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

Baroness Mallalieu Excerpts

Tuesday 21st January 2014 Lords Chamber

[Lord Harries of Pentregarth (CB)]

My Lords, I recognise the great importance of constituency limits, and believe that there should be real restraints in place to stop large sums of money distorting an election result at constituency level. There is therefore no disagreement about the purpose of this clause. However, as the original draft did, the current version has grave drawbacks.

First, in its briefing before Second Reading, the Electoral Commission said in effect that it was unworkable and unenforceable. Its exact words were that, even if it were given extra resources,

“it will be challenging to obtain robust evidence to determine and sanction breaches in specific geographical areas, for example, regarding the effects of a leafleting campaign or mobile advertising in different constituencies ... it is likely to be difficult to demonstrate that a breach meets the necessarily high test for using a stop notice to intervene to halt campaigning activity”.

Secondly, campaigning groups have pointed out many times that for the most part they are not organised on a national basis, and it would be a huge administrative burden to divide up national expenditure on constituency lines.

Thirdly, a number of campaigns—for example, against a hospital closure or a motorway extension, let alone HS2—cross a number of constituency boundaries. It would be difficult to allocate expenditure in a transparent way that could be policed by the regulator. With a view to keeping constituency limits, but making them more workable and enforceable, the noble Lord, Lord Tyler, brought forward an amendment on Report, but withdrew it in the hope that the Government would bring forward their own amendment to meet these major concerns. In the event, the Government have not done this. I have therefore tabled this amendment, which builds on the concerns of the noble Lord, Lord Tyler, to take into account the point made by the Minister in his response. It also takes into account legal advice to make the wording more precise, clear and therefore workable.

The fundamental principle behind this amendment is to capture, for the purpose of controlled expenditure, activities that can be clearly monitored, costed and enforced. This means,

“election material … which is addressed to electors whether addressed to them by name or intended for delivery to households”.

This was the amendment of the noble Lord, Lord Tyler. I have added the phrase,

“or otherwise distributed within any particular constituency or constituencies”.

This is to meet the point made by the Minister, who said:

“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”.—[Official Report, 15/01/14; col. 302.]

So, under my amendment, that activity would be captured and would count towards the constituency limit.

The second activity included in the amendment is,

“unsolicited telephone calls … made to … electors or households … which can reasonably be regarded as intended to ascertain or influence their voting intention”.

Sub-paragraphs (2) and (3) proposed in the amendment provide a more detailed definition of what is meant by targeting one or more constituencies. In principle, activities would be subject to constituency limits where the distributional contact is “wholly or substantially” due to their location in one or more particular constituencies. This avoids mailings based on general issues becoming subject to constituency limits where the location of recipients is primarily chosen because they are affected by an issue, or have expressed a concern about it, rather than on an electoral basis. These mailings may be subject to controls on a national level even if they are not subject to the constituency-specific limits.

The amendment before the House today differs from Amendment 52 as tabled on Report by the noble Lord, Lord Tyler, and others in that it would include material distributed other than by delivery to addresses, such as through distribution in shopping centres, and in that it provides a more detailed definition of what is actually meant by targeting one or more constituencies. My proposed new sub-paragraph (3)(a) is, I think, uncontroversial in that it simply repeats wording already contained in Clause 29. Proposed new sub-paragraph (3)(b) is a response to the response of the Electoral Commission, which, in an earlier briefing, said:

“In principle, we support amendment 52, tabled by Lord Tyler and others … We see benefits in defining the scope of activity covered by the constituency controls more narrowly than in Part 2 of the Bill generally. For example, costs relating to material sent to specific addresses can be identified and evidenced with some confidence”.

However, in its further briefing for Report, while reiterating its support in principle for the amendment, the commission was concerned about general campaigns on an issue and how costs associated with them would be allocated to each constituency:

“If Parliament wishes to narrow the scope of the constituency controls so that they only apply to mailings and unsolicited phone calls, we recommend that this should only apply to campaigning that appears intentionally concentrated in particular constituencies”.

Sub-paragraph (3)(b) proposed in the amendment addresses that point, in relation to both telephone calls and leafleting, much more carefully, because it tries to define what is meant by a constituency. In its final briefing, which we received just before this debate, the Electoral Commission says:

“On balance, we support this amendment, which should make the new constituency controls more practicable for campaigners and more enforceable”.

Given the concern this part of the Bill has aroused among third-party campaigners and the concern of the Electoral Commission about its enforceability, and taking into account the additional wording in this amendment to meet the concerns of the Minister and of the Electoral Commission, I very much hope that the Government will be able to accept it. I beg to move.

[Baroness Mallalieu (Lab)]

My Lords, my name is also on the two amendments in this group. I start by very briefly saying that, on some aspects of the Bill, the Government have clearly listened and responded positively, for which we are all grateful. That makes it harder for me to say, as I stand up yet again to carp and complain, that I hope that they will not dismiss the words that I have just used. The reality is that the Government are determined to have Clause 29, which I suspect—even if this modest amendment is accepted by the House today—will have little value except to serve as a warning to future Governments tempted to make constitutional changes without first thinking very carefully about them and the consequences.

The constituency limits introduced in the Bill, which, as we all know, reduce the spending limit to £9,750 in the year of an election, do not do that for candidates or political parties but only for non-party campaigners. We were told at the outset that Clause 29 is necessary to reduce the perception of undue influence. That is curious, because there is no evidence—I have not heard any in the course of any of the lengthy debates—to support a claim that there is any such public perception or that the current combination of PPERA and the Representation of the People Act has been in any way ineffective in relation to non-party campaigning so far. There is no evidence that non-party campaigners are currently exploiting the existing law by focusing their spending on a particular constituency. Indeed, no data are presently available on third-party spending by constituencies.