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

Debate between Lord Tyler and Lord Bishop of Oxford

Tuesday 28th January 2014 Lords Chamber

[Lord Harries of Pentregarth]

I was aware of the noble and learned Lord’s point, and I was going to come to it. I take that point—he said quite unequivocally that he did not expect campaigning groups to log all those small items—but the fact is that they are expected under the Bill to take staff costs into account. That is what the Bill states. If they are expected under the Bill to take staff costs into account, presumably they are expected in some way to provide a note of what those costs are. They have to go about that in one way or another, and that involves a lot of scrutinising of the cost of what they do and adding it up.

This is a bureaucratic nightmare. It is no accident that the Electoral Commission is reluctant to support the Bill on this particular issue. It is no wonder that political parties have resisted taking staff costs into their accounts for this very reason of complexity.

This amendment does not have any bearing on the situation about which some politicians have expressed concern, in which a third party may want to second staff to work for a party or a candidate. That is not a situation regulated by third-party rules. Such costs would either count towards a party’s spending limit or a candidate’s spending limit, depending on the timing and nature of the secondment. Ensuring appropriate enforcement, rather than changing the rules, is the appropriate response to such concerns.

This amendment does nothing to frustrate the Government’s purpose of trying to prevent big spenders from distorting elections through third-party campaigns, and it is one that matters very much to charities and campaigning groups, because of the regulatory burden. I beg to move.

[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?

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

Debate between Lord Tyler and Lord Bishop of Oxford

Tuesday 21st January 2014 Lords Chamber

[Lord Harries of Pentregarth]

The noble Lord knows that I value simplicity even more than he does. Would he not agree that it was right to try to respond to what the Minister said about the distribution of leaflets, and that if you were doing that, you had to try to define what was meant by focusing on a constituency or influencing the voting intentions of people in a constituency? Would he not also agree that, while there was, of course, a qualification at the end of the last advice from the Electoral Commission that there were probably difficulties remaining, the difficulties with this Bill are now far less than they were originally or even, perhaps, with his own amendment at an earlier stage?

[Lord Tyler]

My Lords, in response to that, I certainly agree that the Bill is greatly improved and I pay tribute to the noble and right reverend Lord for the amazing amount of work that he and other noble Lords have undertaken to achieve that purpose.

I regret very much the speed with which we have moved from Report to Third Reading and that we did not have a genuine opportunity—we only had a comparatively few hours yesterday—to look at this together. I regret even more that any amendments passed today, whether government amendments or others that are passed by your Lordships’ House, will be considered by the other place within 24 hours. The short period for discussion of any necessary improvements is very unfortunate. Had his amendment simply brought in the point raised by the Minister about leafleting, and therefore stuck rigidly to the simplicity of the first provision in his amendment, I would be much happier about it.

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

Debate between Lord Tyler and Lord Bishop of Oxford

Wednesday 15th January 2014 Lords Chamber

[Lord Tyler]

As my noble and learned friend Lord Wallace has said, I and the noble and right reverend Lord, Lord Harries, the noble Baroness, Lady Mallalieu, and my noble friend Lord Cormack have a subsidiary but quite important additional amendment, Amendment 39A. I am sure that all four of us welcome the recognition that my noble and learned friend Lord Wallace has given to the fact that the 2000 Act—this is not about this Bill; it is about the 2000 Act—has caused real problems for any organisations that were encouraged to work together in what were then called coalitions. Since then, the term “coalition” has gained a different connotation, so perhaps we should talk just about “working together”. The way in which this matter was handled in 2000 has caused real concerns. I know from reading Hansard that this confusion was caused at the last minute by a government amendment during the Committee stage of the Political Parties, Elections and Referendums Bill, as it then was, in this House.

It is curious that, over the years since 2000, very few of us seem to have heard of the problems that were caused by those provisions. Neither the Electoral Commission nor the Charity Commission ever came forward and said that these matters needed review and either repeal or revision. However, we now know, because a large number of organisations have been in touch with many Members of your Lordships’ House saying that this is a real practical problem—hence the Government’s amendment, which is excellent so far as it goes. However, as I shall seek to explain in a moment, there is one additional problem which I hope my noble and learned friend will be able to say he can look at again, since, as he just said, there will be some additional clarification at Third Reading.

As my noble and learned friend has said, the new provisions should be a major help to smaller players in those joint campaigns, ensuring that others can account for their spending, but the approach in Amendment 39 does not go quite far enough. The fundamental problem with the so-called coalition arrangements in the 2000 Act is as follows. If, let us say, Friends of Earth intends to spend £300,000 on a campaign about climate change and does so in coalition with, for example, Oxfam, which contributes £25,000, under PPERA both are deemed to have spent, or to plan to spend, £325,000. Clearly, that is absurd, because that would mean that Oxfam, which had contributed only £25,000 to that campaign, might well then be precluded from doing anything else on other issues, which it is clear was not intended by the 2000 Act and which, I hope, is not something that we would intend to do today.

To prevent people working together and therefore having to multiply the spending limits under the 2000 Act by a factor equal to the number of organisations involved seems to be most peculiar. Removing the rules altogether would create another new loophole. I keep saying to colleagues in the third sector, “We’ve got to be very careful that we don’t increase flexibility for what we think is a good cause only to create a loophole for much less meritorious campaigning activity”. However, what is unfair about the rules is not that some spending on common campaigns is counted together to prevent an overall breach of the limits but the fact that spending by one organisation on one campaign can then restrict the campaigning of another organisation on a totally different campaign. In my example, Oxfam would be deemed to have spent £325,000 not just for the purposes of that climate change campaign but for all purposes. It would then be very close to the limit, which would then mean that it would have to worry about whether any of its other spending on, let us say, development targets could,

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

of a party or candidate.

If that organisation’s trustees believe that the future spending could be so regarded, they would be left with a very small amount of headroom in the national spending limit even though they had contributed a relatively small amount of money to the tune of £25,000. Therefore, £25,000 spent on climate change would mean very little room left for spending on other development targets. I am sure your Lordships will see that that would not be just and right and does not meet the objectives either of the existing law or of this Bill.

Our Amendment 39A would build on the progress made by the amendment moved by my noble and learned friend Lord Wallace in setting out the principle that there should be an overall cap on spending by any one joint campaign or by any one individual organisation. However, new subsection (6B) proposed by my amendment states that,

“expenditure by a third party within the limits set out in Schedule 10 in pursuance of any matter unrelated to an arrangement and which could not reasonably be regarded as intended to achieve a purpose common to an arrangement”,

should not be so restricted by the coalition rules in PPERA 2000.

The amendment would provide for some affected organisations a silver lining in the passage of this Bill. In short, it would remove a very unjust element of the existing law which has caused quite unintended problems for many non-party campaigners. Their arrangements would be improved immeasurably. The amendment would also improve significantly what the Government have so far managed to come up with. I hope that my noble friends will recognise that the problems with the 2000 Act are considerable. This was one very specific problem that was caused to a large number of organisations. I hope therefore that before Third Reading, when, as my noble and learned friend has already indicated, there has to be some further clarification and therefore amendment of the set of amendments that he is putting before the House today, he could look also at this additional problem, which otherwise will go unresolved and continue to cause considerable difficulty for all sorts of organisations.

[Lord Harries of Pentregarth]

I, too, thank the noble and learned Lord, Lord Wallace, for the government amendment, which is a positive response to the suggestion put forward in our commission’s report, as he acknowledged. I have added my name to the amendment tabled by the noble Lord, Lord Tyler. I shall not repeat the reasons that he has already put forward, but it is an important amendment for charities and campaigning groups generally because they do a huge amount of campaigning not just with one coalition but with a whole series of coalitions. For instance, aid agencies may be engaged in a coalition on overseas aid and, at the same time, be engaged in a coalition on climate change. That is the way in which they work.

I want to make a point that has not been made so far in any of these debates. It concerns the fundamental purpose of this part of the legislation and whether it will achieve what the Government hope. The purpose of the legislation at this point is to stop front organisations drawing on large sums of money to distort campaigning, but I suggest that the legislation as we have it now will not have that effect. Let us take a hypothetical example. Six very strong anti-Europeans have dinner together. They have access to large amounts of money from various sources. They go away to different parts of the country and they decide to start six different campaigning organisations under different names. But, in fact, everybody knows that their purpose is to get Britain out of Europe. Would they be caught by this legislation? No. I have read carefully the briefing note presented by the Electoral Commission, which says that you are not working together—that is, you are not engaged in co-ordinated campaigning—if you have informal discussions with other campaigners but do not discuss your plans with them in any detail—all this party will have done is have dinner together; if you speak at an event organised by another campaigner but do not participate in other ways—they could even speak at each other’s events; and if you do not consult other campaigners about what you should say in your campaign or how you should organise it. However, it goes on to say that you can sign a joint letter together. I hope that the noble and learned Lord will take seriously the fact that the legislation as it now stands will not have the desired effect of stopping big money coming in and using front organisations. We firmly support the intent but we do not think that the Bill will achieve it.

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[Lord Tyler]

My noble friend is right. He and I have relatively recent experience of these things. The normal figure is around £12,000 during the election period. As I will come to in a moment, that could be swamped under these proposals, and therefore this is an absurd anomaly. I understand why the Government have arrived at their position. Their formula sounds simple, but it may be so simple as to be unequal to the task in hand. Equally, the move in Amendment 53 to do away with different limits for constituency spending seven months before an election, and constituency spending seven days before, seems to me to lose what is an important and not particularly complex distinction in the name of simplicity—and I am not sure the Government have got this right.

I ask the Minister to consider carefully the horror story that could emerge. Imagine: a campaigning group could come into a constituency and spend £19,999.99 in the last seven days of the campaign with the aim of affecting the outcome in that constituency, and it would not need to register. A second group, unrelated to the first, could, during those seven days, do the same. It would not register. A third group, unrelated to the other two—not a coalition, not working together— could do the same. In the last few days of a campaign in a marginal constituency, just under £60,000 could be spent, completely swamping the amount permitted for a candidate and a party, which is around £12,000, in one constituency. The candidates are, as I say, limited in those final four to six weeks.

Because this spending would not be registered, it might not be revealed until after polling day. Think of the mess that that would cause to our electoral law. Because such groups, though technically in breach of the law, would not need to register, no one would be any the wiser about what they had been up to. My noble and learned friend has said that he is looking at this section with a view to some clarification, and I think he will have to agree that there is a major loophole looming in front of us. I therefore request that he look carefully at Amendment 46ZA. He may find a better solution but a solution must be found, otherwise political parties and those who will be looking at this legislation when it goes back to the other place will not have seen this particular problem, because until now the registration threshold has not been so high. It is only under the present Government’s changes in this House that it has been raised to this height.

I hope that my noble and learned friend will be able to give some reassurance to those of us on all sides of the House who are concerned about such spending that the Government are not prepared to accept this loophole.

[Lord Harries of Pentregarth]

My Lords, Amendment 46A in my name concerns the spending cap for England. First I would like, on behalf of the commission, to warmly welcome the raising of the registration thresholds by the Government. I think that has done more than anything else to reassure the smaller charities; we give the Government a very warm thank you. We also warmly welcome the raising of the spending cap for Wales, Northern Ireland and Scotland. The spending cap for England, unlike that for Wales, Northern Ireland and Scotland, has been reduced by 60%. That reduction has taken place with an increase in the number of activities to be regulated and without taking inflation into account.

It is true that not many campaigning groups and very few, if any, charities would spend a high figure coming anywhere near that. The one I have checked that does spend quite a lot of money is Hope not Hate, which campaigns against racism all over the country. It is not a charity but a campaigning group. In 2010 it spent £319,231. That is very nearly the limit for England as we have it under the Bill, which is £319,800.

There was no evidence of abuse with the previous spending caps for England, and no rationale has been given for this reduction by 60%. Even if the Government are not willing to revert to the PPERA limits for England, I ask the Minister whether he sees any scope for some kind of compromise between the drastic reduction which has been brought about by the Bill and the spending limits there were for PPERA.

--- Later in debate ---

[Lord Tyler]

My Lords, this amendment, which I am moving on behalf of a number of noble Lords in different parts of the House, deals with some small changes to a previous amendment that we looked at in Committee on constituency limits, but they are changes that I know will be very welcome to a number of organisations which have been in touch with several Members of your Lordships’ House. It received considerable support across the Chamber in Committee and has two compelling advantages to recommend it.

First, it retains the Government’s intention to have a constituency limit. That is surely central to the Bill. As I have said consistently, I strongly support that and I know that a large number of other Members of your Lordships’ House also think it is important to retain that. However, even if we were to take it out, as some have suggested, I would certainly expect that Members of the other place would need no whipping at all to put it back in, for the reasons that were advanced so eloquently by my noble friend Lord Cormack a few minutes ago. Surely even Labour MPs would want it to be put back in.

The second advantage to the amendment is that it very closely and carefully defines what the constituency limits should apply to. As many charities and NGOs, big and small, have pointed out to me and to other Members of your Lordships’ House, they are not used to dealing with constituency boundaries; they have quite a different sort of geography from those of us who are involved in politics. Therefore, trying to assess the relative effect of, say, a rally in different constituencies would be quite problematic. It would be problematic for the political parties too, and for that reason we, as politicians, are not asked to account for it.

I shall give a practical example. I once chaired a rally for the five constituencies, as they then were, in Cornwall, and it took place in one particular constituency. It just so happened that we won all five seats but that did not have anything to do with my chairmanship at that rally. However, how would the costs of that rally be allocated to each constituency? You could allocate the costs to one constituency but what about the other four? That clearly is not what this Bill is all about. It really is not possible to measure the effect of a rally, or indeed a billboard or a press conference, on the result in an individual constituency.

I have one other example. I lost a lot of hair—or, rather, most of it went grey—in two elections arranging the national tour of the battle bus for the then joint leaders. Your Lordships may remember that at one stage we had two leaders in the alliance—the two Davids—although they did not always see eye to eye. That caused me a great deal of aggro. However, how I would ever have accounted for five minutes in this constituency, 10 minutes in that constituency and an hour in that constituency if I were running a campaign on behalf of a non-political organisation is quite beyond me.

Amendment 52, on which I am very grateful for the support of the noble and right reverend Lord, Lord Harries, the noble Lord, Lord Cormack, and the noble Baroness, Lady Mallalieu, would limit the scope of the constituency regulations to just activities where people communicate with specific voters. The one advantage of this amendment is that it ties down very specifically the activities that target specific people at a specific address in a specific constituency—letters or leaflets sent or delivered to voters, or telephone calls directed specifically to them—and which try to influence or ascertain their voting intention. Other activity would still have to be accounted for but only on a national basis. Therefore, if it is the national tour of a battle bus, arranging rallies or whatever, that has to be accounted for nationally but under the more generous national limits.

What has been made clear to us by many organisations which think that they may be involved in the activities covered by the Bill is that, if they are asked to account only for those activities that specifically target specific individuals, that will make their lives a great deal easier. It will retain the central purpose of the Bill, which is to stop big-money campaigns dwarfing the limits that candidates have to adhere to—my noble friend was very eloquent on this point a few minutes ago, as was my noble friend Lady Williams—and it will mean that the additional costs of activity directed at specific candidates can be identified neatly, clearly and succinctly.

The Electoral Commission has very clearly endorsed this amendment and expressed clear support for it because it makes simpler the guidance that it will have to give and the subsequent monitoring that it will have to undertake. I beg to move.

[Lord Harries of Pentregarth]

I support the amendment for the reasons that the noble Lord has set out. Constituency limits have been of very great concern to charities and campaigning organisations. I am fully aware of the kind of concerns raised by the noble Baroness, and, as the noble Lord, Lord Tyler, indicated, this issue has also been a very great concern for the Electoral Commission because it does not see how it can regulate and enforce this area. The noble Lord’s amendment will make it far easier for charities to be regulated by the law and for the Electoral Commission to regulate it.

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[Lord Harries of Pentregarth]

It is a great relief to be able to welcome an amendment without any qualification at all; but it might be worth reminding ourselves why a review is so essential. First, with the existing PPERA, most charities were not even aware that they were regulated; it is only recently that they have come up against it. Therefore, there are fundamental problems with PPERA that have only just been revealed, and probably we have not yet had proper time to put them right.

Secondly, we have had a very short time to think about and amend the Bill before us. As we know, there was no pre-legislative scrutiny and no six-month period for consultation—which we recommended. We have had only a very short five-week period. The commission that I chair has always made it clear that the recommendations we put forward were only for the 2015 election, because we could not see the answer to a number of issues. In particular, the issue of coalition working keeps coming up and we have not yet found a satisfactory answer to that. Therefore, it is extremely good that the review body is going to be set up and that it will be in time to watch what happens with the election. It is going to have to report within a year, which of course meets the concern raised earlier by the noble Baroness about a sunset clause. It will now have to report within a year.

I have only one question: why have the Government decided that the review should be done by one person, rather than by a committee of Parliament?

[Lord Tyler]

I very much welcome the initiative that my noble friends have taken on this. It is vastly preferable to a sunset clause, precisely because it will start at the right moment. The timing is going to be critical, as the noble and right reverend Lord and my noble and learned friend said, because it will see right through the process of the next election and beyond. For that reason it is preferable to a sunset clause.

I, too, wonder whether the precise definition of a “person” is appropriate to this, but we will have to judge it on its results. Because my noble and learned friend has put into his amendment that a copy of the report will be laid before Parliament, the process thereon is extremely interesting. If major changes are required in this legislation, we will need to know quite quickly in order that we do not run into another period of rapid digestion, as we have on the Bill.

I particularly want to underline the point made by the noble and right reverend Lord, Lord Harries, just now. We should have this review of the 2000 Act. I take some responsibility, because I sit on a little, totally informal cross-party advisory group for the Electoral Commission. We were never forewarned of all the problems with the 2000 Act that have now come to light—not least, the coalition issue to which the noble Lord has just referred. It has been 13 years; the Electoral Commission never forewarned us of the difficulties it was encountering in giving appropriate advice to organisations that wished to campaign in this field. The Minister has taken elaborate and proper precautions to make sure that the situation never arises again, and I congratulate the Government on that.

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

Debate between Lord Tyler and Lord Bishop of Oxford

Wednesday 18th December 2013 Lords Chamber

[Lord Harries of Pentregarth]

My Lords, I wish to speak to Amendment 169A. I would like to ask the Minister what the rationale was behind such a drastic reduction in the spending limits. For England it was a 60% reduction; for the other nations it was 70%. This is a vast reduction, for which no reason was given. The commission which I have the privilege of chairing simply wishes to revert to the original PPERA figures plus inflation. Those are written in the amendment, and would mean £1,125,000 for the year for England; the comparable figures for Scotland, Northern Ireland and Wales would be £155,000, £86,000 and £40,000. We are simply recommending the original PPERA figures plus inflation.

I will give one example of a big spending campaign which is concerned about the cap. In the 2010 general election, Hope not Hate registered £319,231 of spending in England with the Electoral Commission. It is a national grass-roots organisation that seeks to challenge and expose openly racist political parties, candidates and policies. It works on the assumption that there is a risk that far-right racist policies might be campaigned on vigorously at election time, and it wishes to oppose that with racially tolerant policies. For example, in an area like Barking and Dagenham in 2010 where it mobilised people, its spending included printing of leaflets and Hope not Hate newspapers, staff time to write campaign literature, media coverage costs, communicating the campaign to supporters, and its battle bus bill. Of course, an organisation such as this, quite properly, needs to register and needs to be totally transparent in what it does, but the spending limits proposed in the Bill would severely reduce what that organisation would be able to do. It spent in 2010 £319,231, which is above the limit in the Bill. There is clearly a strong case for reverting not only to PPERA but to PPERA plus inflation on the cap.

[Lord Tyler]

I wonder if I may ask the noble and right reverend Lord a question. He and his commission have justifiably encouraged us to see the package—how different elements of the Bill stick together. I draw his attention to the fact that his amendment, combined with other amendments to remove all constituency limits that he and his colleagues have proposed, would, if they were to be implemented, mean that the sum of £1.25 million could be spent in a small number of target marginal constituencies. That is a huge sum of money. When we come to the other sections that deal with constituency limits, will he think about the implications of the interaction between those two propositions from his commission?

[Lord Harries of Pentregarth]

The commission is keen to emphasise that every aspect of the Bill is integrated with every other. Clearly, constituency limits have to be taken into account very seriously when we are thinking about raising either the threshold or the cap.

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

Debate between Lord Tyler and Lord Bishop of Oxford

Wednesday 18th December 2013 Lords Chamber

[Lord Tyler (LD)]

My Lords, I have tabled this proposed new clause with my colleagues, my noble friends Lady Williams of Crosby and Lady Tyler of Enfield and, in a private capacity, the noble and right reverend Lord, Lord Harries of Pentregarth. We have given it the heading:

“Third parties acting in concert”.

We think that that is a better definition of the problem that has been brought to our attention on many occasions than using the word “coalition”, which might have other overtones.

Among all the groups that we have met, the present PPERA 2000 rules on this type of working between different organisations have emerged as a major area of concern. Indeed, they have caused great confusion and, more than anything else, given rise to the alleged chilling effect among smaller organisations. I checked with the Electoral Commission earlier this week about what exactly is meant by the present rules. Suppose organisation A contributes £15,000 to a combined operation, which acts in concert in some form of policy coalition. Then organisation B contributes £375,000 to that same campaign. Therefore, under the present rules, A and B have to record £390,000 as having been spent. However, vitally, organisation A, which has spent only £15,000, is recorded as having spent right up to the total of £390,000. That creates an extremely difficult situation for small organisations. Just by being caught up by some joint operation, they get clobbered because they might very well want to take on some different campaign activity that is nothing to do with that original campaign, and then find that they have already exceeded the limit. That is the nature of the present law, and that is the nature of the present problem that so many organisations have drawn to our attention.

The noble and right reverend Lord, Lord Harries, and his colleagues have a good amendment that would deal with this for small organisations making a contribution below the registration threshold and, of course, that is welcome. Our amendment goes further: it embodies the principle that any one group or any one campaign should be capped at the level of the national or constituency limit. We do this by engaging in the amendment with the phrase,

“common plan or other arrangement”,

which is already referred to in the 2000 Act. We are effectively saying that the money spent on that plan should be capped—it should not then be carried forward for any other campaign of a different nature—or that that money spent by a different organisation should be capped. If, in my example, organisation A was spending only £15,000, that would be the limit of the restraint on it because it clearly would not be contributing a huge sum. Just because organisation B has spent a considerable sum in pursuance of the common plan, it should not be effectively restricted by what has happened with one of their allies.

There is a way around these rules at present, which is to set up an umbrella organisation to accept donations from all the different organisations involved, but if they simply campaign together then they will be caught by the present rules. There is a defect in the 2000 PPERA rules and the Bill is our opportunity to deal with it, remove that uncertainty and assist a number of organisations that feel that this is a real constraint on what they are permitted to do. I should say briefly that, on these Benches, we strongly refute the case for Amendment 182A, tabled by the noble Baroness, Lady Royall of Blaisdon, which would seek to take away all the coalition rules. It would mean no constraint whatever on organisations, allowing them simply and artificially to multiply and then provide multiple spending limits. I am sorry that the noble Lord, Lord Bassam, is not here to explain exactly the rationale for those original 2000 PPERA rules, which were thought at the time to be both necessary and desirable. Unfortunately, they have proved to be, to a large extent, not very effective and, in some respects, a discouragement to small organisations being involved in perfectly proper campaigning operations.

The amendment of the noble and right reverend Lord, Lord Harries, goes a long way to dealing with the problem, but we think that our approach goes a little further and we hope that the Government will accept the direction in which it is going. I beg to move.

[Lord Harries of Pentregarth]

My Lords, I wish to speak to Amendment 170M. First of all, the charities and campaigning groups have indicated very strongly that what the present Bill puts forward on coalition working is totally unacceptable. All charities are encouraged by the Charity Commission and by their own trustees to work together in coalitions. We have seen many very successful examples of coalition working, but under the law as it is put forward in Part 2 of the Bill, the total amount of money spent by the coalition is attributed to each single member of the coalition. This must be, by any standard, totally unfair. We have racked our brains for the past six weeks and do not feel that we have come up with any solution to the fundamental problem. Therefore, in the first week after we come back, we will be calling a round table conference to which the Minister has agreed to come and various other people will be invited, to see whether, together, we can crack this fundamental problem of coalition working and how it can be fairly regulated. I am sure that the suggestion of the noble Lord, Lord Tyler, to which I put my name in a private capacity, will be very much on the table to be considered at that point.

However, as he mentioned, our Amendment 170M will go some way towards solving the problem for smaller groups. In that amendment, we mark the difference between a minor third party and a nominated third party. A minor third party is one that has not yet reached the registration threshold. If it is working in coalition with other parties, on the basis of my amendment it will be able to nominate another party, called the nominated third party. With the agreement of both the third party and the nominated third party, the money that the minor third party spends on that campaign will be attributed to the nominated third party as part of its overall expenditure and the minor third party will simply be able to indicate to the Electoral Commission that it is below the threshold and has, as it were, contributed this amount of money towards the nominated third party, which is very likely to be regulated. We believe that this is quite a neat way of ensuring that smaller parties—those which do not hit the registration threshold and certainly are very anxious to work in coalition —will not be brought within the scope of regulated expenditure. The Electoral Commission, in examining this amendment, remarked that it is “attractive in principle”, but wants to think about it further to see whether there are any unintended consequences.

The issue of coalition working is one of the key areas about which charities and campaigning groups are concerned. I will not go through any of the examples set out at the end of our report, but I would draw the attention of noble Lords to the Human Rights Consortium in Northern Ireland, which has been referred to at least once in this debate already, where something like 180 NGOs work together on a crucial issue. That gives some indication of why getting coalition working right is absolutely fundamental to the charity sector and, indeed, to the workings of our democracy.

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

Debate between Lord Tyler and Lord Bishop of Oxford

Monday 16th December 2013 Lords Chamber

[Lord Tyler (LD)]

My Lords, I am glad to follow the noble Lord, Lord Ramsbotham, because I very much agree with the last points that he has been making. I think there is wide agreement in this House that we have to do our job to make that process to which he has referred a reality. I am grateful, too, to the noble and right reverend Lord, Lord Harries of Pentregarth, and to all his colleagues. It was a formidable task that they took on; they did not stop at the first hurdle but kept going and have produced some extremely helpful and notable recommendations.

As is recorded in the register, I am a patron of many charities and I am sure that other noble Lords are too, but I have also had experience in the past as a full-time employee of Shelter, which is exactly the sort of charity and non-party organisation that we think is so important to civil life in our country. I am extremely proud of the work that such organisations have done and are doing, and I continue to support them. So I hope that your Lordships will understand that I come to these issues with very much the same background, interests and enthusiasm as members of the noble and right reverend Lord’s commission. I recognise that the work they have done is an extremely valuable contribution to the discussion of these issues.

Before I come to Amendments 160B and 160C, in the name of myself, my noble friends and others, I wish briefly to address the stand part debate which is also in this group. At Second Reading, I said:

“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. … It will be our responsibility in your Lordships’ House to get the balance right when we come to Committee”.—[Official Report, 22/10/13; cols. 902-3.]

That, surely, is our principal occupation today—to get that balance right, which is a crucial role that we have to undertake between now and Report in January.

After meeting a very large number of charities, community groups, third-party campaigning organisations and their representatives, it is clear to me that the amendment which I and my colleagues have put forward would go some way to meet that objective. However, I am the first to admit that I am no great expert when it comes to getting the amendment absolutely right. Many others in the House are greater experts in that regard. However, I endorse the concerns expressed by the noble and learned Lord, Lord Hardie, that we must be careful about the unintended consequences that could arise if the Bill were implemented in its present form. That is why the amendments that I have tabled have had broad support from third-party organisations, which accept that there is a problem in ensuring transparency in relation to those who are campaigning.

The Bill refers to expenditure that,

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

in respect of a party or candidate. There is wide acceptance that there should be greater transparency in relation to organisations that are determined to undertake that role. Indeed, everyone to whom I have spoken is absolutely clear that an extremely important part of the role and responsibilities of your Lordships’ House is to try to avoid confusion and to deal with a lack of clarity and the excessive constraints of the 2000 Act. Indeed, that sentiment was shared by the commission of the noble and right reverend Lord, Lord Harries, and he has endorsed Amendments 160B and 160C.

Amendments 160B and 160C deal with two discrete issues that have come up time and again in my discussions with a large number of organisations, and have been a feature of our debate this afternoon. They do not attempt to rewrite the basic definition, which the Electoral Commission has advised is not susceptible to constructive alteration. The benefit of that definition, as it stands, is that it has 13 years of practical experience attached to it and it is an objective test—namely, “What would a reasonable person think someone is doing?”, not “What did that person think they were doing when they did it?”. The latter would be much more subjective. We can never be sure of someone’s intentions but we can come to some conclusions about what a reasonable person would think those intentions were. The amendments seek to make these things clearer still.

Amendment 160B sets out the principle that the endorsement of a campaign by a candidate does not imply that the campaign concerned necessarily supports the candidate. The noble and learned Lord, Lord Hardie, referred to a similar situation. This is a very worrying misconception about the Bill and is much featured in the case studies reported to us: that is, the notion that the endorsement of a campaign by a candidate can be construed as that candidate receiving support from that campaign. The more one thinks about that, the more illogical it is, but it is clearly a perception and, as is so often the case, a perception can be even more influential than reality.

I recall regularly speaking of the good work done by community groups in my former constituency. If, by so doing, I could have won the implied support of those groups, it would have been wonderful. If everything that I supported had automatically reciprocated that support, I would have got an even bigger majority than I did, but, of course, that was simply not the case. The policy objectives of non-party organisations will often receive flattering praise from a candidate, but the feeling may not be mutual. That is precisely the grey area that the noble Earl, Lord Sandwich, referred to just now. It is not absolutely clear in the Bill that it is not reciprocal. We deserve to try to make sure for everybody’s benefit that the Bill is so improved that we know precisely where we are. That needs clarity. I hope that Members of your Lordships’ House will accept that our amendment is intended to do precisely that—to clarify the situation.

Amendment 160C gives an opportunity for the Minister to address some other matters that are ambiguous under the PPERA 2000 definition of non-party campaigning; that is, the extent to which the remotest praise for a candidate by a campaign can be said to be “promoting or procuring” his or her electoral success, or that of their party. In particular, we have all seen in the past—indeed, I think I prepared them when I was not a Member of either House—the score-cards of different parties’ positioning on different policies. These assess the policies of various parties against the policies of that particular organisation. Again, it may seem to us within the political system that it is perfectly logical that it does not automatically mean that you are seeking to procure or promote the election of a candidate, but we need clarity for everyone outside that that is the case. People are not normally involved in the political process. It is not absolutely clear at present whether this activity would or would not be regarded as promoting or procuring the electoral success of the party or candidate that comes out best in that score-card assessment. Again, a little more clarity would be extremely helpful. Even if we were forced back on to the 2000 Act, rather than producing this new Bill, we would be wanting to deal with that particular problem as a matter of urgency.

A remote suggestion that a candidate has done something right by, say, an organisation congratulating that candidate at a press conference for adopting a particular policy, is a grey area in precisely the terms that have already been referred to in this afternoon’s debate. It is important that we should make sure as soon as possible that this amendment could provide an opportunity to clarify the situation once and for all. The Electoral Commission advice is that a non-party organisation could not be accused retrospectively of “promoting or procuring the electoral success” of a candidate or party, just because that party or candidate had adopted some of the positions of the organisation. The House, however, is entitled to ask the Minister this afternoon to give that position his very clear attention so that we can be sure that we are clarifying the law as it stands and as it would seem to be intended in the Bill.

Can he also shed some light on the position after a candidate or party announces its support for a policy which is supported by a non-party organisation? My understanding is that, providing there is not a massive increase in the scale of the organisation’s campaigning clearly as a result of promoting the candidate who is supporting its view, then it would not reasonably be regarded as campaigning for that candidate simply by virtue of doing what it had been doing all along. Again, however, it is a grey area. I would welcome some greater clarity.

Some clarity on these issues is just what a lot of campaigners—be they charities or not—are asking us to undertake this afternoon. That is our principal task in your Lordships’ House. We generally do it very well. I hope that we are going to do it again today. These amendments are vital tests to see whether this Bill can be made both clearer and more workable than the present law. I hope, therefore, that they will be given the very active consideration of the Minister as well as other Members of the House.

[Lord Harries of Pentregarth]

My Lords, I, too, should declare my interests as listed in the register; in particular the fact that I am a trustee of the Woolf Institute. I would like also to thank the noble Lord, Lord Tyler, for working so assiduously, conscientiously and sincerely to try to move this terrible Bill on from where it started off in order to achieve something that might be workable.

I should like briefly to comment on the attempt by the noble and learned Lord, Lord Hardie, to achieve a better definition of “controlled expenditure”. The commission thought very hard about that definition but, in the end, we felt that in the time available we could not come up with anything better than what we have at the moment. We reckoned that the political reality was that we had to work with what we have under the heading, “Meaning of ‘controlled expenditure’”. However, our strong recommendation is that this is one of the areas that is to be considered by the review, which the Minister has assured us will take place after the 2015 election. Certainly if the definition of the noble and learned Lord, Lord Hardie, were to be accepted, it would immediately exempt all charities from the Bill because, of course, their primary purpose cannot be to promote or procure the election of a particular party.

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

Debate between Lord Tyler and Lord Bishop of Oxford

Tuesday 22nd October 2013 Lords Chamber

[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.