Energy Bill [HL]
Debate between Lord Wallace of Tankerness and Lord Hardie(9 years, 2 months ago)
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Lord Wallace of Tankerness
I think that the noble Lord almost makes my point because, as far as I understand what is being proposed by the Government, local authorities which have refused an application before 18 June, but which was subsequently appealed successfully on a decision taken by Ministers, will actually qualify. But an agreement reached by locally elected people and a locally elected planning committee after debate, consideration and engagement with the local community, but where the subsequent consent as part of that route due to the cycle of meetings was not given until after 18 June will not qualify. Perhaps he has done so inadvertently, but the noble Lord, Lord Cormack, profoundly makes the point that we are making. There is an inconsistency and an unfairness in what the Government are proposing. There is inconsistency between Section 36 applications for smaller developments added on to existing developments and those which do not need Section 36 applications. I do not believe that the Government have made out the case for fairness of treatment, given the test which their own Minister articulated yesterday.
I am sure that we will debate the Salisbury convention at some stage, and I hope that we will take note of the report of the House of Lords and House of Commons Joint Committee on Conventions, which sat around 10 years ago. My noble friend Lord Wallace of Saltaire, who was then the deputy leader of my party in your Lordships’ House, emphasised the Liberal Democrats’ view that,
“‘the Salisbury-Addison Convention was an historical negotiation between the Labour Party in the Commons and the Conservative Party in the Lords’ and therefore not relevant to current circumstances”.
We articulated that position almost 10 years ago, and I think that the report itself accepted that things had moved on.
The noble Baroness, Lady Worthington, said that it was an opportunity for the Government to think again. We certainly want to engage with them in thinking again, because I do not believe that what we have at the moment is fair to developers who had a reasonable expectation that a system which was due to close in March 2017 has been brought forward by a year. In the end, as the Government’s own impact assessment states, the central estimate is around 30p on the electricity bill of the average household. Given the potential damage to the industry and the damage that this is doing to investor confidence in other areas of the renewable industry, it is important that the Government should think again. They have not been able to come up with satisfactory ways of addressing some of the many legitimate complaints that the industry has expressed.
Lord Hardie
My Lords, I also want to draw attention to the fact that this legislation is unfair. Contrary to the statement of the Minister in the other place referred to by the noble and learned Lord, Lord Wallace of Tankerness, I would point out that the noble Lord, Lord Foulkes, mentioned an example on the Isle of Skye. Perhaps I may give the House some more detail about it. There is a development on Skye called the Glen Ullinish wind farm which was granted planning consent in March 2015. That was before the general election and may even have been before the manifesto, and it was certainly well within the current deadline. The local community, with one exception, supported this proposal. The developers, Kilmac Construction, have had a grid connection contract in place since 2011 and have been making annual contributions to the grid to secure their position. They would otherwise have constructed the site and made connection to the grid before the deadline of December 2018, but they are not able to do so through no fault of their own. The connection date has been given as 2021 and the reason for the delay is that, to secure the supply in the west of Scotland, it is necessary to reinforce and upgrade 124 kilometres of line in the Highlands, which this project will facilitate. If the infrastructure had existed, the wind farm would have been constructed and connected in time.
These developers have invested over £1 million and a considerable amount of time and effort in securing the necessary planning permission, grid connection contract and land ownership permissions to ensure that they can comply with government deadlines. They have only been prevented from doing so by the grid infrastructure problem. The Secretary of State for Energy and Climate Change has been aware of this case since 1 September 2015, when the developers wrote to her explaining the circumstances in full. Will the Minister tell the House that the Government will extend the period of grace in this very exceptional case, where the developer is unable to comply with the timescale through no fault of its own? If he is unable to give assurance on this, the appropriate course would be, in the interests of fairness, to remove Clause 66 at this stage, to allow the Government time to reflect on this anomaly and introduce an amendment in the House of Commons, if they wish. This would not, as has been suggested, wreck the Bill. It passes it on to the Commons, where proper consideration can be given to this matter which is so important for the people of Skye.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Debate between Lord Wallace of Tankerness and Lord Hardie(10 years, 11 months ago)
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Lord Wallace of Tankerness
My Lords, one of the aspects of the Bill that has received considerable attention and debate during our discussions, not only in your Lordships’ House but with campaign groups, relates to the registration thresholds, spending limits and constituency limits.
On registration thresholds, the point has been made repeatedly that small campaigners who do not incur much expenditure would be brought into the regulatory regime. This would, it has been claimed, impose undue administrative burdens on organisations that are not equipped to handle those responsibilities.
Noble Lords will recall that the Government have been considering this issue for some time. Indeed, my noble friend Lord Wallace of Saltaire gave a commitment on the first day in Committee that the thresholds would be revised. Extensive debate in Committee followed, at which representations were made to either revert to the existing PPERA thresholds, or to raise them further. I am grateful to my noble friend Lord Hodgson and to the noble and right reverend Lord, Lord Harries of Pentregarth, for leading that highly useful debate.
The Government have considered this matter and the appropriate level for registration thresholds further. Amendment 46 proposes to raise the levels to £20,000 in England and £10,000 in Scotland, Wales and Northern Ireland. The noble and learned Lord, Lord Hardie, has tabled an amendment proposing those levels be set at £20,000 for each constituent part of our United Kingdom. I simply observe that the Government’s amendment represents not only a substantial increase from the levels currently in the Bill, but reflects the original structure where the amounts were higher in England than in Scotland, Wales and Northern Ireland, no doubt due to the fact that there is a substantially greater number of constituencies and voters in England than in Wales, Scotland and Northern Ireland. Nevertheless, this is still a significant increase not only for England, but for Scotland, Wales and Northern Ireland, and it doubles the current registration thresholds in PPERA.
These thresholds will effectively exclude from the controls those campaigners who incur only small amounts of money. They will be able to campaign as they currently do, secure in the knowledge that unless they spend a substantial amount of money on controlled expenditure, they will not be subject to any aspect of the regulatory regime.
Bearing in mind what not only noble Lords but people outside sometimes hear in general debates or see in e-mails, it is also important to point out that these are thresholds for registration. It has sometimes been represented that there are limits on what organisations can spend, but the thresholds for registration are consistent with our objective of promoting transparency and accountability. We are maintaining the constituency limit of £9,750 throughout the regulated period to prevent a third party focusing a significant amount of its spending power on a small part of the United Kingdom.
Amendment 46 also specifies that, where a third party spends £9,750 in a constituency, it must register with the Electoral Commission. This is to ensure that the offence of spending more than £9,750 in a constituency is fully effective. I know my noble friend Lord Tyler is particularly interested in that point. As constituency limits apply only in relation to regulated periods involving a parliamentary general election, so the constituency threshold will have effect only in relation to such periods. We recognise that the current draft does not accurately reflect this, and the Government will accordingly bring forward an amendment at Third Reading to correct that.
In contrast, my noble friend Lord Tyler has proposed that rather than require a constituency registration threshold of £9,750, the registration threshold should be only £5,000. Reintroducing a lower constituency threshold than £9,750, as proposed by my noble friend, would only reinsert an extra layer of bureaucracy and confusion, particularly as the Government have also tabled Amendment 53, which would remove a post-dissolution limit of £5,850. The government amendment means that campaigners may spend the entire £9,750 throughout the regulated period, or just in the last few weeks before the election. Having just one constituency limit will be a much more straightforward and easier regulation to follow.
Finally, on spending limits, campaigners and Members of your Lordships’ House have sought to retain third parties’ spending limits at either the existing PPERA amounts, or even beyond those. The noble and learned Lord, Lord Hardie, and the noble and right reverend Lord, Lord Harries of Pentregarth, were clear on this point when we addressed this issue in Committee. The spending limits in the Bill for Scotland, Wales and Northern Ireland have particularly concerned campaigners. It has been argued that third-party campaigning in any part of the UK generally has a fixed cost; leaflets, for example, cost the same whether printed in Wales or England, and billboards cost the same, whether they are placed in Scotland or Northern Ireland. As a result, the spending limits for Scotland, Wales and Northern Ireland were felt to be disproportionately low. It is with that in mind that government Amendment 47 would uplift those limits by an extra £20,000 each. This would mean that there would be a spending limit of £55,400 in Scotland, £44,000 in Wales and £30,800 in Northern Ireland.
The Bill proposes spending limits for each of the parts of the UK which add up to £450,000. It is important to remind your Lordships that while these limits were initially to be over not quite a year—from the day after the European elections—if your Lordships approve our amendment which we will debate later, these will apply over the length of the reduced seven-and-a-half-month regulated period, which is also reflected in another government amendment. In fact, therefore, there is a larger amount in Scotland, Wales and Northern Ireland over a shorter period. Indeed, the amount for England is over a shorter period.
I have previously sought to explain that considerable amounts of campaigning can still be undertaken for that amount. In Committee, I gave the example of £390,000 buying a campaigner 40 million leaflets, a dozen front-page adverts in a national newspaper or even 780,000 telephone calls from a professional phone bank. I hope that noble Lords will agree that these government amendments as a whole will lead to a substantial increase in the registration thresholds and a significant uplift to the limits in the Bill for campaigning by third parties in Scotland, Wales and Northern Ireland.
I note that the noble and right reverend Lord, Lord Harries of Pentregarth, has further amendments on spending limits. I will respond to them when I wind up. I beg to move.
Lord Hardie (CB)
My Lords, before speaking to the amendment in my name, I thank the Government and the noble and learned Lord the Advocate-General for listening to the concerns from all sides of the House about the original proposal in the Bill to reduce the existing thresholds for registration as a recognised third party. The government amendment addresses these concerns and, rather than reducing the limits, they have accepted that the limits should be increased. It is appropriate that tribute is paid to the efforts made by the Government and the noble and learned Lord.
However, Amendment 46 does not address the anomaly that I mentioned in Committee, caused by having different registration thresholds for England and the rest of the United Kingdom. My amendment would remedy that by having the same registration thresholds throughout the United Kingdom. I noted that the Minister suggested that the distinction between England and the rest of the United Kingdom was the larger number of constituencies and voters. It is important to appreciate that there is a distinction that should be drawn between total expenditure by third parties in each constituent part of the United Kingdom, as against expenditure limits that determine whether the third party is required to register for recognition.
I accept that a distinction must be drawn between the various countries when one considers the total expenditure by a recognised third party in each country. That distinction reflects the number of parliamentary constituencies in each country and the greater number of voters in England than in any of the other three countries. That is the point that has been addressed since the 2000 Act, and is preserved in that Act, notwithstanding the amendments, in paragraph 3(2) of Schedule 10.
However, the threshold for registration is different. There is no justification for distinguishing between the different countries in this respect. The distinction was introduced in the 2000 Act, which followed the fifth report of the Committee on Standards in Public Life on the funding of political parties in the United Kingdom, which was presented to Parliament in October 1998. I referred to this in Committee and will not repeat these references. However, in Committee I explained that that report and the Government’s response to it never suggested any distinction between the different countries. There was a reference in a footnote which suggested that the reduced figure of £10,000 across the United Kingdom might be more significant in the three countries other than England, but it did not go as far as suggesting that there should be a difference.
I have been unable to find any subsequent explanation for halving the limit of £10,000 allowed for England in the other countries of the United Kingdom. I do not understand the need for a distinction when it comes to the threshold for registration. It is illogical and risks inhibiting local people from engaging in effective political debate about issues that are of concern in their constituency at a crucial time in the electoral process, by imposing upon them what my noble and right reverend friend Lord Harries of Pentregarth described at Second Reading as a,
“bureaucratic burden on small charities or campaigning groups, especially during the actual election period”.—[Official Report, 22/10/2013; col. 914.]
For example, suppose that a local hospital is threatened with closure and a group of individuals in the constituency wish to make this an issue at the general election but stop short of fielding their own candidate. If some candidates in that election support the retention of the hospital while others do not, the expenditure by the local group will be controlled expenditure. If this occurs in England, the pressure group can spend £20,000 before the need for registration and the administrative burden that entails, but if it occurs in Scotland, Wales or Northern Ireland, it can spend only £10,000. The expenses of running such a campaign in Scottish, Welsh and Northern Irish constituencies will be similar to those in many English constituencies. Do the Government seriously suggest that the cost of transport to meetings or venues of meetings in every English constituency is double that in any constituency elsewhere? In his reply, will the noble and learned Lord the Advocate-General explain the justification for this distinction?
My final point is that my amendment is not academic. Apart from being fair to all people across the United Kingdom who wish to campaign in the course of a general election about a matter of local importance to them, there is also a question of perhaps greater significance: that the consequences of not registering but exceeding the registration threshold are a criminal offence under Section 94 of the 2000 Act. Why should electors face prosecution in Edinburgh, Cardiff or Belfast for spending £6,000 on a campaign without registering as recognised third parties but have immunity in Newcastle for identical activity?
Lord Wallace of Tankerness
My Lords, I do not think that there is an anomaly. One of the reasons for putting in the registration requirement was to try to address the kind of anomaly that my noble friend mentions. We share the same objective and if he thinks that there is a loophole there then I will certainly make sure that we look at that, because these provisions have been worked up over recent days. I think that it is okay, but it is probably quite good counsel that we should check to make sure that that is in fact the case.
The noble and learned Lord, Lord Hardie, made his case for having similar registration thresholds in Scotland, Wales and Northern Ireland as in England, and I can see some force in what he is saying. He says that he has not been able to divine why there has been a difference, which has been in place since the very outset. Since PPERA, a distinction has been made: it was £10,000 for England and £5,000 for Scotland, Wales and Northern Ireland. I will not allow myself the cheap debating point that that was what the noble and learned Lord proposed in Committee, but I think that his purpose behind that was to make sure that the Government considered the threshold properly.
It is interesting too—I will finish this point and then let the noble and learned Lord come in—that what is actually proposed by the Government is also the architecture proposed by the commission chaired by the noble and right reverend Lord, Lord Harries of Pentregarth. The commission report proposes £20,000 for England and £10,000 for Scotland, Wales and Northern Ireland.
Lord Hardie
I was going to say that I would not add such an adjective. The noble and learned Lord will remember that I tabled two amendments: the first was to preserve the status quo and the other was to seek an increase in the limits. As the noble and learned Lord has much more experience in political matters than I have, he will appreciate that it is useful to have a stop-gap in case the main objective is not achieved. In relation to the comment about the point made by my noble and right reverend friend Lord Harries, the noble and learned Lord might remember that, in Committee, when the noble and right reverend Lord was speaking, having heard my suggestion that there should be uniformity for registration levels, he indicated that he thought that there was some force in that and that it had not been a point considered by the commission.
Lord Wallace of Tankerness
My Lords, I was going to say that I was aware that the noble and learned Lord had also tabled an amendment in that group to raise the threshold to provide an equalisation—at, I think, £25,000 if my information serves me correctly.
It is a fair question as to why there is such a difference. I think one of the reasons, which I gave at the outset, is that there is a difference in the number of voters and number of constituencies. It is also the case that spending of less than £20,000 could have a more significant impact in, say, Northern Ireland, which is a very compact area with a very focused media. Spending of less than £20,000 could have a much more significant impact there than in England, and I suspect that the different political and media circumstances was one of the considerations as to why the difference came about in the first place.
There are one or two points made by the noble and learned Lord that I could not quite follow. He said that if there was a hospital closure in a particular constituency, a pressure group could spend up to £20,000 in England but just under £10,000 in Scotland. Of course, following on from the debate that we have just had about constituency limits, they would be restricted to £9,750 in Scotland, Wales, England and Northern Ireland regarding the kind of example that he gave. He suggested—I apologise if I misheard him—that someone could be prosecuted for spending £6,000 in campaign expenditure in Edinburgh but not in, for example, Birmingham. I think that he will accept that, with a £10,000 threshold, that would not happen in either Birmingham or Edinburgh. I do not think that I misheard him, but sometimes people get that impression and suddenly there are concerns.
Lord Hardie
The noble and learned Lord is correct; it was a mistake on my part, I should have said £12,000. The point was that it is simply over the limit in Scotland but under the limit in England.
Lord Wallace of Tankerness
My Lords, we recognised the core expenditure that was needed in Scotland, Wales and Northern Ireland in order to mount campaigns and that has been reflected by—for the first time, actually—making a distinction and giving an uplift for Scotland, Wales and Northern Ireland over and above the percentages that have otherwise been applied.
The noble and right reverend Lord, Lord Harries of Pentregarth, proposes reverting to the total national spending limit of £988,500. As I have explained, the Government have brought forward amendments to increase spending limits for Scotland, Wales and Northern Ireland but, as I explained in Committee, only a few political parties at the last general election spent more than £390,000—the total now would be £450,000—on the full range of activities that we now wish to extend to third parties. Only the Conservative Party, Labour Party, Liberal Democrats and UKIP spent more than £390,000 and, I assume, more than £450,000.
As my noble friend Lady Williams said, there are risks associated with allowing third parties to incur vast amounts of spending. Given that third parties campaign for or against electoral success of political parties, it is a very reasonable assumption that a relationship can and does develop between some third parties and political parties. This opens up the potential for supporters of political parties to demonstrate their backing by diverting their funding to an aligned third party and away from the political parties themselves, which have their own limits. I do not think it is right that, where limits are imposed on political parties, they can be circumvented in this way.
Even the limits that we have allow very extensive campaigns to be mounted. I do not wish to indulge in too much repetition, but £390,000—and of course it has gone up by £60,000—is 40 million leaflets, a dozen front-page adverts in a national newspaper, or 780,000 telephone calls from a professional phone bank. These are not insignificant campaigning activities and I therefore believe that the judgment that we reached in coming to these figures is the right one.
I therefore urge the House to support the Government’s amendments with regard to thresholds and I invite noble Lords not to press their amendments.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Debate between Lord Wallace of Tankerness and Lord Hardie(10 years, 11 months ago)
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Lord Wallace of Tankerness
I am grateful to my noble friend for asking that question. I have not said that we will publish the minutes of meetings; the example I gave showed that we would record the detailed nature of what the meeting was about. I hesitate to use the word “subject matter”, because until now that term has also covered “catch-up meetings” and “introductory meetings”. It is not anticipated that we would publish minutes of such meetings. If a meeting had taken place on fracking, I do not think that any clarification would be needed between the Minister and the company as to whether the meeting was about fracking. It is not proposed that minutes would be made available, but there may be other ways—under, say, freedom of information provisions—in which other information might become available. None the less, what we are committing to today takes our commitment as a Government that much further. Ours has been a listening response, and I believe that it will do far more for transparency than—
Lord Hardie
Can the Minister help me in the following regard? He relies upon the fact that a system of recording meetings has been introduced. That is, of course, very welcome. He gave the example of a meeting with Mr Clancy of the Law Society of Scotland—and I am sure that he and his officials are very diligent in recording such meetings. However, what if we have a Minister or officials who are not as diligent and who perhaps record it as a meeting with Mr Michael Clancy full stop and do not explain who he is? Clearly, if Mr Michael Clancy is a lobbyist and my amendment is accepted, the cross-reference of the register will identify who he is and what his interests are.
Lord Wallace of Tankerness
My Lords, I hear the point that the noble and learned Lord is making. As I think my noble friend indicated, if the register is anything like the Canadian register you may have difficulty finding out who it is. However, more importantly, the transparency part of it comes in because of what Ministers would be obliged to put in their scheme. There is an ethics and propriety department in the Cabinet Office. I assure the noble and learned Lord and your Lordships’ House that when we submit our returns that department can get back to us. If we just put “Mr Michael Clancy” and there is no indication of who he is, we will be pushed to elaborate on that.
The noble Baroness said that, if a defence contractor was involved, we would not necessarily know that. In fact, under the publication scheme, the company’s name would have to be given. If that company was a defence contractor and the meeting was about the provisions of the defence Bill that is before your Lordships’ House, such information would be far more relevant, transparent and informative for the public than just giving the name of an employee of that particular company. Therefore, I ask the noble and learned Lord to consider whether his amendment advances transparency at all, given what I have indicated that the Government are willing to do, and whether it would lead to considerable uncertainty. Indeed, if it took the matter as far as the Canadian experience, it could, through an overload of information, be even less effective in promoting the transparency that we both wish to see.
Lord Hardie
I am grateful to noble Lords for their contributions to this short debate and to those who have spoken in support of the amendment. As regards the noble and learned Lord’s criticism that the amendment does not include a definition of professional lobbyists, I would say two things. First, is not that definition self-evident from the words “professional lobbyists”? Is it not a similar situation to that of a solicitor who is a lawyer performing legal services as either an employer—a principal—or as an employee? Equally, is not a professional lobbyist someone who lobbies as part of his profession as either a principal or as an employee? As regards the noble and learned Lord’s difficulties with the definition, what efforts have the Government made since the very full debate we had in Committee to try to come up with a definition? If that is a difficulty for the Government and this amendment is carried, perhaps they could put in a definition, although I do not think that is necessary.
Lord Wallace of Tankerness
The noble and learned Lord asks a fair question. The answer is that that is not the scheme that the Government have been following. We did not think that we needed to produce a definition of professional lobbyists. I ask him to reflect on the fact that if the managing director of a large drinks manufacturer were to meet the Secretary of State on a particular issue—for example, minimum unit pricing—I do not think that one would consider that person to be a lobbyist. Why should it matter that the name of a lower-ranking official in a company who lobbies on behalf of the company is in the public domain but not that of the managing director, when the information that the public want relates to the latter? I have said that we are willing to give that information, because a Minister would have to say that he had met the managing director of company X to discuss minimum unit pricing. Surely that is a much better route to transparency than putting the name of a much lower-ranking official than the managing director.
Lord Hardie
I take the noble and learned Lord’s point but it is not an alternative: it is not either disclosure by the Minister or registration. The transparency arises from the combination of the disclosure by the Minister and the registration, and the ability of the public to cross-reference the two to see precisely on whose behalf the lobbyist is speaking.
The noble and learned Lord also mentioned cost and referred to the Canadian system. He will be aware that the system has to be cost-neutral. The cost would be met by the various people who had to register. Of course, the larger number of entries in the register would—or should—offset the increased cost.
The professional body, the Public Relations Consultants Association, supports this amendment. Although it currently operates the voluntary register, it sees the benefit in having a statutory register provided that that register covers all in-house lobbyists as well. As I said earlier, some of the register already includes entries relating to in-house lobbyists. The noble and learned Lord also referred to charges, but there are already charges on the existing voluntary register. In all the circumstances, I wish to test the opinion of the House.
Lord Wallace of Tankerness
My Lords, the noble Baroness says that they are not asking to include all civil servants’ meetings with everyone, but the amendment does say all civil servants, although I admit that she says that it would cover any lobbyist who met civil servants. As for Ministers’ reporting regime, we have said that Ministers will report the people with whom they have had meetings whether they are lobbyists or non-lobbyists. To further subdivide that would be a considerable burden on 450,000 civil servants. I do not believe that it would add to the transparency that we have tried to enhance and improve by what we have already done as a Government, some of which has been unprecedented. I think that the noble and learned Lord is seeking to intervene.
Lord Hardie
I am grateful to the noble and learned Lord. The point that I am seeking to make in this amendment is that one has to go back to the definition in Clause 2. In the terms of that definition, it is people who fall within the category of persons carrying on the business of consultant lobbying who have to register under Clause 1. Clause 2(1)(a) states that they are required to register if, in short,
“in the course of a business and in return for payment, the person makes communications within subsection (3)”.
It is the communications that we are addressing. Subsection (3) states that the communications are,
“oral or written communications made personally to a Minister of the Crown or permanent secretary relating to”,
the various matters mentioned. I think that second Permanent Secretaries are on the list of people in the schedule.
The point of this amendment is to highlight that the narrow definition of people to whom communications are being made which require registration on the part of consultant lobbyists renders the whole concept of registration almost worthless because, as has been clear from the contributions across the House, these people are not just lobbying Ministers. To get round that, a lobbyist who lobbies a special adviser or a civil servant concerned with policy would not be required to register.
Lord Wallace of Tankerness
I think I understand the point that the noble and learned Lord is making about the requirement to register if you are making communications with these people. It may be that that would bring more names on to the register—I simply do not know—but to enhance transparency, the complement to such an extension would be the introduction of meeting reporting obligations on these public officials. Otherwise you have a list of names of consultant lobbyists and their clients but there is nothing there to which you can then relate them. It becomes fully meaningful only if you have that complementary extension of the scheme. On the amendment, I sought to make the point that that would be a huge burden and one that would not be consistent with efficiency in government; nor indeed would it be proportionate to improving transparency.
Lord Wallace of Tankerness
On the second point, I was responding to the amendment as it is tabled, which does not narrow it down at all to senior civil servants—it applies to all civil servants. I am sure that bodies make arrangements with junior officials as well as with members of the senior Civil Service. On the issue of special advisers, I cannot elaborate on what I have already said.
Lord Hardie
I am grateful to noble Lords on all sides of the House for their support for the amendment. I realise that the noble Lords, Lord Tyler and Lord Turnbull, suggest that the matter should be confined to special advisers. However, as I said in Committee, when I was in practice at the Scottish Bar I was standing junior counsel to the City of Edinburgh district council, and then, latterly, senior counsel—and it was clear from my experience there that it was not the senior director of administration or the director of planning who was the subject of contact by people seeking to influence policy. The contact was with the local authority officials—in this context, the civil servants—who were concerned with the formulation of policy. It strikes me that to exclude the very policymakers, whether civil servants or special advisers, makes nonsense of the registration process. I therefore beg to test the opinion of the House.
Lord Hardie
My Lords, in moving this amendment, I declare an interest. As I explained in Committee, I am a member of the All-Party Parliamentary Group on Taiwan and have received hospitality from that Government in the form of social events. Several years ago, I visited Taiwan on two occasions as a guest: the first was as part of a judicial delegation from Scotland and the second was as a lecturer at an international conference. As I advised the registrar of interests last week, I have now been invited to speak at another conference next month, and my expenses will be paid by the Taiwanese Government. It is a legal conference.
Paragraph 3 of Schedule 1 excludes from lobbying activities communications from an official or member of staff of a sovereign power. In Committee, I sought clarification on whether that included countries such as the Republic of China (Taiwan), which is not a member of the United Nations and with which we have no formal diplomatic relations, although we do have an office and a representative there and it has offices in this country. The Minister promised to write to me. I received a letter dated 7 January from the noble and learned Lord the Advocate-General to the effect that communications from any foreign Government, irrespective of their country’s membership status with the United Nations or its diplomatic status with UK, would not meet the criteria for lobbying for profit in Clause 2.
In view of that response, it seemed that paragraph 3 of Schedule 1 was unnecessary, and I wrote accordingly to the noble and learned Lord. I received a reply dated 9 January, in which he confirmed that communications from foreign Governments,
“will not be captured by the definition of consultant lobbying outlined in clause 2”.
However, he added that paragraph 3 of Schedule 1,
“provides helpful clarity, especially to international colleagues, in relation to the application of the register and it is not our intention to remove it by amendment at Report stage”.
It seems to me that Clause 2 should be sufficient assurance to sovereign powers, and the addition of paragraph 3 may have the unintended consequence of causing concern for foreign states that are not sovereign powers. For that reason, the amendment seeks the removal of this paragraph.
In moving the amendment, I seek clarification from the noble and learned Lord as to what is meant by the term “sovereign power” in the Bill. Sovereignty would seem to me to include such issues as control over a geographical area whose citizens are governed by its rulers, whether they have been democratically elected or not. Taiwan is a democracy whose citizens enjoy universal suffrage from the age of 20. There are elections for the President and the legislature every four years. The President can hold office only for two successive terms. The Government pass legislation and govern their citizens, and Taiwan has diplomatic relations with a number of countries, including the United States of America. Does the noble and learned Lord accept that sovereignty does not depend upon membership of the United Nations or having diplomatic relations with the United Kingdom? In those circumstances, will he confirm that Taiwan would satisfy the test of sovereignty for the purpose of this provision? Even if Taiwan does satisfy that test, what about countries which do not? Which ones are they? Does the inclusion of sovereign states not cause concern for those countries which do not come within that category? I beg to move.
Lord Wallace of Tankerness
My Lords, the noble and learned Lord, Lord Hardie, has moved an amendment which would delete paragraph 3 of Schedule 1 and, as such, remove the explicit exemption from the requirement to register for members of staff and officials of sovereign powers and international organisations.
As the noble and learned Lord very fairly explained in moving his amendment, we have been in correspondence over the past week on this matter. The Government believe that, by establishing a statutory register of consultant lobbyists, this part of the Bill aims to make clear whose interests are represented by consultant lobbyists when they meet Ministers and Permanent Secretaries. It is not our intention that the register should capture international or diplomatic communications by representatives of foreign Governments or authorities or of international organisations. Communications made by representatives of foreign Governments or authorities will not be captured by the definition of consultant lobbying, as the noble and learned Lord has said, as they will not meet the criteria outlined in Clause 2 and the associated schedule. Those include, among other things, that lobbying must be done,
“in the course of a business and in return for payment”,
and,
“on behalf of another person”.
However, out of an abundance of caution, the Bill also includes a specific exemption in paragraph 3 that explicitly excludes officials or members of staff of sovereign powers and international organisations from the requirement to register in respect of their communications to UK Ministers and Permanent Secretaries.
Noble Lords will recall that Schedule 1 provides a number of explicit exemptions that are designed to provide absolute clarity regarding the application of Part 1 provisions. Those exemptions include one specifically excluding parliamentarians from the scope of the register. Although the Government have been absolutely clear that communications made by parliamentarians to the Government will not be captured by the Clause 2 provision, I understand that, none the less, noble Lords and Members of the other place have been particularly grateful for the extra clarity and reiteration provided by paragraph 4. Paragraph 3 is intended to provide equivalent clarity to sovereign powers and international organisations and the Government are not persuaded that it should be removed.
The noble and learned Lord asked specific questions regarding Taiwan. I am sure that he and perhaps other Members of your Lordships’ House would agree that the Report stage of the transparency Bill is perhaps not the most appropriate forum in which to discuss matters of international diplomacy. Indeed, if the noble and learned Lord wishes to pursue the issue, he may wish to take it up with my colleagues in the Foreign and Commonwealth Office. In these circumstances, I ask him to withdraw his amendment.
Lord Hardie
I am grateful to the noble and learned Lord for putting those remarks on the record and, in the circumstances, I seek leave to withdraw the amendment.
Lord Hardie
Perhaps I can answer the noble Lord, Lord Campbell-Savours. In the debate about the first amendment today, I referred to how the PRCA requires people who sign up to the voluntary register to sign up to the code of conduct, which has strong enforcement of regulations or provisions. My point earlier was that if that disappears and there is to be a statutory register in place, it would be appropriate that we have something which is at least as good, not something that detracts from the current position.
Lord Wallace of Tankerness
My Lords, I appreciate the welcome given to the government amendments by the noble Baroness, Lady Hayter, and my noble friend Lord Tyler. As I indicated, we listened carefully to the debate in Committee. We have responded by tabling these amendments, which will require consultant lobbyists to state in their register entries whether they subscribe to a publicly available code of conduct in relation to their lobbying activity and, if so, where a copy of the code can be accessed.
The Opposition’s amendments, spoken to by the noble Baroness, Lady Hayter, would require that lobbyists declare on their register entry which publicly available code of conduct they subscribe to, implicitly requiring such a subscription in order to register. The Government are not persuaded that the amendment is appropriate. Moreover, there is no provision that would require compliance with such codes or provide for enforcement.
The objective of the Part 1 provisions is to enhance transparency and scrutiny. We are not seeking to regulate behaviour. The noble Baroness mentioned the exchanges she had in Committee with my noble friend Lord Wallace of Saltaire about lobbyists who breach the Bribery Act. Of course, breaches of the Bribery Act are punishable by unlimited fines and up to 10 years’ imprisonment, or both. The Government do not consider it appropriate for a Bill to contain separate sanctions in addition to those already included in the Bribery Act, which are clearly very substantial indeed. It is quite proper that the Bribery Act includes serious and proportionate sanctions but it would not be appropriate for the transparency Bill to duplicate those sanctions. The Government considered the option of including a penalty whereby a person could be removed from the register but concluded that imposing a limitless prohibition on someone conducting their profession was too extreme a penalty.
Requiring lobbyists to declare whether they subscribe to a code will expose those who do not abide by the ethical principles that are so essential to the integrity of the industry. It is not the Government’s intention, however, to introduce a high-regulation regime whereby the registrar is responsible for monitoring and enforcing subscription to, and compliance with, codes of conduct. The Opposition also suggest that the registrar should be responsible for publishing a code of conduct. As my noble friend indicated, that is premature. The Government’s amendments are intended to complement the existing self-regulatory regime, not to replace or undermine it.
To pick up the point made by the noble and learned Lord, Lord Hardie, and the noble Lord, Lord Campbell-Savours, we do not anticipate that lobbying associations such as the PRCA, CIPR and APPC will withdraw their codes. Indeed, the industry has welcomed the link between its codes and the proposed register, which it recognises will enhance the existing self-regulatory regime. That was the feedback we got during the consultation. I heard the noble Lord’s inquiry but I am not aware that any explanation or example was given of circumstances in which a firm would not register. Rather, the industry anticipates that it will continue with its codes and that the proposed register—and the government amendment—will enhance the existing self-regulatory regime.
Lord Wallace of Tankerness
My Lords, I thank the noble and learned Lord for his amendment. It might be helpful if in response I indicate the Government’s thinking on sanctions and appeals. When considering the most appropriate sanctions in respect of non-compliance with the register, Ministers did consider the option of removing a person from the register, thereby prohibiting them or the company from continuing to operate as a lobbyist. We concluded, however, that such a sanction would represent a disproportionate penalty as it would essentially take away their livelihood. There are very few industries where, unless one is imprisoned, one is prevented from carrying out one’s professional activities if one has made errors in the course of doing so, and the Government are not persuaded that the lobbying industry should be singled out for such treatment. The sanctions regime that we have designed is therefore a proportionate one, designed to provide appropriate deterrent against, and punishment for, non-compliance with the provisions of the register.
Clause 6(6) does, however—as the noble and learned Lord has pointed out—provide the registrar with the ability to remove a person from the register. That provision is not drafted as a sanction, but rather as an administrative housekeeping measure to enable the registrar to maintain the accessibility and relevance of the register. The registrar may, for example, wish to remove individuals who have retired, passed away, chosen a change of career, or who work for a company that has been wound up. The noble and learned Lord’s amendment would enable a person to appeal against the registrar’s decision to remove them from the register, as under Clause 6(6).
We do not envisage that the registrar would remove any person from the register unless they were confident that the person no longer engaged, or no longer wished to engage in future, in consultant lobbying. I take the noble and learned Lord’s point that there are potential criminal sanctions attached to it. Obviously, as a former distinguished Lord Advocate, he will know that there is a discretion. Indeed, Clause 12(9) indicates that proceedings for an offence under this part in England and Wales may be instituted only by, or with the consent of, the Director of Public Prosecutions, and in Northern Ireland by or with the consent of the Director of Public Prosecutions for Northern Ireland.
Therefore, if a person was to find that they had been wrongly removed, if they wished to object, they could immediately advise the registrar that they were still living, or that they had not given up consultant lobbying, and accordingly the registrar could reregister that person without the need for an appeal and without any difficulty. If they remained dissatisfied in spite of the fact that they could prove that they were still living and consulting, it would be possible to judicially review a decision, although that is very unlikely given the much simpler course of reregistering.
The important point is that this is not intended as a sanction or a penalty, but rather one of administration where the company or the individual is no longer believed to be performing the role of consultant lobbyist. Therefore in those circumstances, if a person becomes aware of that and wishes to challenge it, the best and most simple thing to do is to ask to be reregistered rather than to go to some expense in seeking an appeal to a tribunal.
I hope that the noble and learned Lord is reassured by that explanation. This provision is not intended as a sanction and I invite him to withdraw his amendment.
Lord Hardie
I thank the noble and learned Lord for that explanation. I simply comment in passing that if it got the stage of having to have a judicial review, then that is a sledgehammer to crack a nut. But in all the circumstances I beg leave to withdraw the amendment.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Norton for moving his new clause, which would require the Government to publish alongside any statement on a matter of policy, legislation or a contract or grant records of any oral or written communication directed to a Minister, the Minister’s Parliamentary Private Secretary or special adviser, and any departmental civil servants concerned with that matter. This is an issue in which my noble friend has long taken an interest. His amendment would also provide exemptions from the requirement to publish for commercial or security-sensitive material.
I do not think that this is a simple proposition, although I certainly think it is an intriguing one. However, at a time when we seek to ensure more efficient and effective government, one should pause to reflect that a statutory requirement that every oral or written communication received by every civil servant, special adviser, Parliamentary Private Secretary or Minister be recorded, collated and published in parallel with any relevant statement is not as easy and simple as was perhaps suggested.
Not only would the system impose a considerable bureaucratic burden on the public sector but one would wish to consider whether it would lead in turn to an information overload. Publishing information in relation to a very small public policy statement may well have some merit, but the volume of information that the Government would be likely to be required to publish in relation to, let us say, the Budget, the Autumn Statement or the Queen’s Speech could be so overwhelming that any transparency value would be undermined by the inaccessibility and quantity of the information.
The Government’s objective is to provide the public with valuable information which they can utilise to scrutinise our actions and hold us to account. The focus should be on the value of information and the insight it can provide, not on the volume. As I have already indicated, this Government have taken exceptional steps to publicise information about decision-making, and the register is intended to extend that transparency to those who seek to influence decision-makers. It is already standard practice that responses to government consultations are published in full or in summary, and if the public require further information about certain policies or decisions, then they have the right to request that information under the Freedom of Information Act.
I recognise that my noble friend is urging the Government to extend or improve their information publication regime, and I know that this view is shared. However, I hope that the commitments to the improvement of transparency that I made on behalf of the Government during the debate on the first group of amendments will show that not only have we already taken unprecedented steps, but we are furthering them. I recognise and acknowledge that they fall short of what my noble friend is seeking, but I hope he will reflect that to publish the volume which he is suggesting—particularly in circumstances such as the Budget—might not enhance transparency, but could lead to an overload that might not assist those he seeks to help with his amendment. I hope that it will be acknowledged that the Government have already taken steps and are committed to more steps; and that what we are doing will increase the level of transparency more than any previous Administration have done. In these circumstances, I urge my noble friend to withdraw his amendment.
Lord Hardie
My Lords, I seek a point of clarification. In light of the decision of the House to accept the amendment of the noble Lord, Lord Tyler, on special advisers, will the Minister tell the House whether it is the Government’s position that, notwithstanding that decision, the Government have no intention of adding information relative to special advisers’ meetings with lobbyists when the Minister makes his or her return?
Lord Wallace of Tankerness
My Lords, I stand by what I said when I replied to the question asked by my noble friend Lord Tyler in the first group of amendments. Obviously, the Government have not had an opportunity to discuss the matter, as I have been here since my noble friend’s amendment was passed. I have had no opportunity to discuss with ministerial colleagues and others how we will respond.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Debate between Lord Wallace of Tankerness and Lord Hardie(11 years ago)
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Lord Wallace of Tankerness
My Lords, I think I indicated that even with the reduced limits, on the list I have before me there were only two organisations that went above them, one being UNISON and the other being Vote for a Change Ltd, and neither of those got anywhere near the limits set out in PPERA. Even with the reduced limits, most organisations would not get anywhere near them. I take the point made about staffing made by the noble and right reverend Lord, Lord Harries. Even a political party, the Green Party, which fought a fully fledged election campaign, admittedly not in every constituency but one that registered in the national campaign, did not reach the reduced limit. In trying to strike these balances, these limits are not unreasonable.
Lord Hardie
I am grateful to noble Lords on all sides of the Committee for participating in the debate. I hear what the Minister has said about what the effect of these limits would have been had they been applied to the last election and I want to reflect on that. I note also that the noble Lord, Lord Hodgson, referred to the experience of the last general election.
I think that the noble and learned Lord also acknowledged that much of the difficulty might be removed if staff costs were taken out of the equation. Certainly that is a point the noble and right reverend Lord, Lord Harries of Pentregarth, raised just now. I wish to reflect on these matters before Report, but in the meantime I beg leave to withdraw the amendment.
Lord Hardie (CB)
I did not say that. I was not anticipating 650 enforcement officers. I was suggesting that if there was to be contemporaneous enforcement of this provision, it would be necessary to monitor each of the 650 constituencies, and for the appropriate enforcement officer, who might be covering several constituencies, to take action.
Lord Wallace of Tankerness
I accept that clarification and apologise if I misrepresented the noble and learned Lord. As I think my noble friend Lord Horam indicated, the current political parties expenditure rules are not always the easiest to enforce. Very often the best enforcers are the opposition—because, as those of us who have had active experience of political campaigns know, if there is any hint that somewhere or other there has been jiggery-pokery or money spent that should not have been, the candidates on the receiving end will be very quick to alert the regulatory authorities to what has gone on.
The same applies to the question that was raised, quite fairly, about how expenditure could be attributed to a constituency. We believe that it would be in line with the current guidance that attributes spending between different parts of the United Kingdom. Where spending in constituency A has a minor effect in constituency B, the entire spending amount should be allocated to the constituency that it was aimed at. For example, if a third party advertised in a local paper in constituency A that just happened to be distributed in a small part of constituency B, the entire amount should be allocated to constituency A.
That was really brought home to me when the noble and right reverend Lord, Lord Harries, asked, “How would we allocate the timing of the activities of a battle bus?”. I say this with no criticism whatever, but those who have not been involved in party election campaigning do not understand the difficulties that are sometimes experienced by those who have to act as election agents in allocating and working out expenditure returns for those who are involved in it. The noble Baroness wishes to intervene but I am just going to give an example. In 1979, my noble friend Lord Steel of Aikwood, then David Steel, the leader of the Liberal Party, probably introduced the battle bus to British politics. Immediately after that election in May 1979, I was adopted as the Liberal European candidate for the south of Scotland, which included the constituency of Roxburgh, Selkirk and Peebles. I had as my election agent the agent for Roxburgh, Selkirk and Peebles, who had been David Steel’s election agent in the general election that immediately preceded it. He went by the wonderful name of Riddle Dumble, and, as my election agent, he told me, “I’ve got this nightmare of trying to do David’s election expenses return; I have to sit down and allocate the amount of time that his battle bus was in the constituency, and what part of it represented constituency campaigning and what was part of the national campaign”. This is not something that is new.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Debate between Lord Wallace of Tankerness and Lord Hardie(11 years ago)
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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.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Debate between Lord Wallace of Tankerness and Lord Hardie(11 years ago)
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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.