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

Lord Wallace of Tankerness Excerpts

Wednesday 18th December 2013 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, I hear the message. The current provisions of the Political Parties, Elections and Referendums Act 2000 do not prevent political parties benefiting from expenditure by third parties in a way that would enable the political parties to avoid party spending limits. Although measures exist to regulate political party spending, third-party spending and the notional campaign expenditure of political parties—that is, spending by third parties for or on behalf of a political party—those measures are not necessarily effective in ensuring that all spending for the benefit of a political party is properly captured. Our concern, which influences or informs this clause, is that that risks undermining trust in the controls on party spending.

Clause 29 therefore introduces a new measure that requires third parties that spend significant sums in a way that can reasonably be regarded as supporting a particular political party or its candidates to be specifically authorised by the relevant political party to campaign in that manner. I heard and will certainly reflect on what the noble and right reverend Lord, Lord Harries, of Pentregarth, said—that this might somehow be something that innocent people or groups can stumble into, but I rather think that the political reality on the ground is that if a particular group is, to all intents and purposes, supporting the Liberal Democrats—I am being neutral about this—it will not do so innocently or without any notion that that is what it is doing.

Under proposed new Section 94B(3), authorisation would be required only in instances where the third party wishes to incur expenditure that exceeds 10% of its spending limit for a part of the UK. This would be treated as “targeted controlled expenditure”, and the Bill defines it as more than 0.2% of the maximum campaign expenditure limit for political parties in that part of the United Kingdom. That limit would be £31,980 in England, £3,540 in Scotland, £2,400 in Wales and £1,080 in Northern Ireland. If a political party does not want the third party to spend more than 10% of its spending limit in support of it, or for that expenditure to count towards its limit, it can simply withhold authorisation. A third party will commit an offence if it either exceeds the targeted expenditure limit without authorisation or exceeds an authorised cap set by a political party. In other words, if such a group comes to the Liberal Democrats, in the highly unlikely event that the Liberal Democrat treasurer says, “Sorry, we are not going to accept your offer of going beyond the 10% limit and we are not giving you authorisation”, it would be an offence if the group then spent money in obvious support of the Liberal Democrats beyond the 10%.

The intention of this clause is to bring a greater degree of transparency where third parties campaign to support a particular political party or its candidates. Requiring expenditure incurred as part of that campaigning to count towards the spending limits of both the third party and the political party, and for this information then to be disclosed to the public, will prevent political parties evading their spending limits by relying on co-ordinated support from campaigning groups. Clause 29 will not prevent third parties campaigning up to a significant limit without needing any kind of authorisation from a political party. Nor will it curtail third-party expenditure that cannot reasonably be regarded as intended to benefit a particular party—for example, because that expenditure supports multiple parties or candidates who support the third party’s aims.

This is an important provision to try to prevent the spending limits on political parties being circumscribed or undermined by third parties campaigning on their behalf. It does so by requiring authorisation at 10% of the third party’s spending limit. I take the point that what I believe is a relatively simple and important principle or objective may not have been expressed in the most felicitous terms. I would normally share my noble friend Lord Cormack’s desire to see legislation in much plainer English. I confess that having negotiated a coalition agreement with the Labour Party in the Scottish Parliament in 2003, including a commitment to making progress towards drafting legislation in plain English, I fear that we failed to honour that commitment. That suggests that it is easier said than done. Some challenges are bigger than others.

I do not know whether delivering the objective can be done in much simpler language. In the previous clause, much of the apparent complexities related to an interrelationship between different relevant periods because of different elections. However, judging by the mood of the House, we at least ought to look at this clause to see if something can be done in that regard. However, the underlying objective, to stop the subversion of the limits on party political funding, is a proper objective.

Clause 29 agreed.

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[Baroness Hayter of Kentish Town]

My Lords, the last example given by the noble Earl, Lord Sandwich, is a really powerful one and it adds to the criticisms, which I endorse, of the catch-all provisions that have been added to the existing rules, which worked in the past but have become unworkable because of the increased range of activities, the addition of staff, travel and other costs, the reduction of thresholds, and the cut in the spending cap. This is what makes what was a quite innocuous concept now very difficult.

We endorse the criticisms but go further and suggest in Amendment 182A, which is in my name and that of my noble friend Lady Royall, that the combined effect of all of that is so serious and could so jeopardise joint working that it is time to review whether such an anti-avoidance dollop of restrictions, red tape and responsibility for another organisation’s spending is actually worth the candle.

Of course, had we had pre-legislative scrutiny of the Bill and known about this in advance, we might have ironed it out before, but we did not, so we are left with a situation in which restrictions on coalition spending—or, at least, subjecting it to joint limits and reporting—seem aimed at anti-avoidance only in the belief that 10 groups will get together and campaign and they will all spend £100 less than the limit. Again, we have had no evidence of this. It seems to be a solution in search of a problem.

The Royal Society for the Protection of Birds, which supports our amendment, has pointed to the increased significance of the rules because they will now apply to such a wide range of activities, and with new constituency limits. It thinks that this will threaten legitimate coalition campaigning, especially locally. For example, the RSPB works locally with other groups on infrastructure projects that affect the natural environment, such as an M4 relief road, when public reports or press events may be used. This may well be caught because one party may be in favour of a road and another party against it. Even if that is not the purpose of its work, the RSPB risks being caught if its particular objective chimes with—or is at variance with—one party, even though the RSPB’s objectives are based on the interests of birds rather than politics. It is particularly worried about how its spending would count against every member of the coalition’s spend and each member’s £9,750 limit would in a sense be double- or treble-counted if each group had to declare it as if it was its own. As the RSPB says, the combined effect of all the different rules is likely to limit what it can do.

The Board of Deputies of British Jews, also looking at the confusion surrounding coalition spending, was worried that simply having its logo on something, with therefore a bit of cost involved, would mean that that would have to be apportioned to a coalition, which could present problems and reduce its ability to support a campaign. The Libel Reform Campaign, which is made up of Sense About Science, English PEN and the Index on Censorship, believes that if it was pooling all those expenditures over a year, all those three organisations would hit their limit even if the combined limit was still below what is permissible.

NAVCA highlights that £5,000 is a lot of money for one small charity alone to spend. However, as my noble friend Lady Pitkeathley said, working in partnership can be much more effective for charities and what they want to achieve for the groups they support. Yet because all the funding is put together, the thresholds create a burden. This could discourage small charities from working in partnership to gain a voice, because they would fear everything that went with that.

It has been mentioned that the Electoral Commission itself, which traditionally saw the old coalition rules as a good anti-avoidance tool, now acknowledges that there are strong concerns about the impact, particularly on small local campaigns. If a local campaigner which is spending only a few pounds enters into a coalition with another which is spending more than the registration threshold, it may then be required to register. One campaigning group would have to take the other party’s spend as part of its own, and then comply with all the rules.

Of course, the amendment proposed by the noble and right reverend Lord, Lord Harries, might appear attractive. It allows a bigger organisation to take responsibility for some of the spending of a smaller organisation. The problem is that a smaller organisation may have decided to spend only £1,000 on something over a year, but then something happens—it gets another member of staff, or the car breaks down and it has to hire a bus—and its expenditure suddenly goes up over that year. It will be the bigger organisation, the responsible body, which will suddenly have to answer for a new range of expenditure that has not been agreed in advance. I am afraid that for small voluntary organisations that is often how spending takes place. They do not spend with a budget in advance, as the Government do. Spending is often as and when.

Problems remain, despite the attempts to answer this. As has been said, the Electoral Commission itself has failed to come up with a response, only promising us its ideas by Report. This highlights the fact that not only was this not subject to pre-legislative scrutiny but the Government did not even consult the Electoral Commission before they brought in the Bill. It is a little worrying that neither the Government nor the Electoral Commission have found a way to answer these very serious questions. For that reason, we suggest removing the old requirements on all participants to be responsible for the actions of the other. We ask the Government to find a better way of tackling any attempts by various bodies to circumvent the very proper objectives of PPERA.

[Lord Wallace of Tankerness]

My Lords, from almost every meeting I took part in with charities or representatives of NGOs, I was certainly aware that the issue of what we described as coalition or co-ordinated planning was of considerable importance to them. That said, it is worth reflecting that the Bill does not actually make any changes, apart from the technical changes to take into account the other activities. The basic architecture on expenditure by organisations going towards a coalition plan was set down in the 2000 Act. I am not quite sure whether there was pre-legislative scrutiny before that particular architecture fell into place. However, it is not the case that the law was put forward in Part 2, as was said by the noble and right reverend Lord, Lord Harries. That law is already there in PPERA.

What has happened has perhaps been fortuitous. The Bill has brought activity and greater focus, which have targeted minds on what is actually there. I accept that there is more activity now, as I am sure would be said by the noble Baroness, Lady Hayter. Yet in fact, as the law stands at the moment, if 10 groups each contribute £1,000 to the activities or to the election materials covered under the present Act, they would each be required to register. This is therefore an important issue. The noble Earl, Lord Sandwich, made this point about the concern of smaller organisations in a number of his contributions. I say to the noble Lord, Lord Ramsbotham, that we should remember to put this in the context of what the controlled expenditure is. If we are talking about the valuable and important work that is done in our prisons in terms of rehabilitation, it does not readily strike me how that would be the kind of expenditure envisaged, albeit that the groups concerned might be engaged with other bodies which fall within the ambit of the Bill and of what would lead to controlled expenditure. However, it is important that we recognise that this issue has now been identified, and I think that we all agree that we should seek to address it.

The rules on coalitions are necessary. In its evidence to the Commission on Civil Society, the Electoral Commission said:

“In our view, rules that limit what different campaigners can spend on co-ordinated campaigning are a vital element of the controls on election spending. Without them, individuals or organisations seeking to spend more than the limits on campaigning at elections could do so by setting up multiple organisations working together, with each organisation able to spend the full amount”.

As I have said, the existing provisions have been in place for both the 2005 and 2010 general elections. They seemed to work well and they remain unchanged by the Bill.

There has been some confusion about the operation of the rules, so perhaps I should take this opportunity to clarify them. Section 94(6) of PPERA stipulates that where two or more third parties work together as a group or coalition in pursuance of a common plan, the whole of the expenditure they incur as part of that coalition must count against each third party’s individual spending limit. As my noble friend Lady Tyler pointed out, that is a key anti-avoidance provision. If total spending by a group of third parties acting as part of a common plan was not counted in full against each individual third party’s limits, it would allow third parties to form many coalitions on single issues in order to evade their spending limits.

However, the amendment put forward by my noble friend Lord Tyler perhaps does not have the effect that, I am sure from what he said in moving it, he intended, because it would appear simply to reinforce what is already provided for in PPERA. I am sure that my noble friend seeks a different outcome, which is perhaps the cessation of third parties accounting for aggregated coalition expenditure. Nevertheless, his amendment has raised an issue which I see as current and, as will be clear when I come to respond to the specific amendment proposed by the noble and right reverend Lord, Lord Harries of Pentregarth, the Government want to look carefully at what more can be done to deal with these concerns. My noble friend mentioned a round-table conference—when we broke for lunch, I think that dates and times were being arranged for that.

The amendment proposed by the noble and right reverend Lord, Lord Harries of Pentregarth, would create a category of what he described as “minor” third parties which are exempted from having to account for any coalition expenditure provided their individual contribution is below the registration threshold. The third party must not have incurred expenditure in any other circumstances, and a “nominated” third party must be willing to absorb the “minor” third party’s spend and report it as its own to the Electoral Commission.

I accept that that is a constructive approach to addressing the problem that has been identified. Already, if a coalition campaign is organised by a lead third-party organisation which alone incurs, or decides when to authorise, regulated spending for the campaign, only the lead organisation is required to register with the Electoral Commission. The lead campaigner may receive contributions or donations from other organisations towards the campaign. These will be considered as donations. Where other organisations provide services or materials to the lead campaigner, these will be regarded as both in-kind donations and “notional” spending on behalf of the lead organisation. I reiterate: it is only where there is no lead organisation, and several third parties co-ordinate their campaigning while making their own decisions on when to incur regulated expenditure, that they will be covered by the rules on coalition campaigning.

I hope that in indicating what the present position is on when donations are made I have gone some way to reassuring the noble and right reverend Lord, but we recognise the concerns of small organisations which may wish to join a larger coalition to campaign on an issue. We will continue to look carefully at what more can be done. I hope that, when we meet, the benefit of a break might have enabled us to find a way to address an issue which, as I said at the outset, already exists even under the law as it stands.

In the same vein, the noble Baroness, Lady Mallalieu, specifically asked what the position would be with regard to charities. If charities were exempted, they would not incur the controlled expenditure so it would not be counted towards spending on a common plan. As I indicated in my response to the amendment moved on Monday by my noble friend Lord Phillips of Sudbury, though, while there is certainly an issue there to be addressed and we want to consider it, the Government’s position has not been to exempt charities. If we were to go down that path, the kind of issue that she has raised is one of those that would have to be considered.

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[Baroness Royall of Blaisdon (Lab)]

My Lords, I am grateful to the noble and learned Lord, Lord Hardie, for his amendments and I welcome the amendment tabled by the noble Lord, Lord Hodgson, who just pointed out the ghastly complexity and challenges that will be faced by charities as a result of the Bill. It is eminently sensible to have an integrated set of guidance, and I very much hope that the Minister will accept this amendment so that it will be clear that this House and the Government want there to be a requirement for an integrated set of guidance.

On Monday the Government made a great deal of how the guidance that would be issued after the Bill becomes law would clear up many of the apparent difficulties contained within it. The Minister—I do not know if it was the noble and learned Lord—said:

“The Government believe that it is essential that campaigners have clarity on how they are to comply with the third-party regulatory regime. The Electoral Commission has a power to produce guidance for third parties campaigning in elections, and indeed has exercised that power in previous elections”.—[Official Report, 16/12/13; col. 1040.]

Indeed, the Minister placed such a heavy emphasis on the guidance that would be given that the noble and right reverend Lord, Lord Harries of Pentregarth, was moved to say while speaking to his amendments:

“However, perhaps I may anticipate, rather too boldly, the response that the Government are likely to make: that these kinds of issues can be dealt with in guidance”.—[Official Report, 16/12/13; col. 1057.]

Charities and NGOs need to understand how the Bill will affect them as the Bill passes through the House. To place the amount of weight that the Government place on guidance is effectively another way of avoiding proper consultation.

The first amendment from the noble and learned Lord, Lord Hardie, would ensure that the Electoral Commission is able to give charities and NGOs guidance in good time before they are subject to the regulated period, and would reduce the spending limits in line with the reduced regulated period that would result. The second would ensure that the Electoral Commission is resourced to apply these changes. As the Electoral Commission has said itself,

“The current PPERA rules on non-party campaigning are relatively narrow in scope … and the definition of what is covered is relatively clear, so we are able to produce guidance that builds on the legislation”.

However, it goes on to say with regards to the Bill before us:

“This will be particularly challenging for campaigners because of the need to apply the definition of ‘election purposes’, which is new and untested in the context of non-party campaigning. In the limited time available we will aim to produce guidance to assist with this, and will offer advice on particular queries where possible, but our experience strongly suggests that it will not be straightforward to apply the new rules to many specific types of activities”.

I know that the Electoral Commission will do all in its power to produce the guidance, but it will need time because of the complexities.

I say to the Minister that of course the best way of ensuring that the Electoral Commission is able to issue clear guidance in time is to draft clear law—to draft a very clear Bill. These sensible amendments would therefore assist in that. However, notwithstanding the desired clarity, this is a complex Bill, and time will be needed to ensure the best possible guidance so that the voluntary and charitable sectors understand their new obligations and do not unintentionally fall foul of the law. Like the noble and learned Lord, Lord Hardie, I think that small charities and voluntary organisations that do not employ lawyers as a matter of course could well find themselves unintentionally in breach of the law. As in so many things we do in this House, the lawyers will gain the most, and we cannot allow that to happen. I therefore very much hope that the Minister will signal that the Government will accept these or similar amendments in due course.

[Lord Wallace of Tankerness]

My Lords, Amendment 170J, tabled by the noble and learned Lord, Lord Hardie, would require the Electoral Commission to produce guidance for third parties, so that they are clear what actions they must take to comply with the provisions of the Bill. The Bill, should it have received Royal Assent by the time that guidance is produced, would not be permitted to take effect for a further three months. The noble and learned Lord further proposes that the Electoral Commission be given the extra resources it might need to produce this guidance and to comply with its other obligations under this Bill.

My noble friend Lord Hodgson has tabled Amendment 175, which, similarly, would require the Electoral Commission to produce guidance, but jointly with the Charity Commission. This would be designed to address specifically the impact upon charities.

The debate surrounding this Bill has made clear just what a lack of awareness there was, not only among third parties but among the public at large, of the existing provisions of the Political Parties, Elections and Referendums Act 2000—PPERA. I have certainly heard from more than one of the organisations that I have spoken to that they had not been aware that they might just have been edging towards a registration threshold back in 2010. They had not appreciated that fact. This lack of awareness has highlighted the crucial importance of comprehensive and clear guidance for all third parties, not just charities, so that they understand whether they could be affected by the provisions of this Bill as it amends PPERA.

As I said in at least one of the debates on Monday, when the original Committee on Standards in Public Life was considering the architecture and proposing the idea of an Electoral Commission it accepted that in some ways we could never achieve an absolute definition, and that, as the noble and learned Lord, Lord Hardie, predicted, some cases may have to go to the courts. However, much of that uncertainty could be avoided through guidance. That was one of the functions and roles that the Committee on Standards in Public Life saw for the Electoral Commission that it proposed should be set up.

The Electoral Commission already has the power, under PPERA, to produce guidance for third parties. As I said on Monday,

“The Electoral Commission has a power to produce guidance for third parties campaigning in elections, and indeed has exercised that power in previous elections. Campaigners require clear guidance to support them and help them understand the revised regime, and I am reassured that the commission recognises this too”.—[Official Report, 16/12/13; col. 1040.]

I think that I went on to say that the sooner the guidance can be produced in draft, the better.

Although there is existing guidance on third parties and the PPERA rules, noble Lords will be aware that the commission has already indicated that it will indeed produce fresh and enhanced guidance in time for the 2015 UK general election. It did so in its briefing to members in the other place, as recently as 29 August. Both the Electoral Commission and the Charity Commission will be aware of the demand from campaigners for clear and detailed guidance of this sort. I have no doubt that today’s debate, and the amendments tabled by the noble and learned Lord, Lord Hardie, and by my noble friend will have reinforced that message.

As in previous elections, the Electoral Commission and the Charity Commission will work closely together to develop guidance that will assist campaigners and charities to have a clear understanding of how the provisions in Part 2 relate to them. Again, the Electoral Commission made this clear in its briefing of 4 November. The Government stand ready to support this work.

I hope that the fact that the Electoral Commission and the Charity Commission have indicated an awareness of the need for clear and comprehensive guidance is of some reassurance to the Committee. However, the Government are also keen to reassure campaigners and charities that the provisions of the Bill and the PPERA rules will, and should, be clearly communicated to them. It is our view that the Electoral Commission should produce guidance in consultation with the Charity Commission, and provide specific consideration of charities. I am not sure whether a particular statutory provision is needed, but the benefit of that is very evident.

The other point made by the noble and learned Lord, Lord Hardie, in his amendment, which was also spoken to and supported by the noble Baroness, Lady Royall, was about the funding of the Electoral Commission. It is important to be aware—

[Lord Hodgson of Astley Abbotts]

Before my noble and learned friend moves on, may I ask him a question? When he was speaking so encouragingly about the joint guidance, I was not quite clear whether, in his mind’s eye—I know that he will not wish to commit himself yet—this will be one document produced by the two commissions? I ask this because once the two bodies are able to produce two documents they will do just that and leave the charities to connect them. They should be doing the connecting. They are the regulators, and they really need to do that. Is that how my noble and learned friend sees it?

[Lord Wallace of Tankerness]

I am not sure that that is entirely how I see it; my point was that whatever is produced should be produced in collaboration. I certainly am wary of saying anything that might be seen as a direction to two independent bodies, which must act independently of Government. That is why I hesitate, as I am sure my noble friend will understand. Ministerial colleagues have had meetings with the Electoral Commission—I have not done so personally—and, I think I am right in saying, with the Charity Commission, and I am sure that the message conveyed by noble Lords here will also be conveyed by Ministers.

[Baroness Royall of Blaisdon]

My Lords, as the noble and learned Lord says, he cannot give directions. However, if the measure were included in the Bill, both the Electoral Commission and the Charity Commission would be obliged to produce joint guidance.

[Lord Wallace of Tankerness]

Obviously, if Parliament wishes that to be the case and the measure is included in the Bill, we would have a different proposition, and we would want to reflect whether that was one which the Government would wish to support. Notwithstanding whether or not the measure is in the Bill, the respective commissions will no doubt hear the concerns that have been expressed and the legitimate expectation as regards their response in respect of these matters.

As I said, the noble and learned Lord, Lord Hardie, and the noble Baroness, Lady Royall, referred to resources. It is important to recognise the position of the Electoral Commission. It is an independent body established by Parliament and is overseen by the Speaker’s Committee on the Electoral Commission, which oversees the Electoral Commission’s annual estimates. I checked during the debate and I am not aware of it having asked for more resources in respect of this legislation. However, if the commission requires extra resources to perform this or any other duties, including producing this guidance, it would be for the Speaker’s Committee to come to a view on the resourcing of the Electoral Commission in the light of its roles and responsibilities. I think that there is agreement across the Chamber on the importance of proper guidance and clarity. I hope that this debate has been helpful in communicating that message to those who have responsibility for that. I therefore invite the noble and learned Lord to withdraw his amendment.

[Lord Hardie]

I have certainly found the debate helpful. I thank the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Royall of Blaisdon, for their contributions. I should say to the noble Baroness that, as a lawyer who has benefited in the past from gaps in legislation, it may seem a bit churlish of me to deprive the modern generation of that. However, I agree with her that we in this House should do what we can to avoid gaps arising of which people can take advantage because of the uncertainty that causes for others. I thank the Minister for his response. I note that the Electoral Commission will produce guidance. I had not appreciated the niceties about funding, but I am grateful to him for those comments. In those circumstances, I beg leave to withdraw the amendment.

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[Lord Wallace of Tankerness]

My Lords, the noble and right reverend Lord, Lord Harries of Pentregarth, has proposed an amendment that would reduce the length of the regulated period for third parties from 365 days to six months. The noble Lord, Lord Ramsbotham, has tabled a similar amendment, reducing the regulated period to four months under the banner of “keep it simple”, although as my noble friend Lord Tyler has illustrated, it is perhaps not quite as simple as it might appear on the surface.

I am aware from the engagement in meetings that this is an issue that has come up on a number of occasions and not least because, for the first time, some bodies that might have been getting pretty close to being regulated in 2010 but did not realise it have now realised that there is something that they will have to address. I will explain by way of background the different regulated periods that operate for different elections. The regulated period for UK general elections is 365 days and for devolved Administration elections and European parliamentary elections it is four months. The reason why we have put these in is that we believe that it is not unreasonable that third parties and political parties should adhere to the same regulated period for an election. This is because the campaigns relate to the same election. I am sure, if one thinks about it for a moment, that it would be somewhat unusual and unfair if third parties were allowed to incur unlimited amounts of expenditure campaigning for or against a party or candidates in a period when the political parties themselves would be faced with a limit on their spending. That is the principle that underlies why we wish to keep the periods in tandem.

As we have discussed earlier, particularly on whether the clause would stand part—when we talked about expenditure by a third party, which is ostensibly and is indeed intended to support a registered political party—there could be a scenario where a short third-party regulated period really detracted from the rules on the political parties, as political parties could use these third parties as expenditure vehicles for a considerable period of either six months or eight months. I do not believe that this is the sort of situation that we want to end up with. That said, believing that it would be possible to have the relevant guidance in time before the regulated period starts for the 2015 election, I recognise that there are issues; my noble friend Lord Deben highlighted some of them that relate to the first election under this. Of course there will be a review, which we will come on to but the Government have already indicated that there will be a review post-2015. I hear the points made that there are still concerns with regard to the immediate prospect facing a number of organisations. The noble Baroness, Lady Hayter, made reference to that too.

I can say this in a spirit of consideration but not promise, because the principle involved here is to keep the times so that they march together. Not doing so could undermine an important aspect of the restriction on expenditure by political parties. That is why it is important that we do not disregard that principle and I invite the noble and right reverend Lord, Lord Harries, to withdraw his amendment.

[The Earl of Sandwich]

My Lords, can the noble and learned Lord explain why he always goes back to parity with political parties? We are not talking about political parties; we are very different in kind.

[Lord Wallace of Tankerness]

My Lords, I am happy to explain that. The very nature of the expenditure that will fall to be covered by Part 2 will be expenditure that is very much geared towards an election, the same election in which the political parties will be fighting. It would seem rather odd if the political parties themselves are restricted in what they can spend over a period of one year. If, for example, we were to accept the amendment spoken to by the noble Lord, Lord Ramsbotham, for eight months of that year other third-party bodies, some of whom would be endorsing quite unashamedly the policies and perhaps the candidates of one of the political parties, would be able to spend freely without any restriction at all while the political parties themselves are campaigning with restrictions. That is why I make the comparison because it would create a sense of unfairness and imbalance if those who are actually fighting an election, those whose heads are on the block on polling day, as it were, were under restrictions but third parties did not have any such restrictions for a substantial part of that time.

[Lord Harries of Pentregarth]

My Lords, I thank the noble Lord, Lord Deben, for his support in principle for reducing the regulation period. Perhaps I may remind the Minister that the Electoral Commission, at least for the 2015 election, is supportive of a six-month period. It will be reviewed after 2015, but there is a great deal to be said, at least for the 2015 election, in support of testing the six-month period. With that, I beg leave to withdraw the amendment.

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[Baroness Hayter of Kentish Town]

On this side we very much support getting rid of red tape for small organisations. I think that it is tomorrow that the Joint Committee on the Government’s draft Deregulation Bill will produce its report, so it will be slightly ironic if there is that on the one hand and, on the other, we are regulating these small groups. I look forward to what may be the time when the Minister gives us a “yes” today.

[Lord Wallace of Tankerness]

My Lords, Amendment 170N would insert a new clause that would remove the requirement for recognised third parties to provide a spending return after the election if they had not incurred controlled expenditure above the registration threshold. Instead, a recognised third party would be required to submit a declaration that they had not spent in excess of the registration threshold.

Amendment 173, spoken to by my noble friend Lord Hodgson, would amend Clause 32 so that a recognised third party would not have to submit a nil report where it had not received a reportable or substantial donation. Amendment 174 would amend Clause 32 so that a recognised third party would be able to appoint a responsible person who had been a responsible person for another recognised third party.

I will give some background before addressing specific amendments. To improve transparency and to ensure that people can see who is funding a third party before the poll takes place, third parties will be required to report any large donations in advance of the poll. This will align the reporting requirements of third parties more closely with those of political parties, and will take two forms.

First, recognised third parties will be required to provide quarterly reports of donations for each reporting period that falls within the regulated period for a UK parliamentary general election. Secondly, between the dissolution of Parliament and polling day, recognised third parties will be required to provide weekly reports of any large donations.

I am not sure if I heard correctly whether the noble and right reverend Lord, Lord Harries, suggested that the quarterly and weekly reports also applied to spending. To clarify, the quarterly and weekly reports prior to the election apply only to donations—of more than £7,500—and the spending return will continue to be a requirement after the election.

Both the quarterly and weekly donation reports would be submitted to the Electoral Commission, which would publish the information. The quarterly reports must be accompanied by a signed declaration from the responsible person of the recognised third party, stating that all reportable donations accepted were from permissible donors. The Bill introduces measures that are necessary to achieve this increased transparency. The Bill proposes that third parties provide information about large donations in advance of the election, in quarterly and weekly donation reports.

At present, recognised third parties have to provide details of their campaign income and expenditure to the Electoral Commission after a UK parliamentary general election, and after the poll for certain other elections. To improve transparency by providing a clearer understanding of the finance of those involved in elections and to align the reporting requirements of third parties more closely with those of political parties, a statement of accounts would form part of the return third parties already provide to the Electoral Commission.

To ensure that this additional obligation is proportionate, individuals are excluded from this requirement. The Government believe that not to exclude individuals would result in an unwarranted intrusion into their personal financial matters, although they will still be required to provide details of their campaign income and expenditure, as is currently the case. Third parties, such as companies, charities and trade unions, which are required to prepare a statement of accounts under another legislative framework would be able to submit these accounts as part of their return to the Electoral Commission. I hope that this is an example of proportionality.

Turning to the amendments, I hope that noble Lords support the principle of providing information on reportable donations during the election period. However, the Government acknowledge that the correct balance has to be struck between increased transparency and overly burdensome requirements. With this in mind, the suggestions of the Electoral Commission in relation to nil reporting have provided a very useful starting point. The Government want to consider these matters very carefully and to revisit them on Report, to ensure that adequate and proportionate reporting requirements are included in the Bill.

Amendment 174, spoken to by my noble friend Lord Hodgson, concerns the role of the responsible person. When a recognised third party seeks registration with the Electoral Commission, they must nominate a responsible person who ensures compliance with the provisions of the Political Parties, Elections and Referendums Act 2000.

It is for the recognised third party or coalition to nominate a responsible person who they feel is best placed to ensure compliance with legislation. That could be a person who is already a responsible person for another third party. There are therefore no restrictions placed on who the recognised third party can nominate as a responsible person, except where an individual registers as a third party, where they will automatically become the responsible person.

In relation to Amendment 170N, the Electoral Commission made a similar suggestion in its June 2013 regulatory review. The Government see merit in the suggestion, which underpins our aim that smaller bodies should not be subject to overly burdensome reporting requirements. As a result, the Government will want to consider this issue carefully and revisit it on Report.

We have heard the—understandable—strictures from my noble friend Lord Deben. In that spirit, I ask the noble and right reverend Lord, Lord Harries, to withdraw his amendment.

[Lord Harries of Pentregarth]

I thank the Minister for his response. It is probably the most positive response we have had this afternoon—it must have been the intervention of the noble Lord, Lord Deben, which tipped the balance. He has been useful on one or two things on that side in recent years.

I accept the Minister’s assurance that the Government will do all they can to reduce the regulatory burden on both donations and expenditure. With that, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Royall of Blaisdon]

My Lords, that is an interesting idea in an interesting debate. I certainly do not defend the present system. I agree with all of the noble Lords, including my noble friend Lord Campbell-Savours, that funding causes a disconnect with the people of our country, and that we have got to do something about it. We have to lance the boil, or whatever metaphor one wants to use. People have made various suggestions, including about the cap and about other things such as those that the noble Lord, Lord Tyler, talked about. It is absolutely clear that we have to find a solution. I am sure that all of us who are engaged in politics, and all of us who are here would agree, that politics is a “noble activity”, as the noble Lord said. It is a fundamental part of our democracy, and we are here to protect our democracy and to be vibrant activists.

However, it is my party’s strong view that whilst this is an interesting idea, it should not be looked at in isolation, and that what we have to do is to knock each other’s heads together, and find a solution in the round. My party—our party—wants to resume the all-party talks. It can be done; we have got to find a way through. It is not that I am being complacent. I can see that the noble Lord, Lord Marland is getting frustrated by what I am saying, but I can assure him that I spend a huge amount of my time raising funds for my party. I know how difficult it is, and I know all the problems with the media and everything else. We have to find a solution. It may well be that this is part of the solution, but it cannot be dealt with in isolation. But I am very grateful to my noble friend for raising this very interesting issue.

[Lord Wallace of Tankerness]

I, too, would like to thank the noble Lord, Lord Campbell-Savours, for raising this. Having spent much of the earlier part of the Committee discussing non-party organisations and the limits on party expenditure, I think that it is interesting that we now move on to party revenue and how it is raised. Indeed, there is much in this debate in which I find myself in considerable sympathy, as there is a disconnect and there is a problem.

As my noble friends Lord Deben and Lord Marland and the noble Baroness, Lady Royall, reminded us, politics is a noble calling. It is not always seen like that, and we understand sometimes why it is not seen like that. But much of the work that is done in this House and in the other place, and in the various devolved Administrations and council chambers up and down the land, requires people to make a commitment and very often a sacrifice in order to make the system work. It does not work perfectly, we know that, and it will not always produce the policies that people like, but nevertheless, without the people prepared to do that work, the system would completely break down and democracy would be seriously imperilled. Democracy does not come cheap, and if people are going to have proper choices at election times it is important that funding and resources are there for particular programmes to be put before voters, who should have an opportunity to respond.

--- Later in debate ---

[Lord Campbell-Savours]

To illustrate the point, I was making a distinction between a monthly contribution and an annual contribution.

[Lord Wallace of Tankerness]

I am grateful to the noble Lord for explaining that.

It will not come as any surprise that the Government do not feel able to support the amendment. There have been discussions among the three main parties, which have been guided by the principle of consensus. There has been not total consensus but substantial consensus in your Lordships’ House this evening—a consensus that was not found in the discussions that have taken place. The noble Lord, Lord Campbell-Savours, said that there had been seven such discussions. In a Written Ministerial Statement on 4 July, my right honourable friend the Deputy Prime Minister indicated that the talks had not produced results and that it was,

“clear that reforms cannot go forward in this Parliament”.—[Official Report, Commons; 4/7/13; col. 62WS.]

From what has been said, it has been a source of considerable disappointment that agreement could not be reached. I do not necessarily think that the Bill is the best place in which to start to do these things without that wider consensus as to what other things might be needed. However, it is important that we have had this debate, which has shown that there can be consensus across the parties.

I therefore say to my noble friend Lord Cormack that, while I am sympathetic, I regret that I cannot be encouraging. I therefore ask the noble Lord, Lord Campbell-Savours, to withdraw his amendment.

--- Later in debate ---

[Lord Cormack]

The fact is that post-legislative scrutiny—which I am a great advocate of—is no substitute for a sunset clause, which brings the Bill to a proper stop. We do not have the power to do that.

[Lord Wallace of Tankerness]

My Lords, I will very briefly say that of course we need to be aware of the effects of any legislation and that often these effects do not become clear until after the legislation is in force. As far as Part 2 is concerned, the Electoral Commission already has, under PPERA, the statutory function of reporting on the conduct of elections. That report will include how third-party campaigning is carried out.

I reassure your Lordships that we agree that the impact of the provisions of Part 6 of PPERA, which would include, if it passes, the measures in Part 2 of this Bill, should be subject to a review after the 2015 UK parliamentary general election. The passage of the Bill has shown that the provisions of PPERA are not necessarily as widely known as they ought to be, and even less well understood. The 2015 election will provide an opportunity to review the effectiveness of the provisions of Part 6 of PPERA as enhanced by Part 2 of this Bill.

The Government are still considering the precise details of the review but we commit to laying the review before Parliament, and a government amendment to that effect will be tabled on Report. Such a review was recommended by the Commission on Civil Society and Democratic Engagement, led by the noble and right reverend Lord, Lord Harries, and we are grateful to him for that recommendation. When the review is carried out, it is only right that Parliament should have the opportunity to consider how to respond to its findings.

The reason I hesitate in agreeing to the sunset clause is that Amendment 181C calls for the report to be debated “before 31 May 2016”, whereas Amendment 181A would have the effect that Part 2 would expire “on 31 May 2016”. It is important that, if we have a review, it is a proper one. If there are things that need to be done, there should be an ample opportunity for Parliament to take steps and consider any amendments that are required. That would not necessarily give a proper opportunity for a full review and for Parliament to take any necessary legislative steps. The spirit is that there should be a review. It should be brought to Parliament. It is clear to all parties, regardless of who is in government after 2015, that the will to have a review and learn the lessons that any review might teach us is there. In these circumstances I hope that my noble friend Lord Hodgson, who set the ball rolling in this, will be prepared to withdraw his amendment.

I hope this will be the last time that I will be on my feet in this Committee stage. I thank noble Lords in all parts of the Chamber for their contributions. It is important that we have had them. I also thank noble Lords for the good nature in which, debating pretty complex matters, our deliberations have proceeded. The Government have been listening and will reflect over the Recess on the matters that have been raised in your Lordships’ House.

[Lord Hodgson of Astley Abbotts]

My Lords, for the second or maybe the third time this afternoon I can say how grateful I am to my noble and learned friend for his very positive response. It has been a long afternoon and I take this opportunity to thank him for the courteous way in which he has dealt with the extensive probing to which he has been subjected. In withdrawing my amendment I hope that it is not out of order if I wish him and all members of the Committee a very happy Christmas.

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

Lord Wallace of Tankerness Excerpts

Monday 16th December 2013 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, I thank my noble friend Lord Phillips of Sudbury for introducing this debate, which has been very interesting. Different views have been expressed. The noble Lord, Lord Low, said that charities do not speak with one voice on this matter, and that confirms my experience from having engaged with charities, admittedly not as extensively as my noble friend Lord Wallace of Saltaire. I have heard different views expressed about whether there should be an exemption for charities. Therefore, it is important that the arguments that have been put forward on both sides are given proper examination. My noble friend’s amendment would amend Clause 26 so that charities were excluded from the regulatory regime governing controlled expenditure for third parties. At present, under charity law, charities are organisations which must be established for charitable purposes only and which are for the public benefit. An organisation will not be charitable if—as my noble friend pointed out—it engages in partisan political activity.

Campaigning and political activity can be legitimate and valuable activities for charities to undertake. However, they must be undertaken by a charity only in the context of supporting the delivery of its charitable purposes. As we have heard, the Charity Commission produces comprehensive guidance—CC9—for charities on campaigning and political activity. However, the Charity Commission also acknowledges that there may be circumstances in which charities may legitimately operate within the regulatory regime established by PPERA 2000, even if their campaigns remain within the rules on party political activities by charities.

When the Bill was in the other place, the Electoral Commission highlighted a situation in its briefing. If a charity distributes material to the public that highlights the views of candidates from different parties on issues related to the charity’s objectives, this may in some circumstances reasonably be regarded as intended to promote the election of those candidates and, as such, would require compliance with the rules in PPERA. That echoes our earlier debate about when what would not be registrable becomes registrable. In such cases, Parliament decided through the passing of the 2000 Act that such activity should be regulated as it could potentially influence electors during an election. Indeed, Parliament chose then—as indeed we replicate in this Bill after amendment in the other place—to go down the road of an objective test. It may well be that it is not a subjective thing by the charity but seen objectively it could fall within the provisions set out in the Bill.

I find some of the arguments against difficult. The noble Baroness, Lady Pitkeathley—who is now in the Chair, so am I allowed to say this?—in a point picked up by my noble friend Lord Tyler, seemed to suggest that the limits on charities would be much more flexible. They would not be as tight as they would be on non-charity third party participants. Indeed, I think that was reflected in the opening comments made by the noble Baroness, Lady Hayter, when she seemed to suggest all the things that Beatrice Webb could have done if she had registered herself as a charity and that none of these things would have been available had she not been a charity.

As my noble friend Lord Phillips said, charities are not allowed to engage in partisan politics and charity law is pretty strict. Trustees of charities are only too well aware of the limitations. Sometimes I got the impression during the debate that we were comparing a free for all—if you registered as a charity—with the registration and regulation of controlled expenditure that would apply to third parties that are not charities under the provisions of this Bill. I do not think that is a proper comparison. That is why I think there is a genuine dilemma, as my noble friend said.

The Electoral Commission is clear that charities should not be exempt from the PPERA regime. That point was made clear by the noble and right reverend Lord, Lord Harries. The position has been endorsed by the Commission on Civil Society and Democratic Engagement which states in its report that,

“it is the Commission’s view that it is right that charities are not excluded from within this legislation, and we believe the Government’s approach to distinguish by activity rather than by type of organisations is correct”.

The Government have taken the view that the nature of the PPERA test and the constraints of charity law will inevitably mean that the circumstances in which charities are caught by the PPERA rules will be rare.

There have been some important points made that I want to reflect on as I do not think it is as quite clear cut. There are clear views on why Parliament did what it did in 2000, and why that has been endorsed by the Electoral Commission and by the commission chaired by the noble and right reverend Lord, Lord Harries. The Government should be cautious about taking as significant a step as exempting charities from the regulatory regime. We would want to see more evidence and would pray for reassurance that this would not create a loophole. There are issues about—and this is an unfortunate expression that has been used in some discussions I have had—a “sliver” of activity, which could take charities which are abiding by charity law into an area which would nevertheless be regulated under the PPERA regime. I would want to be satisfied that it would not lead to avoidance, although I certainly hear the strong arguments asking whether there is any point in setting up a charitable arm which is going to be restricted by charity law. However, it is clearly an issue. It was raised by the Electoral Commission, the Commission on Civil Society and others, and was queried by the noble and learned Lord, Lord Hardie.

The noble Baroness, Lady Mallalieu, raised a point that was mentioned when I talked to people involved in the charitable sector in Scotland at the end of last week. Although charities could have their activities restricted because of charity law if they engaged in any activities which could otherwise have taken them into PPERA regulation, what we do not have is transparency. Transparency is an important issue, which I would ask my noble friend to reflect upon. I am more than happy to have these discussions.

The points made by my noble friend Lord Hodgson on important operational issues are why I would not rush forward to say that we will accept an exemption. However, there are concerns about double-regulation which have been expressed to me, and many will sympathise with those who have the potential to be regulated by both the Electoral Commission and the Charity Commission.

I thank my noble friend for raising this issue. The position which has been taken up until now, as endorsed by the Electoral Commission, has commended itself to the Government. However, some important challenges to that position have been raised and I would therefore not wish to shut the door on further consideration of it. I would be happy to engage not only with my noble friend in picking up some of these points, but also with others who clearly take a strong view that charities should be in the same position as non-charitable organisations in respect of the application of this part of the Bill.

Finally—I know that my noble friend will make the point in his wind-up if I do not respond to it in advance—he said, and I know from previous conversations, that the Charity Commission should perhaps be given more money and resources. This is not the debate, nor am I the Minister with any responsibility, to commit more funds to do that. I hope that I am not misrepresenting my noble friend Lord Hodgson, who I think was making the point that if more resources were going, there were perhaps greater priorities than undertaking a task on electoral regulation which is already done by the Electoral Commission. That is a point, and one I am sure that my noble friend Lord Phillips will articulate when he comes to wind up. In the mean time, I ask him to withdraw his amendment.

[Lord Phillips of Sudbury]

My Lords, I thank everybody who has taken part in this debate. It has swayed to and fro in the best traditions and everybody has made useful points. I have not the time to cover all the offerings, and your Lordships would not want me to at 10.23 pm. However, one or two things I must just say.

The first is to take up the point my noble friend made at the end of his speech, concerning the role of the Charity Commission. My noble friend Lord Hodgson spoke very forcibly about the disparity between the theory of charity law and the actuality of oversight. I accept that, and there is no shadow of doubt in my mind but that if my amendment is accepted on Report, it must and can only be on the basis that the Charity Commission will do a more thorough job than it currently does. I fully accept that, but I am hopeful that that is something which would be very much in the Government’s mind, because if we take a third of a million charities out of the regulatory oversight of the Electoral Commission, we can make major savings, part of which can be deployed in beefing up the Charity Commission’s efforts.

Having said that—forgive me if I bang home the point that I have lived in this sector, so to speak, for 40 years—in my experience there is astonishingly little abuse of charity law. There is an astonishingly high level of public trust as well, and there is a deep revulsion in the sector of trying to play games with it, let alone corrupting it. I emphasise, however, that that does not take away from the point I started by making: there needs to be better enforcement.

The noble Baroness, Lady Hayter, gave an example whereby, I think she said, you could have a biased charity that concentrated its efforts in certain constituencies in order to achieve a certain outcome. That would not be allowed under charity law. It is not that daft. It looks at the whole picture and the substance of what a charity does and if a charity pretended not to be engaged in partisan pursuits but actually was—by, for example, putting its effort only into constituencies where the candidate that it wanted to win was holding a view that it was pushing—that would be wrong and illegal. I am not saying that it would always be picked up by the Charity Commission, but people are on the qui vive these days. I think noble Lords will agree that complaints to the Charity Commission are made regularly and without inhibition.

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

Lord Wallace of Tankerness Excerpts

Monday 16th December 2013 Lords Chamber

[Baroness Royall of Blaisdon (Lab)]

My Lords, I begin by thanking my noble friends Lord Rooker and Lady Blood. Using a deep understanding of Northern Ireland, they have demonstrated why this badly drafted and poorly thought-through Bill has the potential to be so damaging there. My noble friend Lady Blood has huge experience in campaigning in Northern Ireland as part of a grass-roots movement and I pay tribute to her work as chair of the integrated schools movement—a movement which I fully support, does excellent work and must never be muzzled in any shape or form. I very much hope that the Government will heed her advice.

I am sure that I will not be the last in the Chamber today to pass on my sincere thanks to the Commission on Civil Society and Democratic Engagement, specifically the noble and right reverend Lord, Lord Harries, my noble friend Lady Mallalieu and the other commissioners. By seeking evidence from across the UK and by formulating proposals and testing them against the needs of charities and NGOs, they have highlighted how remiss the Government have been in failing to do any of that. We are told that today is to be an extension of the consultation. However, our constitutional role in this House is to scrutinise the Government and revise their proposals. Committee stage should enable noble Lords to debate government proposals and then to table the necessary amendments for Report. Instead, we are being treated as a focus group for the Government to gauge how little they can get away with changing. I therefore ask the noble and learned Lord to give us a cast-iron assurance that, at the latest, we will see any government amendments which might be forthcoming after Committee by the Tuesday when the House returns following the Christmas Recess. That means that the amendments would have to be tabled on the Monday and published on the Tuesday. It is only right that noble Lords, especially those who are engaged with the commission, have an opportunity to look at the amendments properly and to table their own amendments at Report.

As the noble Lord, Lord Cormack, said, on Friday night we had a terrible reminder of how fragile the peace in Northern Ireland is: a large explosive device was left in a busy area of Belfast, at a time when many were out enjoying themselves with friends or colleagues ahead of Christmas. Despite the worrying scenes on Friday, however, a huge amount of progress has been made, and it must not be jeopardised in any way. From the beginning of the Troubles at the start of the 1960s until the Good Friday Agreement, 1,800 people lost their lives in Northern Ireland. One in five people had a family member killed or wounded in the fighting. So we must support the people who have created, and are attempting to sustain, the delicate balance there in the wake of the Good Friday Agreement and, of course, earlier agreements.

As the commission report says:

“NGOs and charities in Northern Ireland are frequently working on issues that relate to ensuring the full implementation of the Good Friday Agreement”.

I was particularly struck by the evidence relating to equality issues and was interested to hear what my noble friend Lady Lister said about women’s voices in Northern Ireland.

As my noble friend Lord Rooker said, the voluntary sector in Northern Ireland has made a huge contribution to nurturing understanding between the two communities there, especially in disadvantaged areas. In a post-conflict society, freedom of expression cannot be taken for granted. Non-governmental organisations carry out roles that do not necessarily come easily to governments in such circumstances. The evidence gathered and presented by the commission on civil society provides us with a vivid example of this in an extraordinarily wide-ranging and inclusive campaign for a Bill of Rights for Northern Ireland.

As my noble friend Lady Mallalieu mentioned, more than 180 community groups have come together as the Human Rights Consortium, including human rights organisations and disability charities. Strikingly, it also contains republican and loyalist ex-prisoners and the injured police officers’ association. The consortium’s campaign is driven by the belief that, in a society emerging from a conflict that has proved to be so scarring, a Bill of Rights can play a vital role in building confidence in a new legal framework. In its own words:

“While there are rights, the European Convention on Human Rights, this is special for our country because here we have a country where I have been brought up to be British, and that was just the way it was, and my neighbour across the street was brought up to think they belonged to another country, but using rights we can work together to form a new contract with the government of our country, which is Northern Ireland. That is why it is so important to people, particularly in working class communities, but that benefits the whole community right across unionist and nationalist and that is why it is so important”.

The consortium’s campaign shows how the Government’s insistence on bringing forward proposals which expand the definition of regulated activity and expand the definition of what has to be counted toward that expenditure while reducing the thresholds for registration, has muddied the waters.

In 2009, representatives from the consortium appeared before the Northern Ireland Affairs Committee. In that appearance, they had the opportunity to present and explain some important polling that they had carried out. It showed 75% public support for a strong and inclusive Bill of Rights. The sample for the poll was weighted so that different communities in Northern Ireland were represented, and the consortium was able to tell the committee that the breakdown of its poll showed high levels of support for a Bill of Rights across different religious communities.

As the Bill is currently drafted, this polling, designed to pressure the Government into action, appears to be a qualifying expense. The Government wish to lower the thresholds of registration in Northern Ireland to a very low level at the same time as widening those definitions. However, there is not a single reason why the thresholds as contained within the existing PPERA legislation could be said to be too high.

Noble Lords on the government Benches may have spotted that much of the campaign that the consortium ran took place under the previous Government, and they will be wondering about my enthusiasm for protecting its rights. But that is what being in government is all about. The huge majority of protest is aimed at whoever is in government, because civil society, NGOs and charities all know that if they want a change of policy they will have to convince whoever is in power. Civil society can be awkward for a Government to deal with. It needs to be, because in a democratic society its role is to scrutinise and to hold to account. It seems as though the Government have not fully understood that, and that is the central problem with the Bill.

I would be grateful if, when the Minister responds, he could outline the detailed changes that will be made to protect the rights of civil society in Northern Ireland and elsewhere in the United Kingdom. I would be particularly grateful for the Government's response to the recommendation from the commission that:

“In advance of introducing any new legislation, Government should”—

this is in relation to Northern Ireland—

“Undertake full, in-depth and considered consultation with a range of organisations in Northern Ireland and with the Stormont Parliament itself to ensure that civil society's contribution within the unique political environment of post-conflict recovery is not jeopardised. In particular, ways should be found to ensure that pre-election regulation does not inhibit progress in towards full implementation of the Good Friday Agreement”.

I trust that we will have several assurances from the Minister in response to this short debate.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, as this is the first of no doubt many occasions on which I shall speak in this debate, I should put on record that I am a member of the board of the Saint Magnus International Festival and a member of the Kirk session of St Magnus Cathedral congregation in Kirkwall, both of which are charities registered with the Office of the Scottish Charity Regulator.

I am grateful to the noble Lord, Lord Rooker, for introducing this debate and Committee sitting. With the indulgence of the House—and perhaps responding to some of the things that the noble Baroness, Lady Royall, said—perhaps I may first update the House on the consultations that the Government have had, and benefited from, over the past six weeks. I should also like to indicate how grateful we are to the many campaigning groups, charities and others—and Members of your Lordships' House—who have taken the time to discuss these matters.

My noble friend Lord Wallace of Saltaire has written twice to noble Lords offering discussions—and I thank the noble Lord, Lord Rooker, for his expression of good wishes to my noble friend Lord Wallace. I assure the noble Lord that no one wishes my noble friend a speedier recovery than I do. My noble friend texted when I was on my way down south from Scotland today to say that he was home. Somewhat alarmingly, he also said that he might be watching some of our proceedings on the parliamentary TV channel. I asked him to check his blood pressure levels before doing so.

I know that my noble friend has valued the meetings that have taken place, as have I. There have been meetings with nearly 50 organisations to discuss how the Bill might affect them, and there has been correspondence with many more. Organisations which we have spoken to reflect the diversity of civil society in the United Kingdom, including large charities, campaigning organisations, umbrella organisations and specialist organisations.

I wish particularly to express my thanks—the noble Baroness said that it would not be the last time that that would be the case in these debates—to the noble and right reverend Lord, Lord Harries of Pentregarth, the noble Baroness, Lady Mallalieu, and other members of the Commission on Civil Society and Democratic Engagement for its comprehensive second report on the Bill. Campaigning groups have made numerous suggestions about changes that might be made to the legislation, many of which are reflected in the amendments that have been tabled. We have been considering these suggestions carefully. I do not accept that this House is a focus group; it is important that this House should scrutinise government legislation. We thought it equally important, in framing the amendments we would bring forward, to have the benefit of full and thorough exchanges on the amendments that have been tabled both today and on Wednesday.

The noble Baroness has asked for a guarantee that the amendments will be available on the first sitting day after the Recess. While it is one that I would love to give, I am sure she will understand that I cannot do that with certainty, although we aspire to it. At any other time of the year it might be easier to do so, but as the Committee will be aware, quite frankly it can be difficult at this time of year to make sure that all the people concerned are in the right place. However, I take the important point that those who have taken a particular interest in this Bill are given proper notice of the amendments that the Government are to propose before the House comes to debate the Bill at Report stage.

One area where we have heard consistently that more clarity is needed is over the guidance as to which activity might or might not be caught by the electoral test, and I may be able to say something about that in the course of replying to the specific points raised by the amendment moved by the noble Lord, Lord Rooker. The Government believe that it is essential that campaigners have clarity on how they are to comply with the third-party regulatory regime. The Electoral Commission has a power to produce guidance for third parties campaigning in elections, and indeed has exercised that power in previous elections. Campaigners require clear guidance to support them and help them understand the revised regime, and I am reassured that the commission recognises this too. It makes clear in its briefing notes that it is committed to working with the United Kingdom’s charity regulators to produce clear and reliable guidance that will help charities to understand how to comply with both electoral law and charity law, and I say that without pre-empting subsequent debates that we will have on charities. Also, I would say that the sooner this guidance can be produced in draft, the better. As a Government we are open to working across the House and with the electoral and charity commissions to give campaigners the guidance they need. It may be that we will hear in these debates in Committee how best the commissions can support campaigners in a thorough and timely way.

Charities and campaigners have also expressed fears that low-level campaigning and expenditure will be regulated as a result of this Bill, and that small organisations will face a disproportionate reporting and compliance burden. Our belief is that there should be greater clarity about who is campaigning for the electoral success of parties or candidates, but we do not want small campaigners to be dissuaded from taking part by the fear of having onerous burdens placed upon them. Therefore in line with the commitment made by my noble friend Lord Wallace of Saltaire to the House on 5 November, the Government will bring forward on Report amendments to increase the registration thresholds in England, Scotland, Wales and Northern Ireland. As I have said, we will listen to the debates today, but the Government believe that the substantial increase in the threshold currently set out in the Bill is appropriate.

Finally, as a preliminary, the Government are committed to bringing more transparency to campaigning by third parties before the 2015 general election, but having listened to the views of campaigners over recent weeks, I seek to reassure noble Lords that we agree with those who think that the provisions of Part 2 should be subject to review after the 2015 UK parliamentary general election. That election will provide the earliest opportunity to understand the effectiveness of the provisions of Part 2. The Government therefore commit to laying this review before Parliament, and an amendment to this effect will be introduced at Report stage. As I have said, beyond that I do not wish to pre-empt the debates today and on Wednesday. Of course, the Government wish to hear views from across the House on the amendments which have been tabled, and I hope that these points and a short statement will assure your Lordships that while the Government are absolutely committed to the increased transparency that Part 2 will bring, we have been listening and will continue to listen to those who have strong views on this legislation.

I turn now specifically to the amendment moved by the noble Lord, Lord Rooker. As we have heard, it would exclude Northern Ireland from the provisions contained in Part 2. That exemption would stand for as long as there is a statutory Executive based on the Good Friday agreement, which is in place. I readily accept that there is a different political structure in Northern Ireland, where different parties compete for elections, than is the situation in Great Britain. It is clear that there is a particular situation in Northern Ireland and it is important that the legislation should take account of that.

I have been particularly struck by the contributions that have stressed the importance of civil society, not just across the United Kingdom but particularly in Northern Ireland, and the role of community groups in developing policies. I think the noble Lord, Lord Rooker, and the noble Baroness, Lady Blood, said that, very often, in the years when there was a lack of political leadership, community groups were very important in coming together and giving leadership on specific policy issues. We do not in any way wish to negate the impact that they have had or the work that they do. The Government recognise that and I hope that I can reassure the House by saying that we do not believe that that important work would in any way be prejudiced or jeopardised by the provisions in the Bill.

--- Later in debate ---

[Baroness Lister of Burtersett]

Can the noble and learned Lord give an answer to my question about whether any further work has been done on the equalities impact assessment? This is not relevant only to Northern Ireland but, for the reasons I gave, is particularly so there.

[Lord Wallace of Tankerness]

My Lords, I apologise for overlooking my scribbled note. As part of the impact assessment at the time the Bill was published, we said that 30 third parties were recognised by the Electoral Commission for the 2010 general election and that there were no robust equalities data covering these groups. However, we did not believe that these proposals would have an adverse equalities impact because of the wide range of groups that were registered. There is nothing to suggest that there was a preponderance of gender equality organisations. We therefore do not believe there is particular impact in that regard.

In the 2010 election in Northern Ireland, 10 third parties spent a total of £26,773 while £27,000 could potentially have been spent by each third party. The total for 10 third parties was, therefore, less than what one could have spent. Only two incurred expenditure above the current £5,000 registration threshold.

[Lord Harries of Pentregarth]

The Minister said he did not think that the Human Rights Consortium would be captured by the present legislation because it could not reasonably be interpreted as wanting,

“to promote or procure electoral success”,

of a particular party or candidate. However, does he agree in principle that in an election year, such a human rights consortium, which might be opposed by one of the parties standing for election, could actually be caught? There are some very important subsections in the Bill. Clause 26(4)(c) says that,

“though it does not involve any express mention being made of the name of any party or candidate”,

and proposed new subsection (4A) says that,

“it is immaterial that it can reasonably be regarded as intended to achieve any other purpose as well”.

Therefore, there could be a human rights consortium, which as a result of those two subsections could possibly be interpreted as supporting a particular party or candidate. Real difficulties remain, even if that particular example would not be caught.

[Lord Wallace of Tankerness]

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

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

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

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

“to promote or procure electoral success”,

of a particular party or candidate.

[Lord Rooker]

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

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

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

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

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

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

--- Later in debate ---

[Baroness Hayter of Kentish Town]

I do not think that any one clause quite does that, but it is interesting if that is the noble Lord’s interpretation. Assuming that we take the Government’s intention as genuine—we can perhaps agree that this should just be about transparency—our view is that the extension of the scope has the unintended consequence of extending it from purely publications to an enormous range of other activities and things such as staff costs, transport and hire of halls. That fundamentally alters the position, which is what we are questioning. Is the effect of the Bill the same as the intent—transparency—or is the effect the chilling one that every charity and community group is telling us about? It feels like watching the Army march, with one young soldier out of line and his mother saying, “My son is marching properly but everyone else is out of step”. It seems that everyone who is commenting on the Bill has worries about the effect—except, of course, the Minister.

It was interesting and very noticeable that Lib Dem Members stood up when I used the words Sheffield Hallam. Can the Minister confirm my interpretation—it would also be interesting to hear from the noble Lord, Lord Tyler—on whether, had the Bill been an Act in 2010, so looking backwards rather than forwards, the NUS-Lib Dem antics over tuition fees would have been permissible? My reading is that they would not have been, that the NUS would have been caught had it spent too much. I have the feeling—and the NUS shares the figures on this—that, including events, press campaign tools, photographs, travel and related staff costs, the photos of those various Lib Dem candidates pledging not to increase tuition fees would have been caught by these rules, therefore requiring the NUS to register and account for all its costs. The interesting question is whether that would be the case.

[Lord Wallace of Tankerness]

I wonder what the noble Baroness is thinking. Activity by candidates, which is caught by other parts of the PPERA, is completely different from non-party expenditure, which is what we are debating in Part 2 of the Bill. I want to give the noble Baroness the opportunity to tell me what I may be missing, but activity by candidates seeking election is clearly political.

[Baroness Hayter of Kentish Town]

The NUS and other student groups have raised an interesting question about work done in the year before an election. Can the noble and learned Lord assure the student groups—and it is the Bangor student union that has been writing to noble Lords—that they can continue to campaign? The fact that student groups are concerned is another example of the uncertainty about this issue. It is not just charities: other groups would also need to be concerned that expenditure on a campaign like tuition fees—or the Stop the War coalition, which we knew rather a lot about—early on before a general election could fall within this. If a political party adopted what another group had been campaigning on and that became a big issue at an election—I recall that the Iraq war was such an issue—then the work done maybe 12 months before the election would be caught by this provision. If we understand it correctly—and this is why a stand part debate is absolutely right for this bit—this clause would have the effect of expanding the scope of the Bill to bring into account the cost, in that 12 months, of activities like rallies, marches, hire of transport, stewarding and all those sorts of things.

The other point I want to raise on this clause is the administrative burden brought in by the addition of these types of activities; they are separate from publications, which are relatively easy to account for. It is interesting that another part of the Government is doing a lot about getting rid of red tape at the moment. Last month, this House agreed a statutory instrument allowing small companies to no longer do full accounts if they do not exceed two of either: gross assets of over one-third of a million pounds, a turnover of over two-thirds of a million pounds or an average of 10 employees. That will not apply to charities, which are excluded, but it will exempt other small groups from having to do full accounts. However, those exact same groups, having been relieved by BIS from all that red tape, will, because of the extended activities related to the items included in this clause, have to go through an enormous, complicated, bureaucratic form-filling process.

This is not about taking the big money out of politics. These groups are not about getting elected. They are about giving a voice to the unrepresented and the unheard. They are a key part of our democracy and perhaps that is what the Government do not like. They have not responded to the concerns of these groups. The Electoral Commission—the Government’s own adviser—says:

“Because the Bill brings some kinds of activity into the regime for the first time, we have said to the Government that the wording that defines controlled spending needs close consideration and scrutiny … to assess the cumulative impact … on campaigners, taking into account … the scope of controlled spending … lower thresholds”,

which we will come to, “lower spending limits”, which we will come to,

“new limits on spending in constituencies”,

which we will come to, and, “concerns about administrative burdens”. We will come on to these points, but they all flow from this clause, which extends the scope. The Electoral Commission urged the Government to think very carefully about the wording. As we have heard from the noble and learned Lord, Lord Hardie, those concerns remain or he would not have moved his amendment.

I am sorry that some noble Lords seem to think that this is a Second Reading issue. To me, this is a part of Committee, a way of saying to the Government that if what they intend is transparency and this Bill fails to produce it but instead produces unintended consequences of fear, of people not campaigning when they want to, surely this is the point for us to say to the Government that the wording of this clause is not good enough. The Government should both explain why they have failed to find a solution to the concerns that were raised at Second Reading and give a reason to the House why this clause should stand part of the Bill.

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have taken part in this important debate on the core definition. In particular, I thank the noble and learned Lord, Lord Hardie, for moving his amendment, which initiated the debate. The noble Baroness, Lady Hayter, indicated correctly that the stand part debate was part of this group. Actually, the next group also includes amendments relating to Clause 26.

Clause 26 seeks to amend the definition of what is regarded as controlled expenditure for recognised third parties. I want to be clear about what we are doing and what we are not doing. Yes, we are widening the range of activities for which campaign expenditure by a recognised third party will be treated as “controlled expenditure”. Schedule 3 inserts a new Schedule 8A into the Political Parties, Elections and Referendums Act 2000. The new Schedule 8A expands the activities that will count in a way that closely reflects the scope of the rules for political parties. That change means that not only will written “election material” be regulated but so will other events such as media work associated with an election campaign by a third party. The next group of amendments goes over these changes in some detail.

What we are not doing is widening what the spending must be about. Expenditure is only controlled expenditure if it,

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

of a party or candidates. I am particularly grateful to my noble friend Lord Greaves—who I hope will continue to be an election agent for many elections to come—for summing it up. He said that in seeking the objectives of greater transparency, we should not have a chilling effect. That is an objective that we share and seek to implement in this Bill. We do not want our national politics taken over by super-PACs—as he said, “big bucks from big boys”—and we do not want a situation where it is possible for a third party organisation to spend more than the candidates can legitimately spend. I agree that what we are seeking to do is a listening exercise. The noble Lord, Lord Rooker, summed it up correctly. What Governments do in Committee is listen, get the mood of the House and reflect on what has been said, and that is certainly what we intend to do.

We are aware of the concerns expressed by charities and voluntary organisations that the proposed test will impact upon their normal day-to-day activities. The Government believe that, by not changing the existing test for controlled expenditure, charities, voluntary organisations and other campaigners should be reassured that their normal engagement with public policy will not be subject to regulation as long as it cannot,

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

of a party or candidate.

I will pick up two specific concerns that were expressed. The noble Earl, Lord Sandwich, expressed that concern about small charities—we will come on to the thresholds later—but he also mentioned the importance of volunteers working with small charities, which I certainly recognise. I can indicate to the noble Earl and to the House that volunteer costs will not have to be included in the calculation of staff costs because volunteers are excluded from the calculation of staff costs by virtue of Section 87(2)(b) of the 2000 Act.

My noble friend Lord Hodgson asked about hustings meetings if not all candidates are invited. My noble friend Lord Phillips made reference to Charity Commission guidance on this. My understanding is that the Electoral Commission has said that it expects non-party campaigners to apply a similar approach to current hustings guidance. Subject to any change of approach in that guidance as a result of the review that is taking place, this would mean that the costs of a hustings event involving political parties will be controlled spending under the non-party campaigning rules only if all the following conditions apply.

Those conditions are: the event features party spokespeople—hustings events that feature only local candidates will be covered by the candidate spending rules, as at present; that the event is open to the public, rather than just members of the organisation that is organising the hustings; that the event features party spokespeople and not all parties contesting the election are invited to attend; and that organisers cannot provide objective reasons for their decision as to which parties to invite, such as the parties’ prominence or track record in previous elections. I recognise that this is an issue and I will certainly write to the noble Lord and ensure that that letter is available, not only, I suspect, to Members of the House but to those who have a wider interest in this matter.

The test that I am referring to has been in existence since 2000 and was in place for the 2005 and 2010 general elections. These elections did not see charities and other campaigners being prevented from engaging in and influencing public policy, although I take the point that it is “other activities” and any possible changes to the threshold that are giving rise to concern.

The amendments in the name of the noble and learned Lord, Lord Hardie, would amend Clause 26 so that only activity that can reasonably be regarded as intended for the “principal purpose” of promoting or procuring the electoral success of a party or candidate is covered. However, we believe that the introduction of a “principal purpose” test could lead to greater regulatory uncertainty, as well as an obvious avenue for avoidance, which could undermine the rules as a whole.

On the point of regulatory uncertainty, the Electoral Commission has expressed concerns that we would be retaining a familiar test but introducing a new subjective element which could lead to significant regulatory difficulty. Determining the “principal purpose” of any expenditure adds a new layer of judgment and complexity to the test and therefore could complicate rather than clarify.

The test also creates an obvious avenue for avoidance; for example, a regulation campaign presented as mainly trying to recruit members and donors could clearly also be seen to be promoting electoral success, and in these circumstances might not be covered. Under the “principal purpose” test, the fact that there was a clear intention to support a party or candidates would therefore be immaterial and not subject to regulation.

This issue was looked at by the Committee on Standards in Public Life back in 1998, which led to the establishment of the 2000 legislation. Paragraph 10.78 of the committee’s report refers to activities in the 1959 general election—I can just about remember accompanying my parents to a polling station and having the day off school. It says that,

“a privately owned steel firm, Stewarts and Lloyds, ran a series of advertisements in daily and Sunday newspapers, most of which were thought to have large Labour readerships. The advertisements were clearly intended to discourage voters from voting Labour. That is not, however, what they said. On the contrary, the Stewarts and Lloyds slogan insisted: ‘It’s not your vote we ask for, it’s your voice. Speak up against state-owned steel’. In one advertisement, published in the pro-Labour Daily Herald, the firm stated baldly: ‘This advertisement is not trying to sway votes in any political election’”.

The committee goes on to say:

“It is clear to us that advertising of this kind … has as one of its objects or one of its foreseeable effects, though not necessarily the only one, promoting the electoral prospects of one or more political parties and damaging the electoral prospects of one or more others. It is simply naive to imagine that organisations that send out explicitly political messages in the midst of election campaigns, or shortly in advance of them, are engaged innocently in generalised, nonpartisan promotional propaganda”.

That is why there is concern about introducing a subjective element.

The first recommendation of the most recent report of the Commission on Civil Society and Democratic Engagement, on the definition of regulated non-party campaigning, says:

“PPERA and the Lobbying Bill include a definition of non-party campaigning that is both ambiguous in meaning and makes too many campaigning activities subject to regulation that are not intended to promote or procure the election of a registered party and its candidates”.

If the campaigning is not intended to procure that, by this very definition it will not be regulated or controlled expenditure. The only difference is whether there is a subjective test or an objective test. For reasons of trying to minimise avoidance, the objective test is the proper one. Amendment 159B tabled by the noble and right reverend Lord, Lord Harries, amends Clause 26 so that any campaign which can 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. Again, to incur controlled expenditure a third party must be carrying out an activity that it would be reasonable to regard as intended to promote or procure the electoral success of a party or candidate.

I take issue with one thing that my noble friend Lord Greaves said relating to campaigning during a Scottish parliamentary election or a European election over issues in Parliament at Westminster. He said that he thought that normal campaigning activities ought not to be prevented. I am interested in the words he used: “ought not to be prevented”. There is nothing intentional here to prevent activities. If it is an activity which would pass the threshold and be seen as intended to promote or procure an electoral advantage for a party or for a candidate, then it is for registration for regulation. The purpose is not to prevent it. I understand why he said that; it is a common slip of the tongue. Indeed, the noble Baroness, Lady Hayter, asked how many of Beatrice Webb’s campaigns would be ruled out. There is nothing here that would rule them out unless they reached the spending limit, which the Green Party did not even reach at the last general election.

However, I take on board the perfectly legitimate concern that I have heard at a number of the meetings I have had about the possibilities of a chilling effect. That is why it is important that we look at these issues and try to ensure that we have proper transparency without introducing a chilling effect. I plead guilty at some of the meetings to a slip of the tongue that this will rule out a particular sort of campaigning. It is not surprising that some charities and third-party organisations get the impression that they will not be allowed to campaign, but that is neither the purpose nor the effect of this part of the Bill. If you are going to undertake campaigning activities which would procure or promote the electoral advantage of one party or a candidate, then if you reach a particular threshold you should be registered and there will be the transparency that goes beyond that. We can debate the size of the spending limit it would be subject to, but many of the charities which have expressed concerns would come nowhere near the top spending limit that has been suggested in their normal activities.

[Lord Greaves]

I accept everything that my noble and learned friend said about the difficulty of getting absolutely clear in our minds what we are talking about. We are of course talking about whether expenditure comes within the regulation, not whether it is ruled out. However, let us imagine that during a UK general election the Scottish Parliament is considering a Bill that is highly controversial in Scotland and that is being promoted by the present SNP Scottish Government but opposed by everybody else. If organisations in Scotland lobby on that Bill during the regulated period running up to a UK general election, will they be caught or not? That is the question I am asking.

[Lord Wallace of Tankerness]

Our view is that if it could reasonably be seen that the purpose of that lobbying was to get the Scottish Government to change their mind, then no, the organisations would not be caught. However, if to further that campaign they were to say, “And by the way, in this general election don’t any of you vote SNP because that will only encourage them”, then I think that would cross the threshold. But if the focus and intention was to try to change the policies of the Scottish Government with a particular piece of legislation, it would not be a campaign that was intended to influence the outcome of the United Kingdom general election.

[Lord Harries of Pentregarth]

Is this not a fundamental threat to democracy? Let us take an English example. One party wants an extra runway at Heathrow. That is opposed by another party. If this is going through during an election year, surely campaigning groups should not be hindered in any way. They should have no curb on their election expenditure at all. It is a fundamental fact of democracy. They should be allowed to campaign.

[Lord Wallace of Tankerness]

My Lords, of course they will be allowed to campaign. I agree that it would be a travesty if they were not allowed to campaign. But if that campaign then crosses a line from campaigning on a perfectly legitimate issue to saying, “In our campaigning we advise you not to vote for A, B, C and D and to vote for F, G, H, J and K”, it is not that they are stopped from doing that; it is just that it becomes a regulated activity and they will have to account for the funds that they spend on promoting the election of particular candidates or the non-election of others—and there would be a top limit, just as political parties have limits on what they are allowed spend.

There is no question of them not being allowed to campaign. I fear that sometimes this debate has been unfortunate—as I say, we have all possibly been guilty of using loose language at times—because the impression has been given that we would not be allowed to campaign. It is not that we would not be allowed to campaign; it is just that if a campaign moves from a campaign on an issue to a campaign that seeks to promote or procure the election of a particular party or candidate, it becomes regulated expense.

[Lord Harries of Pentregarth]

I am sorry to delay the Minister further, but with due respect I do not think he is really facing up to the difficulty of the present definition of qualifying expenses. I agree with him that if a particular campaigning group says, “Therefore you must vote A, B or C”, of course that would need to be regulated. But it still might be liable to be regulated even if it did not do that, because the Bill is quite clear that you do not have to mention a particular party, and that it does not have to be your primary purpose. It could be reasonably interpreted that if one party is supporting an expansion at Heathrow and one is opposing it, by implication the campaigning group wants one party elected rather than another. There are fundamental difficulties here.

[Lord Wallace of Tankerness]

That reflects some of the amendments tabled by my noble friend Lord Tyler, to which the noble and right reverend Lord, Lord Harries, lent his support. We are grappling with real issues here as to the clarity or otherwise of when people will cross a line. I accept that there are some cases which are quite clearly on one side of the line and others that are nearer the margins. The noble Baroness, Lady Hayter, said that some people had been advised by the Electoral Commission that what they were proposing to do would be regulated. I would say to them, “Take the advice of the Electoral Commission. If it says you should be regulated, then register”. There is nothing stopping people campaigning. In fact, they might campaign with a lot more confidence if they know that they are doing the right thing because they have taken the advice of the Electoral Commission.

[Baroness Hayter of Kentish Town]

I dread going on to other clauses, because I am going to get told off, but this is rather important. Registration is a threat to many of these organisations. They do not have the staff to fill in the forms. Charities are worried that by being registered with the Electoral Commission rather than the Charity Commission, it will look as if they are political because of the word. The bureaucracy of it frightens them. Some organisations will be responsible for 15 or 20 local groups. They will get caught by coalition funding. The Minister says, “Let them register”. The problem is, that in itself is a threat. Maybe he has misunderstood the threat of registration to these organisations.

[Lord Wallace of Tankerness]

My Lords, I do not think that I have, because I indicated that one of the concerns we have is the potential chilling effect. I am trying to make it clear that the threat is not that they cannot campaign at all. I regret sometimes the language used. It may be inadvertent, but the problem is that if we as politicians dealing with the Bill say that people will not be allowed to campaign on certain issues, it will be picked up outside and people will believe that they might not be allowed to campaign on certain issues. I hear what the noble Baroness says about the threat. I do not believe that registration is necessarily a threat. It is part of trying to secure transparency, as my noble friend Lord Tyler said. It is trying to secure the right balance, because the more transparency you have, the more likely it is that you will have more regulation. We are doing an important task as a Committee, which is to put up issues to make sure that we try to achieve the right balance.

In relation to other amendments, my noble friend Lord Greaves sought to exempt activities relating to research, press conferences, meetings and the lobbying of government and other legislative bodies. Again, the same explanation applies. The day-to-day activities of third parties, including working with legislative bodies across the United Kingdom, is not, and under the Bill would not be, subject to regulation under PPERA. Only activities which a reasonable person would regard as intended to promote or procure electoral success are captured.

Amendment 159D is about the same issue: issues being debated in another legislature. In the European election, the European Parliament cannot determine whether Britain continues its membership of the European Union, but it is not impossible—it does not need too much imagination—to think that it might be what third parties might be campaigning on in the forthcoming European elections. If that is what they are campaigning on to promote one party over another, it is not unreasonable, if they meet the thresholds, to require them to register.

The noble Lord, Lord Walton, talked about the all-party groups and the important work that was done in relation to muscular dystrophy. I understood him to ask whether the charities that support those groups with staff will be covered. It is difficult to see how the work of all-party groups—he knows this, as he showed in his remarks—could be caught or how the groups could be promoting electoral success in the reports they produce. However, the difference might be if one of the charitable bodies that had been supporting the all-party group were to turn around and say, “We helped produce this report. Member X and Member Y are really good people and people should go out and support them”. I am not suggesting for one minute that they would do that, as charity law might make it very difficult for them, but that would be trying to procure an election result and so on. Simply supporting an all-party group doing the very valuable work that the all-party groups do could not be seen as promoting a particular—

[Lord Walton of Detchant]

If, say, an all-party group on heart surgery had decided, on excellent scientific advice, that it wished to support the continuation of paediatric cardiac surgery in one centre but not in another, which was in a different constituency, would that be regarded as being in breach of the law?

[Lord Wallace of Tankerness]

In all these hypotheticals, you hesitate, but I cannot see how supporting what must essentially be a medical judgment by a group to support a particular centre over another—it is not supporting a particular candidate or party over another—would constitute trying to promote a political party. It might be promoting a particular medical centre, but that is not the same as a political party.

[Baroness Royall of Blaisdon]

My Lords, I accept that the issue relating to APPGs is difficult, but I am sure that there is—forgive my ignorance—an anti-smoking APPG that may well be wholly in favour of standardised packaging for cigarettes. We know that we all agree on this measure, at the moment, but if, six months before the election, this had not been resolved and the APPG still seemed to support the introduction of standardised packaging on cigarettes—which is something that the coalition used to be against and we were in favour of—would that be caught by the new law?

[Lord Wallace of Tankerness]

I find it difficult to see how an all-party group, supported by all parties, would fall foul of something, because by its very nature that would be difficult. The noble Baroness raises a point that was at the core of the points made by my noble friend Lord Tyler about when there is a change in a particular policy. This brings us to an important issue about what should be in the Bill and what should be left to guidance. This point was also made by the noble and learned Lord, Lord Hardie, who asked about groups changing their policy position in the middle of the controlled period.

[Lord Hardie]

I was not speaking about a group changing its position but about a group remaining constant and a candidate then adopting the campaign. I accept that retrospectively the expenditure is protected, but what about prospectively? What about future expenditure?

[Lord Wallace of Tankerness]

I apologise; I misrepresented the point. What happens if the group maintains its campaign and one party suddenly comes on board and, presumably, one party breaks rank and retreats? The Electoral Commission’s guidance is clear that if a party or candidate subsequently adopts a campaigning organisation’s policy, it will not be caught unless the campaigning organisation draws attention to the fact or increases its campaigning as a result. In addition, a group must be reasonably regarded as intending to procure electoral success. If at the time a party or candidate does not have a policy on the subject of the organisation’s campaign, it is very difficult to see how it could be seen to be promoting that candidate or the party. Indeed, it would seem to be impossible to objectively argue that a policy campaign by a third party could be intended to favour a party or candidates if those parties’ or candidates’ views on the policy were unknown at the time.

A question was also asked about the scorecard count. A third party setting out a scorecard 11 months before an election could reasonably be regarded as trying to get parties to change their policy, not necessarily to promote electoral success. However, a third party publishing a scorecard a week before election day might be regarded as promoting the electoral success of a party or candidate.

The noble and right reverend Lord, Lord Harries, put his finger on it by saying that many of the groups he has talked to would rather that this was in legislation. On the scorecard issue, I sought to show that there were shades of this. It can sometimes be very difficult if you try to pin it down too much in legislation. Often when we legislate with specific examples—I have heard this on other subjects in your Lordships’ House—we can do more damage and cause more uncertainty by what is left out than by what is there. It does not allow the flexibility to take full circumstances into account.

What has been raised is a perfectly legitimate point for this Committee to express views on. We as a Government should consider whether it is better to have these things set out in statute, subject to the misgivings that I have expressed about inflexibility—once it is there, it takes primary legislation to repeal it—or whether it is better to allow that position to be determined by guidance.

The next paragraph in the report from the Committee on Standards in Public Life states:

“That said, we acknowledge, of course, that in some cases it will be hard to determine whether the advertising and other propaganda undertaken by an individual or organisation other than a political party is or is not intended to affect an election outcome. Ultimately it will be up to the courts to decide in such cases, but one role we envisage for the Electoral Commission”—

which did not exist when this was written—

“is in giving authoritative but not legally binding advice on such matters”.

It would appear that those who set all this in motion some 15 years ago saw giving guidance as a proper role for the Electoral Commission. As I indicated in my opening remarks on the previous amendment, we engage with the Electoral Commission and believe that it would be helpful to have draft guidance available. I also accept—this is something that we want to reflect on—the views that have been expressed in the House that some of this would be better put in primary legislation. That said, as I indicated, there are drawbacks with that as well.

I hope that in that spirit I can invite the noble and learned Lord, Lord Hardie, to withdraw his amendment.

[Lord Hardie]

I thank noble Lords on all sides of the House for participating in this full and interesting debate. It is quite clear that there is a certain consensus that it is essential we get the balance right in the Act, avoid unintended consequences and clear up grey areas. I note from the noble and learned Lord the Advocate-General that the Government will consider the extent to which the legislation should be amended. In light of that, I will reflect on everything that has been said today. In the mean time, I beg leave to withdraw the amendment.

Scotland: Independence

Lord Wallace of Tankerness Excerpts

Thursday 5th December 2013 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I start by echoing what many of your Lordships have said, by thanking my noble friend Lord Forsyth for securing this debate and introducing it—and, indeed, for the animated and spirited way in which he made his case. He covered, in a very short time, most of the salient points that were made in the debate. I acknowledge that he was not alone in asking for a much longer debate; indeed, I think most other contributors to the debate said the same. I have noted that request, and will ensure that it is conveyed back to the business managers. Even I am constrained in replying to all the points that have been made in this debate, and would perhaps like longer to do so. That is an important point.

Numerous noble Lords have asked for a Joint Committee. Clearly, that is a matter that could be established only with agreement across both Houses. As ever, I shall ensure that the usual channels consider the request. It is also important to put it on record that committees and their members in both Houses are already undertaking much work on the implications of independence in a whole range of different areas; they are making the case for the union and exposing the gaps in the case for independence. I pay tribute to the work done by a number of Select Committees, both in your Lordships’ House and in the other place.

[Lord Campbell-Savours (Lab)]

The Minister says that this will be a matter for the usual channels, but could not Ministers in this House approach the Leader of the House of Commons and ask him whether it is possible to take such an initiative forward?

[Lord Wallace of Tankerness]

I thought that the Leader of the House of Commons was part of the usual channels. This would have to be done with the collaboration of both Houses, but I am saying that we will reflect on the matter. I cannot go further in making any commitment today, other than what I have already said.

My noble friend chose a debate specifically on the date, because I think he had to put his application into a ballot before the White Paper had been published. It may be worth reflecting on the fact that the date may be about the only thing in the White Paper that had not previously been in the public domain—and even that was leaked about two days before publication. We had already been told that the date would be in March 2016, so I suspect the only new information was the specific date of 24 March, which I think is the anniversary of the death of Queen Elizabeth I, and therefore of the union of the Crowns. Indeed, as my noble friend the Duke of Montrose reminded us when he talked about the Earl of Seafield and the end of the auld sang, it is also the date on which the previous Scottish Parliament last sat. However, I rather suspect that that was an ex post facto justification that some people gave for that date, rather than stating the reason that, as my noble friend pointed out, it will be the start of the 2016 Scottish election campaign.

I take the point that even if Scotland were—heaven forbid—to vote yes, actually naming your cut-off point does not seem the best way to go about negotiations. One of the things that has been evident from this debate, if not necessarily from the White Paper, is that a considerable amount of negotiation will have to take place. That point was made by the noble Lord, Lord Foulkes.

Sometimes we have heard people in the Scottish Government compare this White Paper to the 1997 White Paper produced by the Labour Government, which paved the way to the referendum on devolution. However, there is a world of difference between a White Paper produced by a Government, which reflected a constitutional convention that had met in public over many years and had achieved a consensus, and a White Paper that is the product of a single party behind closed doors, and is dependent not just on the Government of the rest of the United Kingdom, but on other member states of the European Union, members of NATO and numerous other countries. It is important to make the point that this White Paper has no guarantee of delivery. It is, as the noble Lord, Lord Kerr, said, strong on assertion but perhaps not so strong on argument.

My noble friend the Duke of Montrose asked about the fact that it is sometimes said by some Scottish National Party people that there would be two new countries, and the rest of the United Kingdom would have to negotiate lots of other treaties. However, the first Scotland analysis paper, which the Government produced in February, examined the constitutional position. We did so on the basis of advice from Professor James Crawford of Cambridge University and Professor Boyle of Edinburgh University—two outstanding experts in the field. Their analysis—one which represents the view of the United Kingdom Government—is that the rest of the United Kingdom would be a continuing state, with all the rights and responsibilities such as permanent membership of the Security Council of the United Nations and membership of the European Union on the terms that have been negotiated, and Scotland would be a new state.

It sometimes seems rather odd to me that a party that aspires to independence finds it awkward to admit that it wants to be a new state. I thought that was the whole purpose. Scotland would be a new state, and it would have to enter into a whole series of different negotiations, including seeking membership of NATO and the European Union. If I may pick up another point, it was certainly rather a novel approach—perhaps this is one of the other things in the White Paper that we had not quite anticipated—to refer to Article 48 of the TFEU. The view of the United Kingdom Government—again, this was set out in the first paper of the Scotland analysis series—is that Article 49 would represent the appropriate way forward. We can have a debate as to whether Scotland would have to come out to go back in, or whether there would be a possibility, following a yes vote, of negotiations taking place during that period. However, the important point, which was reflected in the speeches by my noble friend Lord Forsyth and the noble Lord, Lord Kerr, is that there would have to be negotiations—and we cannot predict with any certainty what would be in those negotiations. The only thing that is certain is the uncertainty.

Arguments have been made about Schengen, about membership of the euro and about the rebate. Approaching this from the perspective of Croatia or Bulgaria, we would be talking about giving a rebate to a country that the First Minister has said would be the eighth wealthiest in the world. I also think that there is a misunderstanding on the part of the Scottish Government as to the nature of the rebate. They have said, “As the budget has been set for the European Union for 2014-20, we will decide between Scotland and the rest of the United Kingdom how the rebate is split up”. I know that there are people in this House who are much more knowledgeable about this matter than me but my understanding is that it is not a constant, annual lump sum that can be divvied up or shared; it is a function of the United Kingdom’s respective shares in the EU economy and receipts. Any change in the size of the United Kingdom, for example as a result of independence, would automatically be reflected in the rebate calculation. Therefore, there would not be a Scottish share of the UK rebate to be handed over. There seems to be a fundamental misunderstanding on the part of the Scottish Government in their White Paper as to what they are talking about.

As regards currency, my right honourable friend the Chancellor of the Exchequer has said that it is highly unlikely that there would be a currency union. That was reflected by other former Chancellors, including Alistair Darling, and the former Chancellor and Prime Minister, Gordon Brown. I think it also has been said by the Shadow Chancellor. Therefore, while we get an answer to whether Scotland could take part in the Eurovision Song Contest, we do not get an answer as to what the currency position would be if a monetary union was not agreed with the rest of the United Kingdom. Because questions such as that are ducked, the Scottish people will not be given, as a result of this White Paper or from the Scottish Government, the proper information with which they can make up their minds—our minds—when voting on 18 September next year.

My noble friend Lord Selkirk talked about defence and the primary importance of the security of the realm. We believe that the whole of Scotland and the United Kingdom benefits from a full range of UK defence capabilities and activities. Scotland has greater security and influence with the United Kingdom’s geopolitical influence, which few states of similar size to Scotland can match. In addition, there is the important defence industry in Scotland. On the idea of joint procurement, as far as I am aware, since the Second World War, no complex naval vessels have been built outside the United Kingdom. If the rest of the United Kingdom should start building these vessels outside the UK, that could not automatically go to Scotland. There would have to be open competition, even in these circumstances. My noble friend is absolutely right to stress the defence implications of independence, but there are defence benefits from Scotland being part of the United Kingdom.

The 2015 election was mentioned by my noble friend Lord Crickhowell and the noble Lord, Lord Hennessy. In answer to my noble friend Lord Crickhowell, last Thursday, I had a question from my noble friend Lord Forsyth on what would happen after the vote on independence in September 2014 and whether Scottish MPs would have to leave at that point. I think that that is when I said that they would not need to do so. Obviously, it would be a matter for Parliament to address what would happen in 2016, although I cannot honestly see how people could represent constituencies or a country that no longer belongs to the rest of the United Kingdom. I do not see how that could happen, or how Parliament would deal with that or with the intervening period between the elections in 2015 and 2016. Should that ever happen, I think it would be a matter for both Houses.

I certainly picked up the point made by my noble friend about the idea that we should somehow postpone the United Kingdom general election. Given that the Fixed-term Parliaments Act was on the statute book before the date of the referendum was announced, the Scottish Government had full notice of it. I find it somewhat preposterous that for some reason people in the rest of the United Kingdom should be denied their democratic opportunity to select their Members of Parliament to facilitate a negotiation.

[Lord Forsyth of Drumlean]

Will the Minister deal with the point about the Civil Service Code?

[Lord Wallace of Tankerness]

My noble friend raised an important point on paragraph 14 of the Civil Service Code. When a similar issue was raised during the Scotland Bill debate, I said that, when questions are asked about breaches of the code, there is a process for dealing with that. I do not think that it is appropriate for a Minister at the Dispatch Box to pass judgment on that when there are proper processes. I note what my noble friend says and I am sure that it will be noted by those to whom these matters might properly be addressed. I think my noble friend reflected on the positive things about the union. It was also said by my noble friend Lord Steel.

My noble friend Lord Maclennan talked about a United Kingdom convention and my noble friend Lord Purvis talked about policies of how we might look to the future in our constitutional arrangements. It is important that we look to the future. We should do so and record the strengths of our United Kingdom; namely, those of family and kinship, which were mentioned by my noble friends Lord Cormack and Lord Crickhowell. We should also look at what has been achieved over many years.

Just before I came into the Chamber, my attention was drawn to the second leader in today’s Times. It states:

“Whatever Scotland’s future, it should be a source of pride to everyone in the United Kingdom that for centuries we have made a state of many nations work so well. We have lived together in peace and harmony, never losing our distinct identity yet also forging one together. And we have been strong together, through centuries of continental and global conflict. None of this should be pushed to one side in favour of an argument dominated by oil revenues”.

That is profound advice. I believe that when it comes to it, people will recognise that Scotland is stronger as part of the United Kingdom and the United Kingdom is stronger with Scotland as part of it. I sincerely hope that the noble Lord, Lord Hennessy, will die British rather than as RUK.

Glasgow Helicopter Crash

Lord Wallace of Tankerness Excerpts

Monday 2nd December 2013 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, with the permission of the House, I will repeat a Statement made by the Secretary of State for Scotland in the other place on the helicopter crash that happened in Glasgow on the evening of Friday 29 November. Before repeating my right honourable friend’s Statement, I am sure I speak for all parts of your Lordships’ House in expressing our deepest condolences to the family and friends of those who lost their lives in this terrible tragedy, as well as expressing our own thoughts for those injured and our thankful appreciation of those who have given such valiant service in the rescue operation. The Statement is as follows.

“With permission, Mr Speaker, I should like to make a Statement to update the House on the crash of the helicopter that happened in Glasgow on the evening of Friday 29 November.

As the House will be aware, at approximately 10.25 pm on Friday evening, a helicopter, operated on behalf of Police Scotland, crashed into the roof of the Clutha Bar in Stockwell Street, Glasgow. It was reported that there were around 120 people in the bar at the time of the accident. Police Scotland has overnight confirmed nine fatalities. This includes the pilot of the helicopter and the two police officers on board. A further 32 people were injured in the crash and 12 remain in hospital. Three of these casualties are being treated in intensive care, where their condition is described as serious but stable. The search of the building continues and it remains possible that more casualties could be found.

I am sure that the House will also wish to recognise the outstanding work of the emergency services, for the speed, professionalism and courage of their response on Friday night and into the early hours of Saturday morning. Police, fire and ambulance services all responded magnificently, working in difficult and dangerous circumstances. In particular, we should recognise that police officers had to respond in circumstances where they were dealing, not just with the death of members of the public, but also with two of their own colleagues, PC Kirsty Nelis and PC Tony Collins.

Some of the most remarkable stories of courage and selflessness from Friday night and Saturday morning have come from staff and customers of the Clutha Bar and passers-by who came to their assistance in the immediate aftermath of the accident. They responded with no thought for their own personal safety. Members will know that among them was the right honourable Member for East Renfrewshire who happened to be one of the first to arrive on the scene. The right honourable gentleman is not in the House today, as he is in the Philippines, in the course of his duties as Shadow Secretary of State for International Development. He is characteristically understated in describing his role, but I am sure I speak for the whole House when I say that his response—which was instinctive—did him credit.

I had a meeting with members of all three emergency services in the command centre and I also met with Councillor Gordon Matheson, at the City Chambers where I signed the book of condolence. Glasgow City Council will now take up much of the burden of caring for and comforting those affected by this incident. My right honourable friend the Secretary of State for Transport has also been in regular contact and his department, through the Air Accidents Investigation Branch, now has a duty to investigate and report on the causes of the accident. Investigations of this sort are inevitably complex and can be lengthy. I know that all those affected will be looking for answers but the gathering of evidence, especially at this early stage, will be vital to the investigation. I hope that the police, and other investigatory agencies, will be given the time and space to do their job.

The House will also wish to know that there has been close contact between Her Majesty’s Government and the Scottish Government since the incident. The Prime Minister spoke to the First Minister on Saturday and offered any assistance from the emergency services or other agencies south of the border, should that be required.

I wear today a badge given to me this morning by Councillor Gordon Matheson. It reads, quite simply, “People Make Glasgow”. The response of the people who make Glasgow has demonstrated all the courage and character that has made the city famous throughout the world. We in this House, and the people we represent in communities throughout the United Kingdom, stand in solidarity today with the people of Glasgow as they mourn their loss and start to come to terms with their grief. People make Glasgow: today I wear that badge with pride.”

My Lords, that concludes the Statement.

--- Later in debate ---

[Lord Wallace of Tankerness]

I am grateful to the noble Lord for his comments and for what he has said about the resilience and the spirit of the people of Glasgow. He said that that has been admired throughout the United Kingdom, but it is fair to say that it has been admired beyond the shores of the United Kingdom. As he pointed out, people ran to help in those circumstances rather than running away from danger. The comments from Councillor Matheson that he quoted represent the real spirit of Glasgow.

The noble Lord asked me about when a report might be expected, although he accepted that it is very early days yet. The Air Accidents Investigation Branch deployed a team of 12 people to Glasgow on Saturday morning, which has been assisting the emergency services with the removal of bodies from the helicopter wreckage and in the immediate vicinity. The helicopter has now been lifted from the roof of the bar. I know that the Air Accidents Investigation Branch will want to give an interim report, but it is too early to predict when that will happen.

The noble Lord also asked about assistance to the authorities in Scotland. As I indicated, offers of assistance have been made to Police Scotland. The Government have made such offers to both the Scottish Government and to Glasgow council. As the Statement said, Glasgow council will now bear much of the burden of what happens from here on. We continue to be ready to provide support, if required, in the best spirit of the co-operation at all levels and by all people that has marked the response to this event.

[Lord Forsyth of Drumlean (Con)]

My Lords, I thank my noble and learned friend for his Statement and for the tribute which he rightly paid to the emergency services. Without in any way anticipating the results of the inquiry, it seems that rather a lot of helicopters fall out of the sky these days. We have seen it in the North Sea and not a stone’s throw from here. Would this not be a good time perhaps to review the maintenance regime that applies to helicopters and the rules that surround it? I appreciate that this was a police helicopter and that we do not know the circumstances. However, should we not look at some kind of review of the safety and maintenance standards that are required of helicopters that fly over heavily populated urban areas?

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend for his question. He highlights the fact that there have been some helicopter crashes and fatalities in recent times. Over a long period of time the safety record has generally been good. However, I am sure the whole House will agree that any accident must be thoroughly investigated if lessons can be learnt. It is also important to remind ourselves that helicopters fly many different types of operations and that a helicopter taking large numbers of passengers out to installations in the North Sea is somewhat different from the operation that was undertaken by police and other emergency helicopters in this situation. I am not sure that a generic inquiry would necessarily be the best way forward. However, it is important that there is a thorough investigation of the various accidents that have happened. I am in no doubt that the Air Accidents Investigation Branch and other relevant authorities will try to ensure that that thorough investigation takes place so that we can learn any lessons that are appropriate.

[Baroness Liddell of Coatdyke (Lab)]

My Lords, I am not a Glaswegian. However, all Scotland grieves with Glasgow after this terrible tragedy and is proud of how the people of Glasgow have responded. As parliamentarians, we have in the past few years seen the worst of us. On Friday night, with Jim Murphy, we saw the best of us. We recognise that when a young man puts himself in harm’s way he will live with the memory of that night for the rest of his life.

I will ask the Minister a question, which he may not be able to answer. As we know, these helicopters are used a lot by police and emergency services the length and breadth of Britain and beyond. Given that there is no indication as to what caused this accident and there is no black box recorder, are there any plans to ground these helicopters? If that is the case, what back-up would be available to emergency services throughout the country?

[Lord Wallace of Tankerness]

My Lords, first, I endorse and echo what the noble Baroness said about Jim Murphy. Those of us who saw that interview realised the spirit of someone whom many of us know. It was all too typical of Jim to do something like that. On the particular helicopter—the EC135—as I said, it is obvious that at this stage of the investigation the cause of the crash is unknown. That type of helicopter has been operated successfully, both in the United Kingdom and internationally, and has a good safety record. At this time we are not aware of any information that would lead us to consider this type as unsafe, but if at any time the European Aviation Safety Agency, which has the approval process, is concerned that the aircraft type is unsafe, it can ground all operations. However, that decision has not been taken.

[Lord Purvis of Tweed (LD)]

My Lords, as the son of a long-standing emergency worker, I, too, associate myself with the warm tribute that the Minister, and in another place the Secretary of State, gave to emergency workers across Scotland. Those professionals take extraordinary risks to make sure that we continue to be safe and well. I associate myself and the Liberal Democrat Benches with those remarks. Will the Minister commit the United Kingdom Government to ensuring that whatever review is carried out as a result of those investigations into helicopter flights over cities and rural areas, recommendations are acted upon, because of the necessity of rotary-wing emergency aircraft for Scotland? Will the Minister make sure that those in the Clutha Bar who have been affected by this tragedy are aware that in perhaps their time of greatest need their fellow Glaswegians, their countrymen and women and those across all of these islands stand with them? Will he ensure that the support that is necessary is provided to those who are affected, not only at the moment but for the weeks and months to come, and that Her Majesty’s Government provide support to Glasgow City Council—to endorse the words of the noble Lord, Lord McAvoy—and to the Scottish Government?

[Lord Wallace of Tankerness]

My Lords, on that final point, it is obvious that it has been a pretty traumatic experience for those who were involved. I hope that over the days, weeks and months ahead, they will find strength and comfort from the strong support for them in the community. I repeat that it has been made clear to Glasgow City Council that we stand ready to give such help as may be appropriate. I echo the tribute he paid to emergency workers.

I have heard it said by some who have been there that because of the particular site of the tragedy, the investigation has been one of the most complex they have ever worked on. Those who undertook much of the rescue and recovery work were doing so in dangerous circumstances. That simply underlines the debt that we owe them. Obviously it is premature to speculate on what kind of recommendations would be made. However, I am sure that the recommendations, be they addressed to government or other bodies, are ones that will require to be properly and fully responded to.

[Lord Condon (CB)]

My Lords, does the Minister agree that the caring and compassionate tone set by Sir Stephen House, the chief constable of Police Scotland, and Rose Fitzpatrick, the deputy chief constable, in all of their public pronouncements has helped with the healing process as the brave people of Glasgow as a whole respond to this very challenging and difficult situation?

[Lord Wallace of Tankerness]

Certainly, any public statements I have seen on television by both the chief constable and the deputy chief constable have been exactly that. As I said in the Statement, it is worth reminding ourselves that they themselves suffered the loss of colleagues in this tragedy. Notwithstanding that, they have acted with exemplary professionalism.

[Lord Maxton (Lab)]

My Lords, as an ex-Member of Parliament for one of the Glasgow seats, I take this opportunity to say both that I mourn for the people of Glasgow today and that I am proud of them for the way in which they have reacted to this tragedy. First, it is a compliment in these modern times that there is no photograph of the tragedy because everybody went to help rather than taking out their iPhones and taking photographs. I have a serious question, because it is a very serious moment. The latest reports say that there was no mayday signal from the helicopter before it crashed. Is this correct? Does it not say something about what happened to that helicopter if there was no mayday signal?

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I am not aware of that. It is not a report that I have seen or been made aware of, and therefore it would be wrong for me to speculate. Obviously, matters such as that will be examined, and I have no doubt that information will come out in the days and weeks ahead. However, it would be wrong for me to speculate on what I have not heard.

[Lord Glenarthur (Con)]

My Lords, while entirely joining myself with my noble and learned friend’s remarks about all those who have been affected by this horrible accident, I declare an interest as president of the British Helicopter Association, which is the trade body that looks after operators of all sorts of helicopters, including police helicopters. It is, as my noble and learned friend said, far too early to even begin to speculate on the cause of this accident. It will take some time to establish what it is. It appears to be incredibly unusual, certainly in my experience, for an incident of this sort to arise without any warning whatever apparently—although we do not know if there was a mayday call or not.

Does my noble friend agree that it is perhaps not strictly comparable to some of the incidents that we have seen on the North Sea, which often have occurred for other reasons? Perhaps he would also endorse that the safety regime through the regulators, both the European Aviation Safety Agency and indeed our own Civil Aviation Authority, is of the very highest standard. Certainly in my experience all those concerned with this, including all those who live in populated areas where police helicopters have to operate, must be reassured that these aircraft and their crews operate to the very highest standards, and that no stone will be left unturned in trying to establish the cause of this accident.

[Lord Wallace of Tankerness]

I acknowledge the experience of my noble friend and share his view that it is important. I believe it is the case that the Air Accident Investigation Branch conducts these inquiries and investigations thoroughly and to the highest standards. Once the AAIB has the details on the cause of this tragic accident, it will be a matter for the Civil Aviation Authority to consider what action may be necessary, and to ensure that these matters are proceeded with, regarding the overwhelming requirement for safety in these operations.

[Lord Reid of Cardowan (Lab)]

I thank the Minister for his Statement, and particularly for his generous tribute to our parliamentary colleague, Jim Murphy. Although he is a self-effacing character, in a sense I think he recognised that what he did was pretty ordinary for Glasgow where, perhaps because of the industrial culture and legacy, there is a tendency to run towards the danger when others are in danger. In any case, however it may surprise others, it remains inspiring. I obviously associate myself with the condolences for those who have lost loved ones or family, and those who are injured. I will ask the Minister one question. I understand he said that the search continues inside the Clutha Bar for others who may be there. Does he have any information as to whether there are known and identified persons, without any names, who are still unaccounted for—or is it simply a matter of searching the bar itself?

[Lord Wallace of Tankerness]

My Lords, I note again the point made by the noble Lord with regard to Jim Murphy. I rather suspect that the self-effacing way in which Jim handled the interviews was because he recognised that he was not alone among those who responded to that situation. I cannot, because I do not have the information, go beyond what I said—and what the Secretary of State said when he stood up and made his Statement in the other place—which is that the search of the building continues. I am not aware of the position regarding people who may have been missing and identified. I know some concerns have been expressed by victims, and some frustration. That is totally understandable in the circumstances. Equally, Deputy Chief Constable Fitzpatrick, who has already been referred to, said:

“The uncertainty for the families of those who have died is at the front of our minds … It remains our absolute priority to give clarity to those affected as soon as we are able”.

[Lord Selkirk of Douglas (Con)]

Does the Minister accept that we all wish to be associated with his messages of condolence to the bereaved, and also to those who have been severely injured or injured at all? Can the Minister tell us whether helicopters of this nature possess black boxes, and whether that will be one of the issues to be looked at in the inquiry?

[Lord Wallace of Tankerness]

My Lords, it is the case that this helicopter was not fitted with any cockpit voice recorder, flight data recorder or usage monitoring system. It is important to say that it was not a requirement. Again, it would be wrong for me to speculate on whether that is something that the AAIB will wish to look at in terms of any possible recommendation. I will just make the point at the moment that it was not a requirement for this particular type of helicopter.

Scotland: Independence

Lord Wallace of Tankerness Excerpts

Thursday 28th November 2013 Lords Chamber

[Baroness Seccombe]

To ask Her Majesty’s Government what assessment they have made of the Scottish Government’s White Paper on Scottish Independence.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, the United Kingdom Government have been examining the content of this 670-page document since its publication on Tuesday. The reality is that if people in Scotland vote for independence Scotland’s future will need to be negotiated with the remaining United Kingdom, the European Union and others, with no certainty about the outcome. Although our detailed analysis continues, there is no evidence that the White Paper provides any clarity on addressing such key issues as currency, costings and pensions.

[Baroness Seccombe (Con)]

My Lords, I appreciate that my noble and learned friend may not have had time to assimilate the ramifications of the White Paper, but, as an ardent Conservative and unionist, I strongly believe that we are better together and worry about the effect that independence might have on this Westminster Parliament. The other place would lose 59 Members, but what would be the effect on this House? Would Scottish Peers, as foreign nationals, be able to retain their seats, and would, indeed, my noble and learned friend be here to answer Questions?

--- Later in debate ---

[Lord Wallace of Tankerness]

My noble friend asks a very interesting question. Question 564 on page 558 of the document states:

“Arrangements for the House of Lords will be for the rest of the UK to decide but the House of Lords will no longer be involved in legislating for Scotland”.

My noble friend will understand that we have said, as a Government, that we do not intend to have any contingency planning. I share her belief that we are better together, but it is interesting to reflect that many of us are here as Peers of the United Kingdom. I think that we have to fulfil certain tax responsibilities to remain here. However, I do not think that we anticipate having a House of Lairds in Scotland.

[Baroness Liddell of Coatdyke (Lab)]

My Lords, I have no intention of becoming a foreign national but I have tried to find an answer to the question of what would happen, in the event of separation, to the more than 30,000 Civil Service jobs in reserve departments which are there as a consequence of the dispersal of Civil Service jobs in the 1970s. What is the policy of Her Majesty’s Government on siting Home Civil Service jobs in a foreign country?

[Lord Wallace of Tankerness]

My Lords, other than those staff who are involved in the diplomatic corps I cannot think of any precedent for that. The noble Baroness makes a very important point. I repeat that we are not contingency planning, nor are we, indeed, complacent. However, the parts of the White Paper on current Civil Service jobs located in Scotland that I have seen come to some very glib conclusions on what would happen and do not seem to take account of what those civil servants themselves would wish to do.

[Lord Stephen (LD)]

My Lords, does my noble and learned friend agree that the White Paper contains 670 pages of assertion and fudge on some very big issues indeed rather than frankness and fact? Does he also agree that the people of Scotland deserve a fair and honest debate, not one where vital facts are massaged and manipulated? Ignoring for today, at least, the big issues of the currency and NATO membership, and drilling down on to this issue of EU membership, will my noble and learned friend consider the topical and very recent comments of the Spanish Prime Minister on Scotland’s EU membership? He has made it very clear that the EU does not intend to dance to the tune of the president of Scotland—that was his description of Alex Salmond, not mine. Does my noble and learned friend agree that these are very serious comments which deserve the most serious consideration by the people of Scotland on the issue of fact rather than speculation?

[Lord Wallace of Tankerness]

My Lords, clearly, membership of the European Union, in the event of independence, is a very important issue. The novel proposal made by the Scottish Government is one which we will look at but we do not think that it accords with how any other member state has interpreted Article 48 of the TFEU. In any event, even under the Scottish Government’s analysis, it would require other member states to sign up. We certainly note the comments of the Spanish Prime Minister with considerable interest.

[Lord Wigley (PC)]

My Lords, in accepting that this is a substantial document, as indeed has been recognised by the editorial of the Times, will the Minister assure the House that the Government will bring forward an equally substantial document indicating the prospects for Scotland if there is a no answer in the referendum? In particular, will he spell out the Government’s intentions for the future of the Barnett formula in those circumstances?

[Lord Wallace of Tankerness]

My Lords, I think each of the United Kingdom parties has its own arrangements for looking forward to what would happen in the event of a no vote, but first we have to campaign and win a no vote. The United Kingdom Government have already published, and will continue to publish, some substantial documents analysing Scotland’s place in the United Kingdom, the benefits we derive from being in the United Kingdom and the problems and difficulties that would arise if we became independent.

[Lord Forsyth of Drumlean (Con)]

My Lords, in the event that Scotland votes to secede from the United Kingdom next September, will the general election still take place in Scotland in May of the following year? If so, at what point will those Scottish MPs elected to the House of Commons be asked to leave? If it is before the general election, would it not result in the disintegration of the coalition and an overall majority for the Conservative Party?

[Lord Wallace of Tankerness]

My Lords, there is no end to the ingenuity of my noble friend. Those who have been elected to this Parliament in the other place have received their Writ of Summons. I do not think they have any clause in it that tells them to go. In what we both agree would be the unhappy event of Scotland deciding to leave the United Kingdom, there is no legislation that would stop the general election in 2015 applying throughout the United Kingdom. Those who advocate independence will have to negotiate with the rest of the United Kingdom, and there can be no guarantee of what the United Kingdom Government would be post May 2015.

Public Interest Immunity Certificates

Lord Wallace of Tankerness Excerpts

Monday 18th November 2013 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, public interest immunity, or PII, certificates are ministerial instruments used in legal proceedings where the disclosure of sensitive material would cause a real risk of serious prejudice to an important public interest. Although applications for PII have been made in criminal fraud cases since 2010, I am not aware of any PII applications relating to fraud cases that involved ministerial PII certificates.

[Lord Maginnis of Drumglass (Non-Afl)]

My Lords, is not the noble and learned Lord’s Answer relevant virtually only to the case of Asil Nadir? Is it not ridiculous, and a mockery of British justice, that Asil Nadir came back to this country with all the evidence to clear his name, and that the Serious Fraud Office sought to hide behind more than 35 public interest immunity certificates? The SFO used the international status of the Turkish Republic of Northern Cyprus to avoid going there to examine the books although, 20 years previously, it had already been told by the administrators for Polly Peck that the audited books were in order. Is this not a contradiction of British justice?

[Lord Wallace of Tankerness]

My Lords, I readily acknowledge the determination with which the noble Lord has pursued these matters. As I have previously indicated to him, it is a long-standing convention that applications for PII certificates are neither confirmed nor denied. Indeed, I gave the noble Lord a Written Answer earlier this year in which I set out the reasons for that.

Immediately before coming into your Lordships’ House, I inquired about the status of the Turkish Republic of Northern Cyprus. It is my understanding that these issues were raised during the trial of Asil Nadir and that Foreign and Commonwealth Office officials were examined on the matter. As a matter of general law, the use of a PII to prevent disclosure of sensitive material does not render any trial unfair. Whether materials are or are not disclosed is not a decision for Ministers or for the prosecution; it is the decision of the trial judge. The trial judge will not allow a PII claim to stand if to do so would render the trial of the defendant unfair.

[Lord Carlile of Berriew (LD)]

Does my noble and learned friend agree that the PII ministerial certificates should be used sparingly, if only because they are made without anyone representing the interests of a defendant being present? That places a great burden on the trial judge, who has to second guess what the defence is likely to say on certain issues. It also means that the defence is unable to answer allegations which can easily be made, but which may be incorrect.

[Lord Wallace of Tankerness]

My Lords, as I indicated, in the case of criminal fraud trials since 2010, I am not aware of any case where a ministerial PII certificate has been advanced. I acknowledge that PII certificates are more commonly used in civil cases, and I accept my noble friend’s point, that that should proceed only after very careful consideration.

[Lord Beecham (Lab)]

My Lords, is not the SFO—the Serious Fraud Office—a seriously failing office? What expectations does the noble and learned Lord have of it improving on its rather poor record thus far?

[Lord Wallace of Tankerness]

My Lords, I think that that goes slightly wide of the question asked by the noble Lord, Lord Maginnis. From Written Statements which have been made in the other place by the Attorney-General, and which I have placed in your Lordships’ House, I know a number of steps have been taken recently to improve the operation of the Serious Fraud Office. However, I will ensure that the comments made by the noble Lord are drawn to the attention of my right honourable and learned friend the Attorney General.

Abortion

Lord Wallace of Tankerness Excerpts

Thursday 10th October 2013 Lords Chamber

[Baroness Knight of Collingtree]

To ask Her Majesty’s Government what steps they intend to take to ensure that medical professionals offering to perform abortions on the grounds of gender are prosecuted.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, where it is suspected that abortions are being authorised in circumstances which do not comply with the Abortion Act 1967 and the matter is referred to the police, a full investigation will be carried out. The Crown Prosecution Service will review any cases referred to it by the police in accordance with the two-stage test set out in The Code for Crown Prosecutors. Where there is sufficient evidence for a realistic prospect of conviction and it is in the public interest, such cases will be prosecuted.

[Baroness Knight of Collingtree (Con)]

My Lords, is it not the case that, whatever else can be denied, secondary reasons may come into the decision? However, when the main reason for the terminations about which I am questioning the Government is that the coming child is a female, it seems to me as a human being and a female, as it does to millions of others, that that cannot possibly be right. Does my noble and learned friend accept that those of us who took part in the debates on the Abortion Bill in 1967 did not dream for one moment that it was necessary to put down an amendment to protect girl babies? Had we done so, I do not think that the Bill could ever possibly have been passed. Finally, is it not extremely dangerous that the law of the land should allow killing on gender grounds at any stage?

[Lord Wallace of Tankerness]

My Lords, I know of the long-standing interest that my noble friend has had in this issue, going back, as she indicated, to the passage of the initial legislation. Given the reporting, people might well think that this case was about medical practitioners offering abortion on the basis of the gender of the child. In those circumstances, it would seem incomprehensible that the full force of the criminal law was not being brought to bear on a practice which most of us would consider abhorrent. However, if one reads the full note provided by the Director of Public Prosecutions earlier this week, which I will make available in the Library, one will see that on the facts of the case it would not have been possible to prove that either doctor authorised an abortion on gender-specific grounds alone. It is a far more complex case than that. Indeed, the criteria used were those set out in Section 1 of the Abortion Act 1967.

[Lord Morris of Aberavon (Lab)]

My Lords, first, there have been differing reports as to whether there was a realistic prospect of prosecution, and I wonder whether the Minister could clarify that again. Secondly, on the public interest point, did the director consult the Attorney-General on this very issue, and what exactly were the public interest points against prosecution in the case which has been very much in the newspapers?

[Lord Wallace of Tankerness]

My Lords, with regard to the first point that the noble and learned Lord raises, the note that the Director of Public Prosecutions has set out indicates that the evidence was not strong and that the prospects of conviction would not have been high but that, on balance, there was just sufficient prosecution to provide a realistic prospect of a conviction. As the noble and learned Lord well knows, there is a second test—the public interest test. The view taken by the Crown Prosecution Service was that the jury would have had no independent yardstick of professional practice by which to assess the facts of the case—hence the need for the greater clarity which is now being sought. On the other question that he asked, the Director of Public Prosecutions did not consult the Attorney-General before the decision was made not to prosecute. My right honourable friend the Attorney-General has obviously had subsequent discussions with the Director of Public Prosecutions in the context of the review and, without in any way wishing to infringe on the independence of the prosecutor, he believes that the decision was taken in a proper and conscientious way.

[Lord Walton of Detchant (CB)]

My Lords, does the noble and learned Lord accept that there are a number of potentially lethal genetically determined diseases which are transmitted by an X-linked recessive mechanism and hence affect only boys? Does he therefore accept that, unless the availability of pre-implantation diagnosis were available, a female carrier of such a potentially lethal gene would be fully entitled to abort an affected male foetus?

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I certainly bow to the medical knowledge of the noble Lord—I do not pretend to come anywhere near it. However, there is reference in the BMA’s code of ethics and law regarding this factor, where there may be issues that could relate to gender and a medical condition. Indeed, my understanding is that in the two cases that have given rise to the current controversy, the patient concerned indicated that she had had previous serious difficulties in a female pregnancy due to genetic abnormalities. That is why it was not possible, in the view of the Crown Prosecution Service, to prove that the procedure was conducted purely on the grounds of gender selection.

[The Lord Bishop of Chester]

My Lords, does not this case, and in particular the letter from the Director of Public Prosecutions, taken together with the overall fact that, I believe, nearly a quarter of recognised pregnancies are deliberately ended in the womb, call for a comprehensive review of the operation of the Act in its entirety?

[Lord Wallace of Tankerness]

My Lords, I am certainly cognisant of the strong views that are held about this Act and its operation. One of the clear things emerging from this case is the great need to have clearer guidance for doctors on how to carry out their functions and the tests that are set down in Section 1 of the Abortion Act. I am confident that that will now be addressed. Certainly, the Crown Prosecution Service stands ready to assist in any way to provide that clarity.

[Lord Steel of Aikwood (LD)]

Does my noble friend agree that it is very difficult to see how any prosecution under the Abortion Act could take place if no abortion has taken place? Does he accept that gender selection by abortion is wholly repugnant and that therefore we must hope that the General Medical Council will issue ethical guidance on this important matter as soon as possible?

[Lord Wallace of Tankerness]

My Lords, I entirely agree with my noble friend that gender selection as a ground for abortion is wholly repugnant. It is quite clear that that is the very strong view of Members of your Lordships’ House. While abortions did not take place in this particular case, attempting to commit a criminal offence—that is, doing something that goes further than just preparing to commit it—is a crime in its own right and it is on that basis that the Crown Prosecution Service looked at the facts of this case. I do not know yet when the General Medical Council will come forward with any revised guidance; I have indicated that I think that it is necessary. However, the Chief Medical Officer will be writing again very shortly to all doctors involved in abortion provision, setting out the Department of Health’s views on sex-selection abortions—making it clear that sex-selection abortions are not acceptable—as well as pre-signing of certificate forms and other relevant issues, highlighting the need for doctors to keep up to date with legal provisions in the Act.

Civil Procedure (Amendment No. 5) Rules 2013

Lord Wallace of Tankerness Excerpts

Monday 29th July 2013 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That the rules laid before the House on 27 June be approved.

Relevant document: 7th Report from the Joint Committee on Statutory Instruments

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I beg to move that the Civil Procedure (Amendment No. 5) Rules 2013 and the Rules of the Court of Judicature (Northern Ireland) (Amendment) 2013 be approved. The Civil Procedure (Amendment No. 5) Rules 2013 amend the Civil Procedure Rules 1998 to make provision for closed material procedures in civil proceedings in England and Wales pursuant to the provisions of Part 2 of the Justice and Security Act 2013. The Rules of the Court of Judicature (Northern Ireland) (Amendment) 2013 similarly amend the rules of the Court of Judicature to make provision for CMPs in civil proceedings in Northern Ireland brought in under the same Act.

I am sure that many of your Lordships present will be very familiar with the background to these rules: the provisions of Part 2 of the Justice and Security Act, which were debated thoroughly and considerably in your Lordships’ House, but perhaps I may set the context. Part 2 of the Act makes provision establishing a closed material proceedings regime for civil proceedings in the High Court, the Court of Appeal, the Court of Session, and the Supreme Court. CMPs allow national security-sensitive material which is held by a party and relevant to the proceedings to be taken into account through its disclosure to the court and a special advocate representing the interests of the other party. The other party cannot themselves see the material.

It is worth reiterating at the outset that CMPs will be available only in civil proceedings—cases where someone is suing or challenging the actions or decisions of the Government. They will not be available for inquests or for criminal trials and will not allow a person to be found guilty of a crime without knowing the evidence against him or her.

A CMP will be available in relation to any proceedings only if the court makes a declaration that the proceedings are ones in which it should be possible to apply to disclose material by way of a CMP. This can happen only if the court is satisfied not only that the material in question is relevant and that its disclosure would be damaging to the interests of national security but that it would be in the interests of the fair and effective administration of justice for a CMP to be available in principle in those proceedings. In cases where the availability of CMP has been requested by the Secretary of State, the court must also be content that he or she has first considered a claim for public interest immunity in respect of the sensitive material in issue.

If those tests are met, the court may—but, equally, may not—grant a CMP declaration which establishes the principle that closed proceedings may be used in the relevant parts of the case where sensitive material would be in issue. Of course, a special advocate will already have been appointed to represent the interests of the other party. The party holding the sensitive material must then apply again for individual pieces of material to be held in closed proceedings and, in each instance, the judge must decide whether or not the disclosure of the material would damage national security. If not, it is heard in open proceedings; and, if it would and should be heard in closed proceedings, whether it may be summarised by a gist disclosed in open—that is, to all parties to the litigation.

Once that stage—known as pre-trial disclosure—is complete, the judge must review the original declaration to ensure that the tests are still met. If not, he must revoke the declaration. Indeed, the judge may revoke the declaration at any point if he or she considers that it is no longer in the interests of the fair and effective administration of justice.

Turning to the specific rules, the rules before your Lordships’ House this evening insert a new Part 82 in respect of England and Wales into the Civil Procedure Rules and make consequential amendments and modifications.

Section I of Part 82 contains rules about the scope, interpretation and application of the part. Rule 82.2 modifies the overriding objective of the Civil Procedure Rules for the purposes of Part 82 by placing a duty on the court to ensure that information is not disclosed where such disclosure would be damaging to the interests of national security and by requiring that the overriding objective be read and given effect in a way which is compatible with that duty.

The overriding objective continues to apply, so the court must still further the objective of dealing with the case justly, but it must also ensure in doing so that information is not disclosed where such disclosure would be damaging to the interests of national security. That, and the rest of Part 82, is, moreover, subject to Section 14(2) of the 2013 Act or in rules made by virtue of them is to be read as requiring the court to act in a manner inconsistent with Article 6 of the European Convention on Human Rights.

A recent briefing published by Justice on the rules appears to suggest that new Rule 82 provides for the overriding objective and other provisions of the Civil Procedure Rules to be set aside. This is not the case. The overriding objective of the Civil Procedure Rules is still applicable, and is still the objective of,

“enabling the court to deal with cases justly”,

and, since the amendments made pursuant to Lord Justice Jackson’s recommendations, “at proportionate cost”. The court is still enjoined to deal with cases justly, subject to new Rule 82.2. It is not enjoined to ensure non-disclosure at the expense of dealing with the case justly.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, first, I thank all noble Lords who have contributed to this debate. As my noble friend Lord Phillips said just now, we are dealing with very sensitive issues, which, in the debates on the Bill during its passage, received considerable attention, not least because of the very fundamental issues of the administration of justice to which they give rise. I think my noble friend Lord Marks of Henley-on-Thames was fair in saying that these rules that we now have are a fair and proper reflection of the architecture and detail of the statute that was passed by Parliament. The fact that it is in the form it is owes in many respects a lot to the work of your Lordships’ House, which the Government had no alternative but to pay heed to after the amendments were passed. The legislation that is in place is the better for that.

A number of important issues were raised. I will try to respond to them but I am conscious that, as the noble Lord, Lord Beecham, said, I spoke without pausing to draw breath. He made a number of important points which I hope I will be able to capture. If I do not cover everything, I will certainly write to him and circulate it to all noble Lords who took part in the debate. I will also address the point he made about the various points in the Justice briefing, although he identified only one or two of those.

Not only was the statutory consultation followed with the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland, but we sought also to allow an opportunity for your Lordships who had comments to feed those in, and for Members of the other place to do the same. I simply do not know whether the Northern Ireland Human Rights Commission was engaged in this, or whether the Lord Chief Justice of Northern Ireland consulted. Certainly, he was under no legal duty under the Act to do so. I can also say that the rules were being prepared as the Bill was going through and had to be very substantially changed in the light of the amendments that were passed. That was probably why they were not available at an earlier stage. Notwithstanding that, there was an opportunity for consultation, and, as my noble friend said, the rules we have are a proper reflection of what is in the Act.

Specifically, the Joint Committee on Human Rights and the Constitution Committee were not consulted. At this stage, when we are dealing with rules, the appropriate bodies of Parliament are the Joint Committee on Statutory Instruments and your Lordships’ Secondary Legislation Scrutiny Committee. Those are the appropriate committees to consider the court rules and, as I said, neither of them wished to draw any particular matter to the attention of the House.

In regard to the important point raised by the noble Lord in respect of Part 36 of the rules, Rule 36.14 provides for costs consequences for a claimant who fails to beat the defendant’s offer,

“unless it considers it unjust to do so”.

Therefore the court will, as set out in Rule 36.14(4), take into account all the circumstances of the case, including information available to the parties, and it is expected that the court will be very alert to any issues that might make it unjust to follow the normal rule where a CMP is involved.

It is also important to say that these rules are not set in stone. While the initial set of rules had to be submitted to Parliament for approval as a requirement of the Act in respect of Northern Ireland and England and Wales, any amendment to the rules will proceed by the normal course of amendment to Civil Procedure Rules. If, at a future date, there were to be a change in the rules as a result of representations, that might well be something that could be included in the annual report to which the noble and learned Lord, Lord Goldsmith, referred.

The noble Lord, Lord Beecham, asked about further amendment; as I said, there is a procedure for that to happen. He asked what other forms of otherwise inadmissible evidence there might be. I recall that we went over this during some of our debates. He will find that the answer is in Section 6(4)(b), which says that,

“a party to the proceedings would be required to make such a disclosure were it not for one or more of the following”.

It may well be that if, for example, there had been,

“the possibility of a claim for public interest immunity in relation to the material”,

which could otherwise have excluded the material from closed material proceedings, that, of course, would not happen as a result of this. Therefore, that is another example, in addition to the obvious one he gave in terms of intercept material.

The noble Lord also asked about the database of closed judgments. The Government have sought to improve the database of closed judgments that is available to special advocates, and that work has been ongoing. I will come in a moment to the other important issues about judgments, which the noble Lord, Lord Pannick, mentioned. Of course, the judge’s discretion is there throughout. Whenever the disclosure has happened under Section 8, the judge is then required under Section 7 to look again to see whether it is still in the interests of the fair and effective administration of justice in these proceedings for the initial declaration for closed material proceedings to continue. Almost every step along the way, the interests of fair and effective administration of justice are brought into play.

The noble Lord, Lord Pannick, referred to the recent judgment of the Supreme Court in the Bank Mellat case. What he said in many respects reflected what was said many times during the debate, not least by me. It was there from the very first Green Paper that the intention of the Government is that closed material proceedings should be used in just a very small number of cases. At the time when the Bill came before your Lordships’ House, in the 12 months from October 2011 to October 2012, the figure of 20 was talked about. I do not have an up-to-date figure, but I understand that it has not changed much. Some cases may settle and new cases come in, but that is roughly the order of the cases. It is certainly our view that these cases should arise only where we believe it is strictly necessary. I do not believe that there is anything in the rules that is contrary to the principles identified by the noble and learned Lord, Lord Neuberger, as President of the Supreme Court. I have no doubt, too, that in considering applications for closed material proceedings, these will be drawn to the attention of whichever judge is dealing with it. I am sure that the special advocates involved will be very astute and keen to do so.

However, the important point is that these will be matters for the judiciary, and the judiciary has indicated in that case at the highest level that the threshold is quite a high one. I have no doubt that in the months and years ahead there will be litigation on provisions of this legislation when there will be an opportunity for judges to indicate—with specific reference to this legislation—how it should be interpreted. However, as I indicated, I do not believe there is anything in the rules which run contrary to the principles that have been identified.

The noble and learned Lord, Lord Goldsmith, asked me about what might be in the review as opposed to just numbers. I will give him an indication. For example, if there were a change to the rules of the court—which would not come before your Lordships, it would come before Parliament—that might be reported. In terms of development there would be an indication from the Secretary of State as to how he sees this law working out in practice. Maybe not in the first year, but after one or two years when there is some experience of how it works. I certainly would not see anything wrong in having a bit of a narrative, which can perhaps be expanded, as is possible consistent with the information and national security. The noble and learned Lord, Lord Goldsmith, also asked me whether the Attorney-General was consulted with regard to the Bank Mellat case. I simply do not know and cannot remember being told. He and I know that there is some delicacy as to what you say the Law Officers have been asked; but his comments about the involvement of the Law Officer comes from a distinguished former Attorney-General, and therefore I will certainly ensure that his comments on this are drawn not only to the attention of my right honourable friend the Attorney-General but generally to those who are going to be involved in these cases.

The further point, which the noble Lord, Lord Bew, made, was with regard to special advocates. I have no detailed knowledge of this, but I have no reason to think that the vetting is any less now. Of course, special advocates in Northern Ireland are appointed by the Advocate-General for Northern Ireland, who is of course one and the same person as the Attorney-General for England and Wales, a position which the noble and learned Lord, Lord Goldsmith, has previously held. Therefore, I think he can be assured that the scrutiny that is applied is done to the highest level. I hope that he has that reassurance.

The noble Lord, Lord Beecham, raised a number of points, and I hope that I have covered most of those raised in this debate. I believe that what we have here are rules that fairly and faithfully reflect the diligence of both Houses of Parliament in putting together a piece of legislation which we all recognise is hugely sensitive. In those circumstances, I commend them to the House.

[Lord Beecham]

My Lords, I am very grateful to the noble and learned Lord and I look forward to hearing further from him on some of the outstanding matters. He may well be right about Part 36 offers—well, of course, he must be right—and that the possible problem that might have existed in relation to costs of a Part 36 application is covered by Rule 36.14, as he says. But of course, that does not leave the party in any better position to assess whether to accept a Part 36 offer. There may not be a cost implication, but he is not in any position to assess the strength or otherwise of a Part 36 offer, which rather distinguishes it from the general case.

I am very grateful to noble Lords who have contributed to the debate, especially to the noble Lords, Lord Pannick and Lord Bew, to the noble and learned Lord, Lord Goldsmith, and to the noble Lord, Lord Phillips, who broadly expressed support for the Motion. The noble Lord, Lord Marks, affects not to understand the reason or terms of the amendment. It is really fairly straightforward, I would have thought. The thrust of the argument that I sought to make, in which I was in various ways supported, is that we are seeing the transposition of a set of rules applicable to immigration cases under SIAC to ordinary civil procedure, as I said in opening the debate. That is the thrust of the first part of the amendment.

The second part of the amendment refers to the points made by the special advocates, to which the noble Lord, Lord Marks, chose not to direct his mind at all. I cited a couple of their concerns, but there were others—and I shall quote them, as we are not holding up a debate on the Care Bill by so doing. For example, among the points that they make, they talked about the,

“inability effectively to challenge non-disclosure … The lack of any practical ability to call evidence … The lack of any formal rules of evidence, so allowing second or third hand hearsay to be admitted, or even more remote evidence; frequently with the primary source unattributed and unidentifiable, and invariably unavailable for their evidence to be tested, even in closed proceedings … A systemic problem with prejudicially late disclosure by the Government … the Government's approach of refusing to make such disclosure as is recognised would require to be given until being put to its election, and the practice of iterative disclosure … The increasing practice of serving redacted closed documents on the Special Advocates, and resisting requests by the SAs for production of documents to them … on the basis of the Government’s unilateral view of relevance”.

These were all matters that were raised, and none of them appears to have been dealt with—

Rules of the Court of Judicature (Northern Ireland) (Amendment) 2013

Lord Wallace of Tankerness Excerpts

Monday 29th July 2013 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That the rules laid before the House on 27 June be approved.

Relevant document: 7th Report from the Joint Committee on Statutory Instruments.

Motion agreed.