aware that it was a concern that some people had expressed. The noble Lord, Lord Rooker, led an important and helpful debate on Northern Ireland, and we seek to address it here.
Government Amendment 38 amends the defence, currently in the Bill, for a person or third party charged with an offence of incurring controlled expenditure in excess of the spending limit—that is, above the limit in a part of the UK or the constituency limit—to show that they complied with the relevant code of practice so that it covers both recognised and non-recognised third parties. The amendment is needed to reflect the changes to the reporting requirements in a later government amendment which provides for no spending return if the threshold is not reached. We have since identified a couple of points not properly dealt with in the amendment. The first is that the defence does not adequately cover the case where an offence might be committed by virtue of expenditure incurred on behalf of the third party. Secondly, the defence should also cover the offence in relation to targeted expenditure. We think that it is important in both these cases that those subject to regulation should have the benefit of the defence and we will therefore bring forward amendments at Third Reading to deal with these outstanding anomalies.
Government Amendment 41 clarifies the drafting on public rallies, so that it is “public rallies or events” to be inserted by Amendment 42. The reference to “public meetings” is removed, as it was unnecessary and potentially confusing because “other public events” includes public meetings.
I turn to the amendment moved by the noble and reverend Lord, Lord Harries of Pentregarth, and a number of other amendments that have been spoken to in this group. Amendment 34 would amend Clause 26 so that any campaign which could reasonably be regarded as intended to promote or procure electoral success, involving legislation going through Parliament during the regulated period, would not count as controlled expenditure. I listened carefully to the speech made by my noble friend and agree with him that we should not pass legislation which inhibits expression of legitimate opinion.
To incur controlled expenditure and be included in the regulatory regime, it is important to remind ourselves that the third party must be carrying out activity which could reasonably be regarded as intended to promote or procure the electoral success of a party or a group of candidates. We have heard concerns that campaigns against specific policies or pieces of legislation will be caught by the regulation. It might assist the House if I set out how, generally, this will not be the case and the circumstances in which it might be. The noble Baroness, Lady Mallalieu, asked whether we would meet the Electoral Commission. I can tell her that this issue has been raised with us. We have been in discussion with the Electoral Commission and I can confirm that it agrees with this interpretation.
If a campaign group wished to lobby parliamentarians over legislation going through the House, this would not be subject to regulation under Part 2. It is only where the expenditure by a campaign group can reasonably—that is, objectively—be regarded as intended to promote or procure the electoral success of a party or candidates that such activity will be subject to regulation. For example, encouraging constituents not to vote for MPs in the general election if they had voted a certain way on the legislation before Parliament should and would be included as activity leading to controlled expenditure. If a group so closely aligns itself with a policy of a particular party that its campaigning on behalf of that policy can only reasonably be seen as encouraging support for that party, that would also count. That is campaign activity, and where it takes place the Government believe that spending on it should be transparent to the public.
The noble and right reverend Lord, Lord Harries, gave a good example when he talked about new towns. We believe that under his example, people will be able to support or oppose such a proposition freely. It would be caught only if they promoted electoral success, for example, by distributing leaflets reading, “Don’t vote for candidate X”—or X party—“at the next election”, because he or she had supported or opposed the new town. The amendment states,
“unless the expenditure relates to legislation before Parliament during the regulated period”.
If Parliament were to accept that definition, it would really open the door to any amount of expenditure. My noble friend Lord Horam suggested a limit of £300,000; in fact, it would not be controlled expenditure, it would be unlimited expenditure in the run-up to an election which could be directed against or for a particular party. Given that there are restrictions on what the political parties can spend during that period, it is not reasonable that there should be such a wide gap in the provisions that an unlimited amount of expenditure could be related to a particular campaign.
I reiterate that the general position is that if a campaign group wishes to lobby Parliament and parliamentarians over legislation, that is primarily directed at trying to change legislation and would not be subject to regulation under Part 2. As my noble friend Lord Horam said, we are seeking a balance, allowing proper room to campaign but not to swamp.
I also highlight that the Electoral Commission does not support this amendment. It states that such an exemption would allow unlimited spending on a potentially wide range of topics. It believes that it could produce significant and unintended gaps in the coverage of the rules. The issue of the year up to the campaign was raised generally in the debate. Of course, a later amendment will mean that this is actually only a seven-and-a-half-month period. Clearly, if, as a result of experience, people feel that the guidance has not been sufficiently helpful, as we have provided in later amendments, there will be a review post the 2015 election. The amendment as it stands opens up a considerable gap and would lead to an imbalance whereas, as my noble friend said, we should be seeking a balance.
On Amendment 40, my noble friend Lord Tyler seeks to amend Schedule 3 so that costs associated with sending materials to committed supporters who have been actively involved in the activity of the third party would be excluded from the calculation of costs for controlled expenditure. 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 the third party. The amendment goes much further than that. Amendment 40 defines those actively involved as those who have made a donation to the recognised third party, or those who have made a direct communication to the recognised third party in the past 12 months.
Consequently, an individual who writes to a campaign organisation with a general inquiry about their activities, or even one who lives next to an animal sanctuary who writes to them complaining about the noise, might possibly be regarded as being actively involved. I do not believe that that is my noble friend’s intention, but I fear that using that definition allows the provision to become ineffective, particularly in an age of instant electronic communication.
The Electoral Commission does not consider people to be committed supporters if they have simply signed up to social networking sites or tools, or appear on mailing lists that may have been compiled for general commercial, campaigning or other purposes. An exclusion of costs, based on direct communications with third parties—whatever the nature of that communication—creates a wide exemption.
I know that my noble friend has worked hard and has met officials to try to resolve this; I regret, however, that we fear the definition he has come up with is too wide. We believe that the better way is that the Government and the Electoral Commission believe that the Electoral Commission’s guidance is the proper place to outline who counts as a committed supporter. In its briefing the commission outlined that it does not support this amendment due to the fact that it is unclear what scale of campaigning would be exempted from the regime or how the test would apply in practice.
Finally, my noble friend referred to Amendment 45A to ensure that any changes to the range of activities outlined in new Schedule 8A would be made through an affirmative resolution procedure. That is already the case in the Bill as drafted. I draw noble Lords’ attention to Clause 26(12), which amends Section 156 of PPERA so that any order under new Schedule 8A, as inserted by Schedule 3 to the Bill, is by affirmative resolution. It does so by amending the existing section of PPERA, setting out what parliamentary procedure applies to orders and regulations. The Government agree that it is important that any changes to the list of activities that incur controlled expenditure should be subject to the affirmative resolution procedure.
I hope that that reassures my noble friend. In the light of the explanations given, I hope that the noble and right reverend Lord, Lord Harries, is prepared to withdraw his amendment.
Lord Rooker (Lab)
I have thought of a question while the Minister has been speaking, which is not in any way diversionary. It ties in with the comments made earlier about what would happen if, in this period of a year, a Government sought quite deliberately to save legislation. The Minister answered the point about legislation in Parliament, but there are highly controversial matters outside Parliament; people do newspaper adverts and all kinds of things. I have been thinking about this question, having gone through paperwork recently. When we get close to an election, the Cabinet Secretary and the head of the Civil Service will issue an edict around Government to Ministers and departments about what you can do and what you cannot do in that period. Is that going to change now that we have a fixed-term Parliament, with this window and this picture of a much larger window?
This is not purdah, but an extended period in which other people are constrained about what they can say and do. Will the advice that normally comes out close to an election from the Civil Service to Ministers actually change and take account of what is being done in this legislation?
Lord Wallace of Tankerness
My Lords, I always know it to be dangerous when the noble Lord stands up and says he has been thinking about something—and so it was.
I took the fixed-term Parliament legislation through your Lordships’ House and I do not recall—nor, indeed, have I seen at the present time—anything that suggests there is going to be any change. Of course, that means that there still will be a period during which Governments are not allowed to do this; but I have not seen any proposal to reflect the fact that there is a fixed-term Parliament. When that period will arise will become more apparent, or more foreseeable. If I have got that wrong, although I do not think I have, I will inform the noble Lord.
Lord Rooker
I was minded to vote for the amendment, but, having read the letter twice now, does the noble Lord not accept that the Charity Commission does not agree with Amendment 36? That is crystal clear. There is incompetence of a very high order by the Charity Commission, by the way, because it does not do a very good job. However, it does not agree with Amendment 36, so do we have to spend a lot of time on this?
Lord Gardiner of Kimble (Con)
My Lords, with the greatest respect, we are really getting beyond the guidance in the Companion regarding Report stage. I think that in a sense the House would like to make some progress.
Lord Rooker
My Lords, I will take three minutes; I am not going into technicalities and I freely admit I am going to introduce a bit of partisanship.
The Charity Commission states:
“Charities must never support political parties”.
If that was the case—if that was the norm—we would not have a problem. I would like to vote for this but charities have got to be regulated, even during the electoral period. I make no apology: I raised this before, at Second Reading.
Page 14 of the Conservative manifesto for the 2010 election shows a full-page portrait of the chief executive of a large national charity, extolling the virtues of the policies set out on the subsequent pages. This was the Conservative Party manifesto using a charity for party-political purposes. I was appalled when I saw it and could not understand why there was not a row about it. That chief executive, whom I later recognised, turned up in this House a few months later. I am not going to mention her name because I have not given notice, but the charity is Tomorrow’s People. This was a thundering disgrace and I would like, in the discussions that are about to take place, an assurance that political parties will submit their manifestos to the Charity Commission and the Electoral Commission to make sure that this kind of abuse of the system and of charities does not happen again, either by the Conservative Party or, inadvertently, by any other political party.
I apologise for introducing a note of partisanship, but I have been waiting a long time to say this.
Baroness Howarth of Breckland (CB)
My Lords, with due respect to the House, as I have not spoken on this, a number of the noble Lords who are proposing the amendment are suggesting that they will not take it forward but that there will be other debates. There are amendments later which are extremely important and vital to the sector if it is to carry out its work. I would be grateful if the House could move on.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Lord Rooker Excerpts(11 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Rooker
“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.
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.
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.