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

Baroness Mallalieu Excerpts

Wednesday 18th December 2013 Lords Chamber

[Baroness Mallalieu (Lab)]

My Lords, I put my name also to Amendments 167A and 167B on which the noble and right reverend Lord, Lord Harries, has just spoken. Essentially they are amendments about registration thresholds and I will confine what I am going to say, quite briefly, to that aspect. It is clearly accepted that the thresholds are going to go up from those proposed in the Bill, which are very low indeed. The question is clearly: how far? If the aim is to catch wealthy organisations and individuals and to prevent undue influence on the electoral process by those with money, the response has got to be proportionate, as I am sure the Minister would accept.

As the noble and right reverend Lord, Lord Harries, said, the mesh of the net has got to be set so that small NGOs and charities can carry on with their campaigning work without being frightened off by the fear of the expense and the staff time that registration and its associated bureaucracy—which I hope later we will cut down to a degree—will entail. The larger organisations are to be caught; the smaller ones should not be, so that they can carry on with their usual activity.

The current thresholds under PPERA have done just that; hence the lack of problems arising from the drafting of the definition. This was revealed only by the most recent consultation, because most small organisations simply did not meet the existing threshold. However, those thresholds will not be enough if the activities covered by the Bill, even the non-contentious ones, are included, as everyone agrees that larger staff costs will be included with them.

I remind the House that the Electoral Commission said in relation to this very aspect that,

“we think the Bill’s Impact Assessment under-estimates both the regulatory burden that the Bill would impose on registered campaigners, and the number of non-party campaigners that may need to register with us as a result of the Bill’s provisions”,

and the lower threshold. The Electoral Commission is going to be faced with a great deal more work.

I am sorry hear to that the noble Lord, Lord Tyler, has been having difficulty sleeping. Indeed, the speech from the noble Baroness, Lady Williams of Crosby, on Monday caused me some lack of sleep. She chided me about what I had said about ogres coming out of the woodwork, so I had a further look at it. Because she has just raised the point now, I will say this. She produced shocking figures about what was going on in America and raised the spectre of this somehow creeping across the Atlantic and affecting our electoral process. No specific evidence has been produced for the need for specific constituency spending limits. The Government have produced no specific examples in defence of their argument on this topic—for example, of disproportionate spending in one constituency that has had undue influence on the outcome.

However, this is not the only piece of legislation that deals with this matter. There is also the Representation of the People Act 1983. Even if there were to be targeting of a specific candidate in a specific constituency, that Act covers constituency spending by candidates and also—this needs to be restated—spending by non-party campaigners who have campaigned for or against a specific candidate. What is more, breaches of the Representation of the People Act are the responsibility of the police to investigate, with all the sanctions that follow from that. The Electoral Commission does not have the enforcement powers for these rules. So, if these people exist, we in this country already have the powers to deal with them and the mechanism to do so.

[The Earl of Sandwich (CB)]

My Lords, I have not been part of the commission, but I support what the noble Baroness, Lady Mallalieu, and my noble and right reverend friend said about Amendments 167A and 167B. I was convinced by these amendments and then, when I heard the noble Lord, Lord Hodgson, with his extraordinary mathematics on inflation, telling us how much it actually costs to put on a show, be it a conference or a different occasion, I was completely convinced. Then the noble Lord, Lord Tyler, said that these things were costing far too much. Has he seen printers’ bills lately and does he know how much 3,000 leaflets will take out of your pocket in no time at all? These figures are still really quite limited, and I hope that the Government have seen sense. I have a feeling that we are not going to hear their answers because they are reserving them all for Report.

The issue I mentioned in relation to Clause 26 was that of smaller charities. The noble Lord, Lord Tyler, was quite right in describing the role of smaller charities. My particular question for the Minister was: what happens if these charities are linked in a coalition? I know that we are going to discuss the coalitions again, but it hinges on this a little bit. Many of these charities which were spawned by the larger charities—Oxfam and Christian Aid—are now growing in their own right but nevertheless have a symbiotic connection and are often seen together in conferences. Will the Government reflect on that effect on smaller charities as well?

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, it is not a subjective test—we made that very clear. The Labour Party did not put a subjective test into its legislation in 2000. It is an objective test. Therefore, to say that it is solely about what a particular third-party organisation aims to do is not a fair representation of what it says. It is about what can reasonably be regarded. That is an objective test, and we rehearsed all the arguments for and against an objective or subjective test. Therefore it is not unreasonable to remind the Committee about what is here in the Act, which is a definition that the Government introduced by amendment in the other place because people clearly expressed that they wanted us to use the tried and tested definition that was used in the elections of 2005 and 2010. However, I accept that there has been a perception of the possibility of a chilling effect. I think I said that on Monday, and I accept that representations have been made to me and to my noble friends.

[Baroness Mallalieu]

In the light of what the noble and learned Lord is saying, could he clarify what the position would be if a charity, or a non-charity, had a core campaign on which it had been working for some time, and during the regulated period the Government of the day, or an opposition party, adopted that policy—or, indeed, adopted a policy directly contrary to it? A party might adopt that campaign objective as policy—or, indeed, a party might introduce legislation affecting it. If the organisation steps up its campaigning because of the change in the political situation, does that core policy not then become something that is brought under the Bill, where it would not otherwise have been?

[Lord Wallace of Tankerness]

I think I addressed that point in our debate on Monday, and I quoted from the Electoral Commission’s guidance on the subject. The noble Baroness’s final sentence was interesting, because she asked what would happen if the organisation stepped up its campaign. I think I gave reasons on Monday why, if an organisation had a campaign that had been going on for many months or even years, and one party subsequently decided to endorse it, that should not affect the organisation. However, if it seized on that development and sought to ratchet up its campaign by several notches, and encouraged—at least by implication—people to vote in a certain way, that would make a difference. That is reflected in the Electoral Commission’s guidance. On Monday we had a discussion on whether it would be better to clarify such things in the Bill or to leave it to guidance. That is a perfectly legitimate question, and as I said then, it is one on which the Government would obviously want to reflect.

[Baroness Mallalieu]

Will the Minister, during the reflective period, focus on the idea of something that suddenly becomes topical because the Government of the day introduce a Bill that does exactly the opposite of what the campaigning organisation wishes to achieve? He talked about “ratcheting up”, or increasing the volume. Surely that would be an inevitable part of campaigning if the organisation were suddenly faced with what it saw as a piece of hostile legislation. Would that organisation not then be able to campaign actively against the measure—although presumably, that is not something to which a Government who were anxious to encourage democracy would object?

[Lord Wallace of Tankerness]

We had a very thorough debate on this subject on Monday; I do not want to go over again everything that I said then, and rerun that debate. I will certainly reflect on what the noble Baroness has said; indeed, I spoke on Monday about some of the clarity sought. I think that the noble and right reverend Lord, Lord Harries, was encouraging me to act, and said that a number of people wanted to put things in the Bill. He listed a number of things, and I said that there had to be a balance between what we put in a Bill and what we leave to guidance. That is a perfectly proper matter for us to reflect on, and we shall bear the noble Baroness’s comments in mind.

I was about to say that charities and other campaigners had expressed fears that because low-level campaigning and expenditure could be regulated as a result of the Bill, small organisations would face a disproportionate reporting and compliance burden. Those concerns have been reflected in most of the contributions this morning. My noble friend Lord Tyler talked on Monday about the balance between transparency and regulation. Almost inevitably, the more transparent we seek to make the arrangements, the greater will be the amount of regulation. That point was echoed this morning by my noble friend Lady Williams.

This is the balance that we are trying to get right. We believe that there should be greater clarity about who is campaigning for the electoral success of parties or candidates—but equally, we do not want small campaigners to be dissuaded from taking part in public debate by fear of having onerous burdens placed upon them. Therefore, in line with what my noble friend Lord Wallace of Saltaire committed in the House on 5 November, as I have said, and, indeed, as I said when opening the first set of amendments on Monday, the Government will bring forward amendments on Report to increase the registration thresholds.

--- Later in debate ---

[Baroness Mallalieu (Lab)]

My Lords, I rise very briefly indeed to support the proposal contained in the commission’s amendment, and simply to say in answer to the noble Lord, Lord Horam, that I am unaware of an example—I still await one, although I have asked a number of times—of where there has been undue influence as a result of excessive spending in one constituency or spending specifically directed against a candidate in the last election. It does not appear to have happened. This is a pretty draconian cut of between 60% and 70%. It is perhaps right that I should simply add that, so far as the commission is concerned and the package that has been spoken of, those figures reflect a period of 12 months. If, as I hope happens, the period is to be reduced to six months, those figures would need to be adjusted accordingly.

--- Later in debate ---

[Lord Harries of Pentregarth]

My Lords, I take seriously what the noble Lord, Lord Tyler, has said and what earlier on the noble Baroness, Lady Williams, said. Clearly, if there is a possibility of abuse, that must be guarded against. The commission takes that seriously. However, we must also take into account a number of other factors, not least that the Electoral Commission regards constituency limits as they are in the Bill at the moment as unworkable and unenforceable. It states:

“In our previous briefings on Part 2 of the Bill we have noted that except in extreme cases, the new year-long constituency controls may be unenforceable within the regulated period, given the difficulty of obtaining robust evidence to determine and sanction breaches”.

That seems to be a key point. If the Electoral Commission believes that these controls cannot be enforced, there must be something fundamentally wrong with the law.

It should also be noted that political parties’ national campaigning during the year before a UK general election is not subject to limits on spending at constituency level. Why is there one rule on this for political parties? Perhaps I can ask the Minister to reply to this. Why, when according to the Bill there is to be a limit on what third-party campaigners can spend, should the political parties have a rule that says that there is no limit on what they can spend in a particular constituency? Furthermore, PPERA did not contain the provision for constituency limits. We have heard a lot about the threat of abuse at constituency level, but there was no clear evidence of abuse at the 2010 general election.

The Electoral Commission states:

“The existing controls for constituency level campaigning are set out in separate rules under the Representation of the People Act 1983 (RPA)”.

These controls cover constituency campaigning by candidates who are standing for election and spending by non-party campaigners who campaign for and against those candidates, as, for example, in “vote for this candidate”. Earlier on the noble Baroness, Lady Mallalieu, made a point of this. Any potential abuses of the kind that the noble Lord, Lord Tyler, and the noble Baroness, Lady Williams, have pointed out are the responsibility of the police to investigate. The Electoral Commission does not have any enforcement powers in relation to these rules.

The main burden of the commission’s report, backed up by a number of vivid case examples, is that it would be impossible to comply with this law because a fair amount of campaigning crosses a number of different constituencies. For instance, the Save Lewisham Hospital campaign operates across three parliamentary constituencies. So far, the campaign has collected and spent around £36,000. The hospital serves a number of different constituencies. How on earth would the campaigning groups involved in the campaign allocate the different amounts of expenditure per particular constituency?

A similar problem arises in relation to Stop HS2. As well as the national organisation, there are 120 local action groups. In the Kenilworth and Southam constituency alone, there are 11 separate action groups. Stop HS2 goes through a whole range of different constituencies. How are the groups that are part of this campaign to allocate their expenditure to the different constituencies? Even if they were able to do that, how would the Electoral Commission be able to enforce it?

I shall not repeat other examples because of the shortage of time. They are all set out at the back of the report. One example relates to stopping climate change. We must take seriously what the noble Lord, Lord Tyler, has said. It may be possible for the Government to bring forward a very sharply focused amendment to deal with that problem. As it stands at the moment, for the reasons I have given, it would be difficult if not impossible for campaigning groups to comply with the law and the Electoral Commission would have great difficulty in enforcing it.

[Baroness Mallalieu]

My Lords, I, too, intend to oppose the Question that Clause 28 stand part of the Bill. I shall be brief.

Clause 28 needs to come out altogether. First, it is written in gobbledegook. At Second Reading I took up some of the House’s time by reading out part of Clause 28. I recommend it to the noble Lord, Lord Tyler, for his insomnia. It is impossible for a criminal lawyer like me, not a charity lawyer or an electoral lawyer, to begin to understand it. It is inconceivable that any small charity or campaigning organisation without its own legal team would be able to look at it and understand it. They would be bound to have to seek expensive legal advice that would take money and staff away from the objects and the work that they were doing. Whatever else happens in relation to Clause 28, this present clause should be taken away and written in English.

Secondly, if the Government insist on having a clause of this nature, perhaps I may also point out, as has already been done by the noble and right reverend Lord, Lord Harries, that it is unworkable. It is impossible to divide some of the expenditure by campaigning organisations between constituencies. Where does it leave the rally that draws people from a number of different constituencies? Where does it leave the battle bus that drives around the streets and crosses some constituency boundary? How on earth does an organiser who is running a national campaign apportion the particular pieces of his time to the various constituencies that may or may not be covered?

Thirdly, it is unenforceable. The Electoral Commission, comprising the people who are meant to be doing that, has said so, as your Lordships have just been reminded. One can well imagine the avalanche of complaints that are likely to be made to the Electoral Commission during and after a campaign, especially if a result has been close. Its resources are now stretched beyond what it is being required to do. It is unlikely that it will receive adequate additional resources to help with the Bill. If it does, they will be inadequate for investigating and dealing with the process of investigation and adjudication of these complaints.

[Lord Tyler]

Should I interpret the noble Baroness’s remarks that she is supporting the very carefully targeted Amendment 170A that I moved? That would deal with all the uncertainty to which she understandably refers.

[Baroness Mallalieu]

That would certainly be a much better step than what is included at present. I would say that it is absolutely unnecessary. If it is right that the spending limits are to be reduced, does that not provide one safeguard? I return to my old friend, the Representation of the People Act 1983, which in any event provides the safeguard that people are concerned does not exist now. For all those reasons, Clause 28 needs to be scrapped.