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

Lord Tyler Excerpts

Tuesday 22nd October 2013 Lords Chamber

[Lord Tyler (LD)]

My Lords, in many years of public life I cannot recall a set of proposals that have been so misunderstood and, to some extent, misrepresented. I hope that during this debate, and particularly in Committee, we will be able to reassure the many charities and smaller campaign groups that have been in touch with us that the Bill is not about stopping them contributing to our democracy. As my noble friend the Minister said, the target is the very wealthy and powerful interests that would seek to influence executive decisions and our elections, and which evidently feel threatened by greater transparency. I am interested to see that some charities that have been in touch with me now see that they have more of a problem with charity law than with the Bill. They may have to look carefully at the intentions of the Bill and at the detail of the charity law with which they may have a problem.

The Bill is a first, essential step towards taking big money out of politics: an issue that has been with us ever since Bernie Ecclestone, the tobacco lobby and Formula 1 was brought to our attention in the early years of the Blair regime. That has obviously increased our awareness of the threat to our democracy. I recall that the noble Baroness, Lady Royall, urged the Government to introduce a lobbying Bill in her contribution to the debates in May—and I endorsed her request. Ironically, she referred specifically to the tobacco lobby and to the Murdoch empire. Her colleagues in the previous Government have good reason to remember both those organisations.

I think that it was the present Prime Minister who said that sunlight was the best disinfectant. As the Minister said, important steps have already been taken to increase transparency in Whitehall about who is meeting whom. However, the Bill will take that a step further, and if we can improve it further again by building on the register, as I will come to in a minute, that will be a very important step forward.

Part 2 deals with the considerable potential threat from “super-PACs”, which are now so evident in the USA. We have to face up to the fact that the capacity of millionaires to set up organisations that could each spend £793,500 in England—and do so in just one constituency if they chose to, under present law—could have a major impact in distorting results.

I am alarmed to note that I have contested some 12 elections, and on each occasion have been advised, on pain of serious penalty, to watch every penny spent in support of my candidature. On one occasion, however, when I was defending a majority of just nine votes, I was targeted by a shadowy pro-apartheid group that helped to secure my subsequent defeat. I want to see that type of activity brought into the light of day, and the Bill will start that process.

On Part 1, if I may go into a little more detail, I also have some practical experience since at one time, before politics took over, I had a real job as the head of a public affairs consultancy advising NGOs, environmental organisations, local government and trade associations—what I suppose would now be described as lobbying. The Government’s intention—rightly, in my view—is not to regulate lobbying but to ensure that the sunshine is very firmly imposed on it. We need to know who has the ear of Ministers and other decision-makers. To my mind, including in-house lobbyists would be a red herring and would create a huge telephone directory-style registry, including a huge number of people who would actually be irrelevant to greater transparency. It would not improve the extent to which we could see what was actually going on, because it would lose the wood for the enormous forest of trees, and hide in plain sight what was being done in the name of those paying for it to be done.

Meeting data about interactions with in-house lobbyists are already published, as my noble friend said, and if Oxfam or even Tesco meet a Minister, we know whose interests they are promoting. However, this could of course be greatly improved with a central database, an easily accessible online front end, through which anyone—the media, individual citizens, Members of your Lordships’ House—could establish who has met whom in Government, and indeed what the subject has been at what stage, without, as is currently the case, having to go through 60 different Excel spreadsheets, each parcelled away in different obscure parts of departmental websites. The key to transparency is easy access and simplicity, and the register is a very good first step in that direction.

During the passage of the Bill I will examine two key areas for the improvement of Part 1. First, as has already been referred to, we have to ensure that the meetings of special advisers, who are not directly responsible to the Permanent Secretaries in the same way as other members of the Civil Service, with any consultant lobbyists who have interacted with them are appropriately registered. We should remember that two of the most dramatic scandals involving privileged access in recent years involved ministerial advisers rather than Ministers themselves. Secondly, we have to look very carefully to see how the new statutory register can complement existing voluntary arrangements. The register that the Government propose is deliberately a statutory minimum, but surely it would be perverse if lobbyists then departed from their responsibilities under existing codes put in place by the UK Public Affairs Council.

As I said earlier, there has been a great deal of understandable misunderstanding, but some mis- information as well, about Part 2 of the Bill. I suspect that other Members of your Lordships’ House over recent weeks—in my case, over recent months—have been receiving e-mails referring to a supposed threat to freedom of speech. This is not a gagging Bill; it concerns itself not with what people say but with what they spend. That is the critical issue.

Those of us who have experience of electoral law know that that principle has been there since 1883, since people back in the 19th century were very concerned about buying votes. I cannot see why anyone who is attempting to influence the outcome of an election—to buy votes, if you like—who happens not to be standing as a candidate, should be able to spend unlimited sums on,

“promoting or procuring electoral success”.

As has already been made clear, that definition has stood four-square in two general elections, and MPs have done the right thing in returning to it.

The current definition in Clause 26 of activities that,

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

for a party or candidate, has been in place since PPERA 2000. The Commons rightly agreed to take out the rather vaguer phrase about “otherwise enhancing the standing” of parties or candidates.

I absolve the noble Baroness, Lady Hayter, of any responsibility for the 2000 Act, since I do not think that she was directly involved then. However, many of us at both ends of this building were involved. We should assure her that it has stood the test of time. We took infinite trouble in both Houses to get the definition right. Surely it is ridiculous to say at this stage that the definition is defective, as she implied. If it had been so defective, surely the Electoral Commission, with its practical experience, would have recommended over many years that it needed updating, and, presumably, the Labour Government of the day would have implemented the recommendation. Can we at least accept that the definition stands four-square and is accepted on all sides?

I accept that there is quite a different issue when we come from the definitions to the spending limits, which are at present probably indefensible. The total limit for the United Kingdom is just shy of £1 million. The English limit of £793,500 could be focused on just one constituency. What if the oil companies decided to target a certain Brighton constituency to remove a Green MP, or other interests piled into a few seats held by Members of Parliament opposed to the review of the Hunting Act—which is a practical proposition—or piled into constituencies of prominent Conservatives who happen to favour continued United Kingdom membership of the European Union? The Americans have been teaching many people in this country how to target with big money.

In the past few days I have met representatives of the RSPB, Countryside Alliance, Transparency International, 38 Degrees and Friends of the Earth, and have discussed the situation with many others, through the good offices of the commission of the noble and right reverend Lord, Lord Harries, to whom I pay tribute. All the organisations seem to agree that the existing regulations may be flawed, so the question is how to get the revised regulations right.

For example, the threshold for registration is obviously a big concern for these organisations. You could plot on a graph transparency on the one hand and bureaucracy on the other in very many areas of life. If transparency is low, the regulatory burden tends to be low, too. If accountability is strong, it is likely that the regulatory burden will be significant. The threshold is a question of where we plot this legislation on that graph. The lower thresholds proposed by the Government will improve and increase the accountability of campaign spending. Conversely, they inevitably increase the burden on smaller organisations. It will be our responsibility in your Lordships’ House to get the balance right when we come to Committee.

The second area of concern among a number of organisations is Schedule 3. These provisions flow directly from the Electoral Commission’s recommendation that the activities for which non-parties should have to account should be the same as those for which parties have to account. In that, it is perfectly reasonable to question how staff costs should be applied in the schedule. We will all listen to what the groups say about this and will probe the matter in Committee.

Reference was made to the way in which the Government’s proposals have been examined. Obviously, I think that we would all agree that if timing had permitted, pre-legislative scrutiny would have been desirable. However, the cross-party talks—of which I have direct knowledge—between the three major parties on the area of political funding effectively prevented this. It may well be a criticism that the Deputy Prime Minister should have realised that he was being strung along by the other two parties—that they were not serious about getting a result. However, given that they could not come to an agreement, it was obviously important to move on this particular issue, which was also agreed between the three parties.

[Baroness Royall of Blaisdon (Lab)]

My Lords, can I nail the myth that is going around that was perpetuated by the Deputy Prime Minister in the Commons last Tuesday? There were no substantive talks at all on third-party funding in the talks to which the noble Lord refers. Far from the current proposals being discussed extensively, they were never raised, never proposed and never discussed. Also, the talks did not break down; they ceased but they did not break down. I wish the noble Lord would not keep perpetuating that myth.

[Lord Tyler]

My Lords, my information is different on both points. We can have a further discussion after this debate. There was, of course, agreement between the three major parties that there was a need to address the issue. I hope the noble Baroness will agree on that, because there certainly was. Since then, unfortunately, there has been a tendency to jump on the bandwagon.

Meanwhile, there has also been a repetition of the idea that somehow the Electoral Commission was never involved in the exercise. As I have previously told your Lordships’ House, I have served on an informal all-party advisory group for the Electoral Commission for some years. It is simply not accurate to say that the commission has made no contribution to the thought process that led to this Bill. I will quote two warnings given by the commission in February 2013, under the heading, “Regulating Third Party Campaigning in the UK”. The first states that,

“the rules on general campaigning that is intended to influence voters should reflect the rules for political parties by covering events, media work and polling, as well as election material”.

The second states that,

“the Government should have order-making powers to update the rules on general campaigning, in order to deal with changing campaign methods in future”.

In the months that followed, between February and the publication of the Bill, there was indeed a continual dialogue, and I have a letter from the chair of the commission to confirm that. It is perfectly true that it was not consulted over every single part of the Bill, but a general dialogue continued about the necessary modernisation of the regulatory regime. I think that most Members of your Lordships’ House would say that it is preferable to have full scrutiny of a statutory process than to have a change in ministerial order-making powers.

Our duty now is to get the detail of the Bill right and to reassure those charities that have been unduly concerned. In particular, we will have to be satisfied that registration thresholds, the scope of Schedule 3 and the expenditure limits strike the right balance between transparency and bureaucracy. Delay will not help those who are concerned with this detail. Campaigners need time to assess their plans for the run-up to the May 2015 general election—and, of course, the Electoral Commission needs certainty so that it can give good advice. That is why it recommended opposition to the delaying tactics proposed in the other place.

Your Lordships’ House has an excellent reputation for detailed scrutiny. I hope there will be agreement today that we should get on with that job. This can be a good change in the law that will shine a light on a small but significant area of opacity in lobbying and will prevent the distortion of our politics by wealthy interests.

--- Later in debate ---

[Lord Harries of Pentregarth]

I thank the noble Lord, Lord Phillips. I hope very much that the Minister will agree with that.

There is just one other point I would like to make. The noble Lord, Lord Tyler, has suggested that the present definition of an electoral activity promoting or procuring electoral success at any relevant election is accepted by virtually everyone concerned. I think that charities have not in fact been quite so happy about that as he suggests. There is still genuine uncertainty because this is a genuinely difficult area. If, for instance, a campaigning group on climate change looks at the policies of the different parties and assesses them according to whether it thinks that their policies are desirable as far as climate change is concerned, does that count as an activity for promoting or procuring electoral success at any general election? It seems to me that people of good will could argue that either way. Therefore, is there not a need for government lawyers, Charity Commission lawyers and the lawyers of charities to get together to see whether this really is the best definition or whether we can come up with something better?

[Lord Tyler]

I agree precisely with what the noble and right reverend Lord has just said. As was said earlier by the noble Lord, Lord Ramsbotham, it is charity law that has restricted many of these activities in the past. We have to make sure that these particular forms of legislation are mutually compatible so that everybody is clear where they stand.

[Lord Harries of Pentregarth]

That highlights the final point I want to make. Before this Bill proceeds any further, would it not be sensible for the Government to get government lawyers and charity lawyers together to see if we can get total agreement about the definition of the key phrase in this Bill?

This highlights the final recommendation of the Joint Committee on Human Rights that there should be a pause in this legislation. The committee says that,

“our primary recommendation is to urge the Government to 'pause' the Bill's passage through Parliament in order to allow for further consultation and scrutiny”.

It would be much better to have a Bill before the House which unites the Joint Committee on Human Rights, the Constitution Committee, the Political and Constitutional Reform Committee, the Electoral Commission and the charities—bodies which at the moment appear to have very severe doubts about it.