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

Debate between Lord Wallace of Tankerness and Lord Phillips of Sudbury

Wednesday 15th January 2014 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, that has been the legal position since 2000. It is very rare that it would happen but, conceivably, there is a very limited range of activities that could fall within that. It would not be the intention of the charity but it might be reasonably seen by others to be the intention of the charity. It is because of that very limited possibility that it is important to maintain the provision as it is rather than implement the exemption proposed by my noble friend.

[Lord Phillips of Sudbury]

My Lords, I am grateful to my noble and learned friend the Minister for the way in which he summed up the debate. I am grateful to all those who have participated in discussing this important amendment. Given that Third Reading is on Tuesday, realistically there is not time to have the sorts of discussions that some noble Lords have looked for, particularly in terms of the speed at which the Charity Commission will move in relation to these sensitive matters. One has to look to the review of the workings of this legislation in the wake of the 2015 election. That will be vital. Having said that, 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 Phillips of Sudbury

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.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Wallace of Tankerness and Lord Phillips of Sudbury

Monday 5th March 2012 Lords Chamber

[Lord Wallace of Tankerness]

The noble Lord indicated that in his contribution to the debate. I am seeking to reassure noble Lords that that reassurance is there on the substance. In individual cases it will be unlawful for the Lord Chancellor to interfere in any way. Moreover, a number of features incorporated in the Bill provide for transparency and parliamentary oversight.

[Lord Phillips of Sudbury]

My noble and learned friend always speaks with great persuasiveness, but I cannot see any point that he has made that makes the amendments that are being debated a problem for him. Amendment 3 makes the independence,

“subject to any direction or guidance given under subsection (3)”,

which covers one of the points that he made. As I say, there seems to be no argument that I can think of that makes the amendment inconsistent with the framework that the Minister has put forward. If that is right, given the universal anxiety about this point about independence, why in heaven's name not put it in the Bill?

[Lord Wallace of Tankerness]

In fairness to my noble friend, it is a good question, which I have asked myself. The answer, as I have tried to indicate in my earlier elaboration of the structure of the Bill, is that we are not trying to recreate a non-departmental public body. Consideration of whether it would be possible to incorporate the words “independent” or “independence” into Clause 4 as proposed would require us to consider very carefully whether that might inadvertently affect the proposed structure, but in no way does it detract from the heart of this matter. In respect of individual cases, the director of legal aid casework will in no way be subject to the influence or interference of the Lord Chancellor.

We need to try to get that structure right while allowing for the provisions that will be there, as my noble friend picked up and as the noble Lord, Lord Hart, indicated, in the part of the amendment that refers to direction and guidance. If that is combined with the very clear protection given—the freedom from any interference by the Lord Chancellor in individual cases—that gets the structure right without inadvertently affecting the proposed architecture of the Bill.

We seek to supplement this. The new clause that the Government propose in Amendment 5 is intended to provide a statutory requirement for the director to produce an annual report for the preceding financial year, detailing how the director has carried out his or her functions during that time. That would naturally include detail of the director’s interaction with the Lord Chancellor and how the Lord Chancellor’s directions and guidance had been used to guide decision-making over the reporting period. A noble Lord asked whether the director would have a voice. There will clearly be an opportunity for a voice because it will be his or her report that is submitted and subsequently presented to Parliament.

I hope that noble Lords will be reassured that this additional measure will provide further transparency in relation to the director’s functions and help to demonstrate that the prohibition as to interference in individual cases has been and will be adhered to. These are important safeguards to ensure the independence of the director.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Wallace of Tankerness and Lord Phillips of Sudbury

Wednesday 18th January 2012 Lords Chamber

[Lord Phillips of Sudbury]

I am sorry to interrupt the Minister’s flow, but this is a valuable opportunity to get to the bottom of this. From what he is saying, a reckless act on behalf of the state would be neither deliberate nor dishonest. If it was reckless, there would be no redress. Can that be right?

[Lord Wallace of Tankerness]

My noble friend well knows that where recklessness goes into intent is not always very clear. I very much hear the point that he is making; I want to reflect on it. There is a continuum, but I have made it clear that it certainly does not include negligence. That is why we are concerned about “unlawful”, because that opens the provision beyond what is intended and could lead to cases of damages for what are not by any stretch of the imagination serious consequences or serious harm for the individual.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Wallace of Tankerness and Lord Phillips of Sudbury

Monday 16th January 2012 Lords Chamber

[Lord Phillips of Sudbury]

Does my noble friend not understand that a poor litigant simply cannot afford any ATE premium in order to get to the point of knowing whether there is a claim to be made?

[Lord Wallace of Tankerness]

My Lords, the point that we are making is that while the ATE insurance premium is being abolished generally, in the event of a CFA being agreed in a case of clinical negligence, the Government are retaining the recoverability of ATE insurance premiums. These are very rarely paid up-front. I understand that it is almost an insurance of insurance. If the claimant loses, the premium will not be recoverable from the claimant. It is often the case, too, that if it has been recovered from the other side, there is an increase at that time to take account of those cases in which the insurers will not get their premium.

[Lord Phillips of Sudbury]

I need to answer that; I do not think that is right. The position of a poor claimant is that they cannot afford to put themselves in hock for the premium. It is all very well saying that they can pay it later, but if they lose they have to pay it.

[Lord Wallace of Tankerness]

My Lords, I think the position is that if they lose they do not pay it. That is what we are retaining in cases of clinical negligence. In short, poor people will not have to pay up-front for the necessary expert reports in clinical negligence cases.

Fixed-term Parliaments Bill

Debate between Lord Wallace of Tankerness and Lord Phillips of Sudbury

Monday 21st March 2011 Lords Chamber

[Lord Wallace of Tankerness]

Hypothetically, if he was able to do that, it could have happened. In a Parliament with less than six months to go, it is highly unlikely that that would have happened. There has to be a political reality. It was quite clear that that Government had run their course and there was a general view that an election was needed. Therefore, I think it highly unlikely that a new Government would have been formed, and no new Government having received a vote of confidence within 14 days there would have been a Dissolution. That is one set of circumstances. However, there ought not to be a vote of no confidence if that is not the reason behind the consensus that Parliament needs to come to an end and for there to be a general election. Rather than contrive a vote of no confidence, one should have it as a solution but with the threshold set at such a level that it cannot easily be obtained by a single party for political advantage.

In much of the noble and learned Lord’s speech at Second Reading, his main agony about this Bill was that it would be possible for a Government to abuse the procedure and seek a Dissolution, which would defeat the whole purpose of having fixed-term Parliaments. Therefore, we believe that it is appropriate that the Dissolution should be set at a level which has not been achieved by any governing party since the Second World War. I fully accept that we departed from the 55 per cent figure because that was clearly not going anywhere. It was roundly criticised in this House and, indeed, in other places. As I say, I make no apology for having listened to that criticism, reflected on it and come forward with a proposal which still maintains that there should be a vote which could trigger a Dissolution, but one where the percentage figure is much higher to the extent that it would not be achieved by one party alone. That is why that first trigger mechanism—the subject matter of this amendment—is there. The two-thirds majority that is proposed is the same majority required for a Dissolution vote in the devolved legislatures, as set out in the relevant legislation.

[Lord Phillips of Sudbury]

I am sorry to interrupt my noble and learned friend but I think that three times now he has referred to a two-thirds majority. However, it is not a two-thirds majority because that would be two-thirds of the votes cast in the Division. This is two-thirds of the number of Members, including vacant seats. Will he set the record straight?

[Lord Wallace of Tankerness]

I am happy to do so. I think that I corrected myself the first time I got it wrong. I am grateful to my noble friend for reminding me of that. As I say, since the Second World War no Government have been able to command two-thirds of all the seats. This means that Parliament can choose to dissolve itself but Government cannot dissolve Parliament for their own political advantage.

The noble Lord, Lord Howarth, asked why the two-thirds requirement should not be set out in Standing Orders rather than in statute. The two-thirds requirement is set out in legislation as opposed to Standing Orders so that any change to the requirement would have to be made by fresh primary legislation, which would require the consent of both Houses of Parliament, whereas Standing Orders of the other place would require only one House of Parliament to determine that and probably could be amended or revoked by a single simple majority in the other place, and therefore could defeat the purpose of the measure. It is better to have the two-thirds vote set out in statute, which means that it has to be changed by statute. That would involve this House rather than the other place simply determining it by means of its own Standing Orders. It is not appropriate that a significant detail of reform affecting Parliament as a whole with implications for our prerogative should be amended by Standing Orders of one House of Parliament.

The noble Lord, Lord Howarth, very helpfully indicated that he would speak to his Amendments 28 and 29 at the same time. The first of those would omit the requirement for a two-thirds majority while the second would increase the figure to three-quarters of all MPs voting in favour of the measure instead of two-thirds. The reason why we are opposed to the simple majority—it would be a majority in that case—for the Dissolution is because it would undermine one of the purposes of the Bill: namely, establishing a fixed term and removing the Executive’s ability to decide when Parliament should be dissolved. Noble Lords may recall that at Second Reading mention was made of the late Lord Holme of Cheltenham and his analysis of arrangements whereby the Prime Minister can choose the timing of the election. Lord Holme described a general election as,

“a race in which the Prime Minister is allowed to approach it with his running shoes in one hand and his starting pistol in the other”.—[Official Report, 1/3/11; col. 1007.]

I have reflected why he would not have his running shoes on, but he would certainly have the starting pistol in his hands. Unfortunately, Amendment 28 of the noble Lord, Lord Howarth, would preserve the Executive’s ability to decide when a Parliament was dissolved, by providing that a Dissolution motion could be passed by a simple majority.

At the other end of the scale, the noble Lord suggests a majority of 75 per cent of Members who vote. Again, it is not an unreasonable proposition, but I believe that, on balance, the threshold of two-thirds strikes the right balance in providing a safeguard against abuse of the power, while ensuring the effectiveness of the Bill’s provisions. This Parliament passed similar provisions in relation to the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly.

I have sought to explain why there are two mechanisms and how they are different. I indicated clearly that the 55 per cent originally proposed did not find favour. Therefore, it was only right and proper that the Government listened to those views, and we have come forward with two trigger mechanisms—one for when there should be an election, if there is a consensus, and another for when the Government have lost the confidence of the House of Commons. They are different issues that are dealt with separately. Interestingly, the Constitution Committee, whatever other concerns it may have had, thought that the Government’s proposals on the two trigger mechanisms were an appropriate way forward. In those circumstances, I ask my noble friend to withdraw the amendment.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Wallace of Tankerness and Lord Phillips of Sudbury

Monday 14th February 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Phillips for the amendment and I join in the general approbation of it. For all the difficulties that we have had during parts of this Bill, a common theme in all parts of the Chamber has been the importance of participation in the referendum process. As my noble friend indicated, this paragraph of the schedule does that anyway but he has highlighted the way in which it can be done even better. I am grateful to my noble friend for the constructive discussions we have had on this and the result of those is that the Government agree that the proposal adds useful clarification to the Bill, particularly by emphasising the importance of co-ordination and co-operation. I am pleased to urge the House to accept my noble friend’s amendment.

[Lord Phillips of Sudbury]

I am grateful to my noble friend.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Wallace of Tankerness and Lord Phillips of Sudbury

Wednesday 9th February 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Phillips of Sudbury for tabling the amendment. He gave a history of the debate in Committee. We agreed when he withdrew his amendment in Committee that we would have further discussions. I am pleased that we have been able to have those discussions. In Committee, the Government indicated that we were not persuaded that such an amendment was necessary. My noble friend and I have agreed that there was merit on both sides. Our meeting has added clarity. It has put the issue of co-operation right up front. The noble and learned Lord, Lord Falconer of Thoroton, has emphasised the importance of co-operation, with which we all agree, in trying to ensure encouragement of participation in the referendum, usbregardless of which side of the campaign one might be on.

It is a manuscript amendment. If my noble friend is willing to give us the opportunity to reflect on its wording, I very much hope to be able to come back to him with a definitive response during Third Reading. Perhaps he would be prepared to withdraw his amendment at this stage on that basis.

[Lord Phillips of Sudbury]

I am grateful to my noble and learned friend. I assume that there was a clear implication in that—

Parliamentary Voting System and Constituencies Bill

Debate between Lord Wallace of Tankerness and Lord Phillips of Sudbury

Tuesday 1st February 2011 Lords Chamber

[Lord Wallace of Tankerness]

I cannot accept the second part of what the noble Lord has said, because the Government accept that what happened in May last year was serious. There is no doubt about that. Anyone reading this debate would realise that the view on all sides of the Committee is that the situation was serious. I hope to reassure the noble Lord—who accepts that his amendment would not change the legislative basis for that—that there is a distinction to be made, given that it was accepted that in the cases last year the common factor was one of poor planning. In this case, there will be a chief counting officer, who will have a responsibility and already be aware—not least because of the dual role with the Electoral Commission—about the importance of this issue. I am sure the chief counting officer will be well aware of the sentiments expressed and the important and serious points made in this debate. If the noble Lord’s aim was to get a message across, his amendment has provided a very helpful forum and opportunity to get that message across. She has the powers, we believe, to provide the appropriate guidance, the appropriate training and the appropriate support so that these issues will be addressed and the kind of situation that we saw in May 2010 will not arise again.

Against that background, I ask the noble Lords not to press their amendments.

[Lord Phillips of Sudbury]

My Lords, I really did not want to make heavy weather of this amendment, but I have to say that my noble friend the Minister’s response gave a series of legal interpretations with which I have to disagree. It is unfortunate that I have to disagree, but I do, even though I know that he is advised in these matters and one normally accepts such advice to be beyond question.

The first argument advanced by the Minister was that paragraph 10(1) says:

“The Chief Counting Officer must take whatever steps the officer thinks appropriate to encourage participation”.

He said that such a provision allows the chief counting officer to direct the other officers—regional counting officers and so on—as to what to do and how to do it. I think that is simply wrong. There is no implication of a power of direction in that sub-paragraph. His second argument—

[Lord Wallace of Tankerness]

I think that I noted that, when undertaking the responsibility, the chief counting officer can use her power of direction under paragraph 5(5) of Schedule 1 to require action. I think that I emphasised the importance of co-operation—which is both permissible and happening in practice—but I referred to paragraph 5(5) in relation to powers of direction.

[Lord Phillips of Sudbury]

I was coming on to paragraph 5(5), but I am afraid that my first point stands. If the Minister looks back at Hansard, he will see that I am right.

Paragraph 5(5) of Schedule 1 explicitly gives the chief counting officer powers to direct counting officers in the discharge of their functions. I thought long and hard about this and consulted—if he will not mind my saying so—with the noble and learned Lord, Lord Mackay of Clashfern, who knows a thing or two about interpretation. We agreed that the reference there to the power to direct is with regard to the conduct of a referendum. If the Minister looks back on paragraph 5, he will see that it is about the conduct of the poll, the printing of ballot papers, the issue and receipt of postal ballot papers, verification and counting of votes cast—that is, solely and exclusively a power of direction on technical and practical matters.

Lastly, the Minister said that he thought that the situation would be endangered by my amendment because he said that, if there was a right of “knocking heads together” among these five categories of officer, it might involve consultation with outside bodies. However, there is no mandate whatever for that in my amendment. If the Minister says that I have got it wrong—

[Lord Wallace of Tankerness]

I apologise if I did not express the matter clearly. What I said was that one effect of requiring co-operation among certain named bodies is that it might raise a question about whether it is also permissible to consult other bodies that are not mentioned there. In other words, if you are mandated to consult A, B, C and D, it may raise a question if you wish actually to consult F.

[Lord Phillips of Sudbury]

There is no reference in my amendment to consultation. This is a power of facilitation and of co-operation among the five sets of officers mentioned. There is no question of consultation, implied or otherwise. This is solely and exclusively among these five sets of people.

I am not a happy mover, I might say, and I would be grateful before I withdraw the amendment if the Minister would agree that this needs further consultation between us. If indeed his arguments prove to be fallacious—he started by sympathising with the sentiment of my amendment—at least there will be the consideration that a further amendment could be brought back at the next stage.

[Lord Wallace of Tankerness]

I am more than happy to do that. Just looking at it briefly, I think that there is a difference of opinion—not as to intention, but as to our interpretation—and I am more than happy to try to resolve that with my noble friend.

[Lord Phillips of Sudbury]

On that basis, I am happy to withdraw the amendment.