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

Baroness Hayter of Kentish Town Excerpts

Wednesday 15th January 2014 Lords Chamber

There is a further point. The amendments to which the noble Lord referred at some length form a package; as he acknowledged several times during our debates, these things are linked. If you make one concession, it has an effect somewhere else. I hope that those who are concerned about the effect of the Bill will realise that this is a complete package, and that by raising the thresholds, the Government have dealt with the points that noble Lords made and therefore that the exemptions they seek are unnecessary. While acknowledging the understandable opposition, in particular of Members on the Cross Benches and in the Labour Party, I hope that they will see that this is a genuine attempt to reach consensus on how elections are conducted in this country. This is now a well balanced set of proposals. Therefore, any further attempt to carry on and unpick them would be disastrous for elections in this country.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I join the noble and right reverend Lord, Lord Harries, in thanking the Government for the sensible and welcome amendments that they have tabled. We have just heard from the noble Lord, Lord Horam. I wonder if when he used the word “harried” he meant someone who had been harried by the noble and right reverend Lord, Lord Harries, but I will leave that to one side.

However, we feel that more changes are needed to the Bill, which we have opposed from the start, for the very cogent reason spelt out by the noble Lord, Lord Cormack: it inhibits the expression of legitimate opinion. Amendment 34 goes to the heart of that. The noble Lord, Lord Horam, spoke about constituencies, which I think is a different issue, but we might be talking about something like the bedroom tax, which the National Housing Federation campaigned against, worried about the rents coming to it. Anyone who followed the Welfare Bill will know all the detail of that, so I will not go through it. Unless we can get rid of staff costs—which I hope we will within the next hour—had the bedroom tax been in the past 12 months, it is very unlikely that the National Housing Federation, which is not a charity, would have been able to campaign in the way that it is telling us its members wanted. That was not in the past 12 months but something like that could have been.

This is legitimate campaigning. Although we have heard statements from Ministers that it was never the intention of the Government that that type of activity would be within the scope of the Bill, I think all of us feel that despite good—or bad—intentions, that is not a sufficient safeguard and clarity should be provided in the Bill along the lines spelt out in Amendment 34.

--- Later in debate ---

[Baroness Howarth of Breckland (CB)]

My Lords, with due respect to the House, as I have not spoken on this, a number of the noble Lords who are proposing the amendment are suggesting that they will not take it forward but that there will be other debates. There are amendments later which are extremely important and vital to the sector if it is to carry out its work. I would be grateful if the House could move on.

[Baroness Hayter of Kentish Town]

My Lords, that being said, I will speak quickly and shortly to say that, while we absolutely understand the desire to stop the bureaucracy being placed on charities, we do not want that for other bits of the third sector either. This is why we want a much more fundamental change which takes them out too. They also use volunteers and have all these problems. We do not think the rest of the voluntary sector should be caught by something which other campaigners will not be. We are, obviously, interested in the Government’s response, but if the issue is simply about dual regulation then there may be a way for the Electoral Commission to devolve its responsibilities in this area to the Charity Commission. However, if it could not answer its phone to the noble and learned Lord, Lord Mackay, last night, I am not sure I would devolve much to it at the moment.

There is a difference: there is an area of activity which is completely legitimate for charities but which will not be covered by the Charity Commission, which only polices charitable law. Even at the moment, under PPERA, there are a whole lot of things which charities are covered by but which are not policed by the Charity Commission, so extra work would be going to them. As the noble Lord, Lord Horam, said, this clause covers work which is completely within their charitable aims and, therefore, eligible under charitable law. To take out one part of the voluntary sector and leave the other in is something we cannot understand. The charities themselves did not ask for this when they gave evidence—oral and written—to the commission chaired by the noble and right reverend Lord, Lord Harries. The Electoral Commission is against it, as are the NCVO and the Charity Commission. There may be a good reason for this: the overwhelming majority of charities that have contacted me are not in favour of it.

As I think the last speaker said, we are very interested in the important issue of staff costs. That is what the charities really want taking out, so I hope we can move quickly to it and the House can have a decision.

--- Later in debate ---

[Lord Cormack]

My Lords, an amendment that can produce a joint letter from the National Secular Society and the Christian Institute clearly deserves careful consideration. When they take into account that the Electoral Commission also believes that there is good sense in this proposal, I hope that your Lordships will feel likewise. I hope that we will not have to exercise ourselves by going into the Lobbies. I hope that my noble and learned friend will be able to indicate at least a significant degree of sympathy with this and, if he cannot accept these precise words, that he will undertake to come back at Third Reading next week with something similar.

[Baroness Hayter of Kentish Town]

My Lords, we also strongly support the amendment. It is not the provision’s intention that we have problems with but its workability. It will add an enormous bureaucratic burden. When people campaign against the proposed path of HS2, flight paths around Heathrow or fracking and so on, that is not divided up by constituency. It is strange that a Government who are cutting red tape elsewhere, and who on Monday said that they could not possibly ask special advisers to list their meetings with lobbyists, seem to want this for really small organisations. Amendment 52, which limits the requirement to telephone calls and literature aimed at households, is immensely sensible. I hope that the Government will do one of two things: either accept the amendment or put off their new rules until after the next election.

[Lord Wallace of Tankerness]

My Lords, we have just had a discussion on constituency limits, and it was also covered extensively in Committee. The House has agreed to a government amendment to remove the post-Dissolution limit to make the provision less complex, yet there remains some concern about it. From what was said in a previous debate, I think that my noble friends Lord Cormack and Lord Tyler believe that there should be some limit on constituency spending. My noble friend Lord Tyler argued for a lower limit but now wants lots of expenditure to be incurred without any limit at all. That is a concern that we have.

It is important to put this in context. Constituency spending limits do not replace the existing controls under the Representation of the People Act 1983. Those long-standing rules stipulate that third parties campaigning for or against a particular candidate may spend only up to £500 in doing so. Other than raising that amount to £700, and requiring records to be kept of such expenditure, this Bill does not affect those provisions.

In contrast to the RPA rules, Clause 28 introduces a new limit on how much a third party that is promoting the electoral success of parties, or candidates who support particular positions, can spend in individual constituencies. As has already been explained, the limit is £9,750. The reason for this amount—which might, on the surface, appear somewhat odd—is that it is equivalent to 0.05% of the maximum campaign expenditure limit applied to political parties. This limit will apply for the duration of the regulated period for a UK parliamentary election.

As has already been rehearsed, the need for constituency limits is profound. It is not right that candidates and parties should effectively be bowled out of the field purely because well funded campaigners are able to outspend them. Elections are the principal domain of political parties and candidates, and those who are not campaigning for their own electoral success should still be able to participate: that is the essence of our democracy. However, in these circumstances, we believe that the voices of such campaigners do not diminish the voices of the political parties and candidates and that constituency limits will ensure that.

The Bill makes clear that a third party’s expenditure would be wholly attributed to a constituency only if that expenditure had “no significant effect” in any other constituency. That means expenditure in a local area could, of course, be attributed to several constituencies if the effect was felt in them all. Expenditure with a wider regional, or even national, reach would be attributed proportionately to all the relevant constituencies.

My noble friend Lord Tyler has proposed an amendment to dampen the effect of these constituency limits. The amendment proposes that only certain costs —in other words, only expenditure related to certain activities—should count towards constituency limits. Specifically, the amendment says that only costs associated with election materials should be counted. That would mean the costs related to leaflets, mailshots and adverts, all of which must also have been either specifically addressed to or delivered to households in a constituency, and unsolicited telephone calls to such households.

I recognise the issue which my noble friend is trying to address, but I believe there are drawbacks. For instance, significant activities such as rallies and events would not be regulated at a constituency level if his amendment passed. I gave some of my colleagues an example of Scottish Liberal Democrat pre-election rallies in Edinburgh East. Anyone who knows Scotland will know that Liberal Democrats would not be spending money in that constituency; no doubt Edinburgh East Liberal Democrats will now write to me and say, “Do not let us down”. That was a national campaign, but an event in my own former constituency could not, by any stretch of the imagination, relate to any other—not even Caithness, Sutherland and Easter Ross.

In addition, material otherwise distributed or displayed would also not count towards the constituency limit. A third party could therefore freely distribute leaflets by hand in a town centre, or, indeed, in shopping areas in different parts of a constituency, in the knowledge that, because they are not being delivered to voters’ homes, the associated costs need not be accounted for in that constituency’s limit.

We are concerned that these are key gaps which would allow a third party to target an area by holding large partisan events, or flood an area by handing out election material in the street or in shopping precincts. Allowing only certain activities to count towards constituency limits would undermine the entire principle of constituency limits, on which my noble friend spoke so eloquently earlier. For that reason, I urge my noble friend to think again and to withdraw his amendment.

--- Later in debate ---

[Lord Harries of Pentregarth]

My Lords, Amendment 52A concerns constituency spending limits. It proposes that the spending limit for constituencies, instead of being 0.05%, is 0.1013%. I think your Lordships are well aware that campaigning groups and charities have found the regulation regarding constituencies exceedingly burdensome and the Electoral Commission has found them unenforceable. We take very seriously all that the noble Baroness, Lady Williams, has said about ensuring that big money does not come in. Nevertheless, we think that the constituency limits are too low. Raising them by this percentage, which reflects the wider percentage of caps, would give that greater degree of freedom which the charities and campaigning groups would like. I beg to move.

[Baroness Hayter of Kentish Town]

My Lords, we have Amendment 62A in this group. In order that the notes in reply can be thrown away, I give notice that I will not speak to it. Essentially, the issues were covered in the earlier group. Nevertheless, we retain our concerns about constituency limits and would very much like to have voted on the previous amendment, but there we are. However, we support the other amendment.

[Lord Wallace of Tankerness]

My Lords, the noble and right reverend Lord, Lord Harries of Pentregarth, has tabled an amendment which would raise the constituency limits from being the equivalent of 0.05% of the maximum campaign expenditure limit applied to political parties to 0.1013%. This would amount to almost £20,000—specifically, £19,753.50. As the noble Baroness indicated, we have already debated the issues on constituency limits. I have explained the necessity of constituency limits being in place. Without these limits in place, a third party could otherwise be able to focus the entirety of its spending power on a small part of the United Kingdom, outspending even candidates and parties in that location. That point was forcefully made by my noble friends Lord Cormack and Lord Tyler. It is important that those limits are set at an appropriate level and it is our view that the noble Lord’s amendment would not be appropriate.

I will not repeat the earlier points. We wish to promote accountability and transparency. Constituency limits relate to campaigning for or against a particular party and instances where a campaign is intended, or may reasonably be regarded as intended, to support groups of candidates who might hold particular views or support particular policies. Where such campaigning is subject to a national limit, it is also right that it is subject to a proposed constituency limit but we believe that that must be at a proportionate level. The comments we heard in earlier debates suggest that the limit we have set is too generous. Indeed, even my noble friend Lord Tyler might think it. However, we think that the limit we have set is proportionate, especially as we have removed the distinction between spending throughout the regulated period and spending during the period between the dissolution and election day. The limits are intended to remove undue influence, particularly by those campaigners who can afford to spend significant amounts of money. I do not believe that the noble and right reverend Lord’s proposal would be proportionate. It could allow substantial sums of money—sums, as we have heard, such as £12,000, which is the candidate’s limit. To have a third-party sum that is almost half as much again does not appear to be proportionate. I therefore urge the noble Lord to withdraw his amendment.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, government Amendment 117 would exclude personal expenses from being considered for the purposes of candidates’ expenses limits at local elections in England and Wales. I do not think that this issue has yet been referred to in any of our deliberations.

The Government have brought forward the amendment to bring greater consistency to the treatment of personal expenses across the different types of election. It will also ensure that the Access to Elected Office for Disabled People Fund can successfully continue operating following the expiry of existing secondary legislation.

The access to elected office fund was set up by the Government to award grants to disabled people who are, or go on to become, candidates at elections. The fund’s grants are intended to help candidates overcome barriers to elected office that might arise as a result of their disability. Currently, such awards from the fund would not count towards candidates’ spending limits at certain elections, as they would be considered personal expenses. Noble Lords will no doubt be aware that personal expenses are exempted from candidates’ limits at certain elections, such as UK general elections, police and crime commissioner elections and Greater London Authority elections, among others.

However, there is currently no such exemption at local government elections. Given the generally low expenses limits that apply at those elections, recipients of the fund are likely to find themselves in the unusual and punitive position of having their entire expenses limit taken up by fund awards. It is a distinct unfairness that disabled candidates should have to account for costs associated with their disability when campaigning in elections. The Government therefore brought forward secondary legislation last year so that fund awards would be excluded from candidates’ spending limits at all elections. That secondary legislation will cease to have effect in June this year. The Government therefore consider that the Bill presents a key opportunity to make such an exclusion permanent, while also rationalising the position of personal expenses across various elections.

Rather than merely exclude disability expenses financed by fund payments from candidates’ limits, as the order does, this amendment instead extends the personal expenses exemption to local elections, including parish and community council elections, in England and Wales. It will cover any disability-related expenses incurred by a candidate personally, regardless of whether they are financed by the fund. This is a sensible amendment. It seems unfair to require that disability costs should count towards candidates’ spending limits at local elections when they are already excluded from certain other elections.

Amendment 127 is a related amendment that will allow the new clause inserted by Amendment 117 to be commenced by order. I beg to move.

[Baroness Hayter of Kentish Town]

My Lords, I simply give the amendment a warm welcome. We previously discussed this with the noble Lord, Lord Wallace of Saltaire, probably in the Moses Room last year, but we had not seen this clever device to add the provision. We should congratulate the Government on finding a nice wheeze for this.

Amendment 117 agreed.

--- Later in debate ---

[Lord Tyler]

My Lords, this will be my shortest contribution through the whole length of this Bill, as I hope the night shift will appreciate. I want to make just one point: I am not sure whether the solution suggested by the noble Lord, Lord Hodgson, is right; I am absolutely convinced that there is a problem. I instance that by saying that, as somebody who has been involved in this area for years, I have never had advice or guidance on the problems that we have heard about so often in recent weeks from anybody in the Charity Commission. The first time that I ever heard from the Charity Commission was at 6.30 last night. There is a clear need for comprehensive, careful and co-ordinated advice from the two organisations. It has not been there in the past. They have not fulfilled their responsibilities to Parliament, to which they are responsible, over many years, and it is about time that they did. Throughout today’s discussion, it has been apparent that this lack of co-ordinated information from the two organisations has been one of the major problems that many organisations have had to face, as well as parliamentarians.

[Baroness Hayter of Kentish Town]

My Lords, I am glad that the noble Lord, Lord Tyler, made that point about the Charity Commission, because no matter how good the commitment, we want to see this co-ordinated guidance. Having this requirement in the Bill would mean that it was not just a promise but an actuality.

In addition to making sure that it happens, the provision would be a signal to the charities, given that they will be caught by new restrictions under the Bill that they have not dealt with before, that the House has taken seriously the need for them to be absolutely clear and for there to be co-ordinated guidance on that. There is no downside to having it in the Bill, so I hope that the noble and learned Lord has one yes that he can pull out of his bag at this stage.

[Lord Wallace of Tankerness]

My Lords, my noble friend Lord Hodgson tabled a similar amendment in Committee and brings forward this amendment to require the Electoral Commission to produce guidance for third parties and for that guidance to be co-ordinated with the Charity Commission, particularly to consider the impact of Part 2. As has been said, the issue was discussed at length in Committee, and it is clear to the Government that there is a lack of understanding among third parties and charities as to exactly what are their responsibilities under existing PPERA provisions—the point made by my noble friend Lord Tyler. That the Bill amends those provisions reinforces the need for clarity. The Government made clear in Committee that the issue of guidance and whether a duty should be imposed on the Electoral Commission would be revisited at Report.

Those are not just honeyed words, because since our debates in Committee, the Government have discussed with the Electoral Commission the importance of its producing clear guidance. It is essential that such guidance take into account the impact on charities in particular. Although charities do not campaign in support of political parties at elections and only two have ever registered as third parties to date, there is still an obvious need to ensure that they fully understand the workings of the new regime—that has been made very apparent during our many debates today—and whether they might be held to account by the new provisions as a result of their activities.

As the independent regulator, it is of course for the commission to provide this guidance, but the Government agree that the views of the charities regulator, the Charity Commission, must also be taken into account. Indeed, this involves not just the Charity Commission but its equivalent in Scotland, OSCR, and the Charity Commission for Northern Ireland. Suitable guidance, particularly aimed at charities, can come only if it is jointly produced.

I am pleased to note what the Electoral Commission stated in its briefing to Parliament. If your Lordships will allow me, I shall repeat the words already cited by my noble friend Lord Horam, because they are important. That is why this is substance, not just words. The commission’s precise words are:

“We are committed to working with the UK’s three charity regulators to ensure that charities have clear and reliable guidance about how to comply with the rules. The Electoral Commission and Charity Commission for England and Wales will produce a joint introductory guide for charities that need to understand if their activities are covered by non-party campaigning rules ... Our guidance will explain key areas of the rules such as deciding what counts as regulated spending, how to manage regulated spending, and how the rules cover co-ordinated campaigning in coalitions”.

The Government welcome that clear commitment. At the big risk of quoting again from the e-mail from the Charity Commission, sent at 18.08 yesterday evening, in that e-mail, under the heading, “Co-ordinated guidance for charities that need to understand if they are covered by the rules”, Mr Rowley states:

“The Charity Commission and the Electoral Commission have committed to producing co-ordinated guidance along with a joint introductory guide for charities ahead of the regulated period for the 2015 General Election should charities not be exempted. We are sensitive to the particular help that some charities may need to comply with both electoral and charity law. In the past we have worked closely with the Electoral Commission to ensure their advice for charities on complying with electoral law and our guidance on charities and political campaigning in an election period is aligned and have continued to work closely together throughout the passage of this Bill”.

The Government will continue in our discussions with the Electoral Commission. We will follow them up, and I am sure that our brief debate this evening will have further reinforced to the Electoral Commission the need for it to provide clarity to campaigners. It is the Government’s view that the Electoral Commission must produce guidance in consultation or co-ordination with the Charity Commission and the other charity regulators in the United Kingdom, particularly with regard to how charities might be required to comply with the regime.

I can see why noble Lords say that there is nothing to be lost by having the provision in the Bill, but when a clear and unequivocal commitment has been made by the Electoral Commission, and by the Charity Commission in the quote I have just read, as my noble friend Lord Horam said, it is unnecessary to put this in the Bill. In the light of these commitments, which I think go further than honeyed words, I ask my noble friend to withdraw his amendment.