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

Hywel Francis Excerpts

Wednesday 9th October 2013 Commons Chamber

[Wayne David]

It gives me no great pleasure to move new clause 2, because, essentially, the Opposition are concerned about the lack of prior thought to, or prior serious consultation on, the Bill’s impact on the devolved institutions. When I mentioned the devolved institutions in Committee, there was a blank look on the Minister’s face. Some people believe that the legislation applies only to preparations for UK general elections, but it has an impact on devolved elections, too. New clause 2 seeks to focus on devolved institutions and the referendum, so that proper consideration is given to the Bill’s impact and so that there is proper planning for the legislation’s implementation phase.

I mentioned the lack of prior consultation. My understanding from the Office of the First Minister of the Welsh Government is that there was no prior consultation at all—the Assembly Government were asked for their comments on the day that the Bill was published in the House. I expect that there was the same lack of consultation with the Northern Ireland Assembly and the Scottish Parliament. That is very worrying. One of the Opposition’s concerns from the beginning is the hurried way in which the legislation was put together.

[Dr Hywel Francis (Aberavon) (Lab)]

I can underline my hon. Friend’s point. All Welsh Assembly Members received a letter from the Wales Council for Voluntary Action, which would have been involved in any consultation with the Welsh Government. What he says is absolutely right and confirmed by wider civil society in Wales.

[Wayne David]

I thank my hon. Friend, the Chair of the Joint Committee on Human Rights, for that accurate comment, which strongly reinforces my point. He suggests that, if there had been prior consultation, the Welsh Government would have wanted properly to consult civil society in Wales. In a sense, that underlines a wider point. The Electoral Commission’s comments on Second Reading, which were circulated to all hon. Members, state:

“It has been suggested to us that”

the effects of the legislation would

“be particularly significant in Scotland, Wales and Northern Ireland, where civil society has often had a prominent role in the development and discussion of new policy and legislation in recent years.”

We are therefore not talking about mechanical consultation; there was a desire for meaningful prior consultation with civil society in Wales, Scotland and Northern Ireland.

My hon. Friend refers to Wales, but the Government generally lack realisation of how important civil society engagement is in Northern Ireland. In fact, civil society engagement is a cornerstone of the peace process. That is one reason why great progress has been made in Northern Ireland. It is extremely worrying that the Bill undermines that process. It does so not deliberately, but unintentionally. However, that is indicative of a lack of any real understanding or desire to ensure that there is a holistic, consensual approach to such legislation.

I stress the word “consensual” because Labour Members hold very firmly the view—we adhered to this in government—that we need not only cross-party consultation and discussion, but agreement, so that we can proceed consensually, in the interests not of any political party, but of democracy as a whole. That concept of democracy is not confined to the House; it also involves consultation with the devolved institutions and civil society throughout the UK. That is my first point—the lack of engagement.

My second point relates to the technical impact of the legislation. The following changes will apply to all the devolved institutions: clause 26 and schedule 3 on the wider scope of regulated spending; clause 27 on the reduced registration thresholds; and clause 31 on the new notification requirements for relevant participators when registering with the Electoral Commission. Those three crucial aspects of the Bill will apply to the devolved institutions.

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[Wayne David]

I thank my hon. Friend for his informed comments. I am sure Members will appreciate that in the past few days my mind has been elsewhere, but he makes a valid point.

I refer Members to the Electoral Commission’s written evidence:

“The regulatory burden created by the Bill is likely to be significant. The Impact Assessment states that the estimated cost of compliance with the Bill changes for registered campaigners will be in the range from zero to £800. This assumes among other things that campaigners will need two hours to become familiar with the new definition of regulated activity since it is ‘a relatively clear and simple requirement’—

the Government are tabling an amendment on this, which might change things slightly—

“and that a day of additional information recording will suffice to deal with the new requirement. On the basis of our experience of the effort that campaigners need to make to comply with the current rules, and of our discussions with organisations that may be affected by the new rules, we do not think these estimates are credible.”

That is strong language. The Electoral Commission recognises that it will have a huge new burden, and that there will be a huge new burden on voluntary organisations, charities and campaigning organisations. To say that the estimates are not credible is a strong use of language: it does not say that they are underestimates or not correctly thought through, but that they are not credible. It worries me that the governmental body, the impartial organisation charged with the implementation of the Bill, says that the Government’s estimates of the costs and burdens on voluntary organisations are not credible. In the interests of democracy, the Government need to swallow their pride and recognise that more work needs to be done. That is what new clause 3 seeks to do.

The Electoral Commission’s written evidence goes on to state:

“The Impact Assessment also estimates that the changes to registration thresholds will lead to between zero and 30 additional campaigners needing to register in 2015 compared to 2010. It is difficult to estimate the likely level of additional registration…but again this appears likely to be a severe under-estimate on the basis of our recent discussions with campaigners.”

Not only is there a lack of credibility, there is now a severe underestimate.

The uncertainty and the burdens the Bill will place on campaigners could be mitigated by recasting the definitions of what is covered, and the Government are making some—only some—attempts to do that. That is not a straightforward process, however, and the complexity of the situation is, if anything, being made worse and the legal uncertainty greater. It will require careful testing for those potentially affected by the definitions.

The shame of the Bill is this: many of us suspect that the level of burden and complexity will be such a disincentive for campaigning organisations that they simply will not bother. If campaigning organisations absent themselves from the democratic process, democracy will be the loser. In the run-up to all elections—in devolved elections, as well as general elections—civil society increasingly plays a positive role in asking candidates where they stand, putting political parties on the spot, asking the difficult questions that us politicians sometimes do not want to answer and raising issues that the general public might not have thought of.

[Dr Francis]

My hon. Friend is making an important and non-partisan point. The campaigning by the Royal British Legion was welcomed by all political parties, because so many Members—probably all of them—endorsed the military covenant.

[Wayne David]

My hon. Friend makes a truly excellent point. Sadly, the criticism levelled at those of us who have strong reservations about the Bill is that we somehow want to promote extremists or those in our political camp. The truth is a long way from that—it could not be further away.

The example of the Royal British Legion is a very good one. I think, largely due to its excellent work in support of the covenant, that there is consensus in the House on how we need to give the greatest possible support to former members of the armed forces who have given so much to defend this country. That consensus was in large part achieved due to the work of the Royal British Legion in the run-up to the general election. All of us received representations, and long may it be able to do that kind of work. The Royal British Legion is one of the organisations that has made representations to MPs to express concerns about the Bill, even though the Government have made some concessions. I welcome those concessions, but even the Royal British Legion thinks that there is a heck of a long way to go.

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[Wayne David]

There has not been broad agreement—in fact, there has been very little agreement—that the Government’s amendments are anywhere near enough. I said in Committee that I welcomed the fact that the Leader of the House had had discussions with the National Council for Voluntary Organisations and given certain verbal commitments. Since then, however, the NCVO has said, “Hang on, we’ll see what is actually proposed,” and now it has considered the proposals in detail and, more importantly, taken legal advice, there is a consensus among most voluntary organisations that the proposals are not sufficient and arguably create further complications, which underlines the point that we have made consistently: this is the wrong way to approach this kind of Bill. We should not be in this position, but unfortunately we cannot turn the clock back, which is why it is important to focus on new clause 3 and at least recognise the need for the Government to take stock of the implications, many of which they have not given proper consideration to.

[Dr Francis]

Had there been a general election in November or December 1913, would the South Wales Miners Federation, on this day 100 years ago, have been prevented from campaigning for a health and safety at work Act following the explosion in Senghenydd, when 439 miners were killed?

[Wayne David]

My hon. Friend makes a powerful point and refers to the Senghenydd disaster, in my constituency, of October 1913. I will not speak at length about it, but the point is that historically all civil society organisations have been able to campaign on issues of concern to them and their members, and today’s health and safety legislation came about through the active campaigning by men and women in places of work. As a direct consequence of what happened in Senghenydd in 1901, when 81 men lost their lives, legislation was introduced, but unfortunately it was not implemented by the coalers and so there was another horrific explosion in the same colliery a few years later, when 439 men and boys lost their lives. Of course, things have improved enormously since those days, but the point is that many great social advances come about not because politicians decide in an ivory tower that something is good for people, but because in a democracy people have the ability and wherewithal to campaign for measures that will improve their and their communities’ lives. Our fundamental concern about part 2 is that the encumbrances created are so great that a raft of civil society organisations might think that things are far too complicated and onerous for them to bother to engage in the democratic process.

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[Mr Chope]

Obviously I do. I am often suspicious of the word “consensus”, but I think that when we are dealing with changes in electoral law, consensus is very important.

In my capacity as a member of the Parliamentary Assembly of the Council of Europe, I go off and monitor a fair number of elections, and the most difficult cases with which to deal are those in which a Government have used their majority to introduce changes in the electoral law, and, in some cases, have used a politically motivated electoral commission to support their actions. That brings democracy into disrepute, especially in some of the emerging democracies in eastern Europe. I think that this is an instance in which we should be aiming for consensus, and if consensus could be achieved by the Government’s withdrawing the Bill, or not continuing with it at the current pace, I should be all in favour of it.

[Dr Francis]

The hon. Gentleman’s approach is precisely the approach adopted by the Joint Committee on Human Rights. We said as much in our meeting this morning, and I was delegated to convey that sentiment to the House this afternoon.

[Mr Chope]

I am grateful to the hon. Gentleman. It is invidious to make comparisons, and I know that his is a Joint Committee of both Houses, but I think it a pity that the Committee has not been able to present a report to the House by this stage. If our Committee could do it, I am sure that his Committee would, or should, have been able to do it as well. It is very sad that his Committee’s no doubt excellent report will be available to their lordships, but is not available to Members of this House. This is not a criticism of the hon. Gentleman, but I hope in future he will cancel all leave when necessary and bring his troops back.

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[Tom Brake]

I do. It would be foolish of me to say that some charities are not concerned about this issue. Clearly they are, and the NCVO and others have expressed their concerns. Our role is to restate as many times as is required that, as my hon. Friend will know, charities overwhelmingly do not campaign for the electoral success of a party or candidate and therefore are not caught by our proposals. We can restate that in as much contact with charities as possible. Of course, as I think she would agree, other organisations that are clearly campaigning for the electoral success of a party or candidate should be caught by this legislation, as they are caught by the current legislation. Nothing that we are proposing changes that, apart from the things that I mentioned earlier as regards, for instance, the level of controlled expenditure that we allow.

[Dr Francis]

The theme of the Deputy Leader of the House’s remarks is that there is considerable misunderstanding out there among voluntary organisations. Would it not be reasonable and decent to provide more time for his proposals to be better understood?

[Tom Brake]

What is reasonable and appropriate is for us, as a Government, to set out very clearly our intention, which is not to stop charities campaigning on policy issues, and to restate that intention as often as is required so that charities can see what it is. That is what we will carry on doing, and I am confident that we will get the message across.

Government amendment 33 removes the additional test that expenditure might otherwise enhance the standing of a party or candidate. I hope that charities and campaigning organisations will see this as a positive step in providing them with greater clarity. Although we do not consider it to be a significant change, we recognise that this additional limb of the existing PPERA test was perhaps less clear and might have suggested a more remote connection from promoting electoral success, and we want to be clear that that is not our aim. This should provide further clarity and reassurance to campaigners as to the test they have to meet in order to incur controlled expenditure.

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[Dr Francis]

It is a pleasure to follow the hon. Member for Caithness, Sutherland and Easter Ross (John Thurso), although I probably disagree with almost everything he has said.

I speak as the Chair of the Joint Committee on Human Rights. At the outset, I should declare some interests. I am a member, albeit inactive, of the National Trust. I also belong to Community, my union, a well respected campaigning organisation. I also declare, as a historical footnote, that more than 40 years ago I worked for the Trades Union Congress.

My Committee met this morning to consider its report on the Bill; its work, although not yet complete, is well advanced. I have been asked to make important points about part 2 as it relates to human rights on the issue of non-party campaigning. Notwithstanding the Government’s amendments, my Committee’s view is that the overall effect of part 2, on lower spending limits, lower thresholds for registration and increased numbers of campaigning activities, may well be a chilling and adverse effect on free speech and freedom of assembly at a particularly important time—the run-up to general elections.

In September, yesterday and today, I have told the House about my Committee’s concerns about unseemly haste; one member of my Committee—not me—described it as “appalling haste”. We believe that that has a potential impact on the human rights aspects in part 2.

The Bill purports to address matters of democratic process, especially transparency and lobbying, so it is a bit rich to tell the public that there is not sufficient time for them to be properly consulted. My Committee has been almost overwhelmed, not just by the late Government amendments but by the volume of public concern—from Oxfam, the TUC, the Electoral Commission, the National Council for Voluntary Organisations and the Wales Council for Voluntary Action, particularly with regard to non-party funding and campaigning. My Committee believes that there should be a democratic pause to allow the Government and Parliament to reflect on all the concerns about part 2 and to give time for consideration of our report when it is published very shortly.

The debate thus far has revealed the complexities and mysteries of non-party campaigning and funding, which needs to be properly and thoroughly explored inside and outside this House. Part 2—of a Bill of great democratic importance—should be properly scrutinised by both Houses. With all due respect to the other place—a non-elected place, important and valuable as it is—this House should also be given sufficient time.

When we reflect on the grave concerns expressed by large and small charities and organisations about non-party funding, we should remind ourselves of the people who make democracy work at the local level—the volunteers, the organisers and the people who demonstrate. Demonstrating is part of our democratic right. I joined the TUC 40-odd years ago in the week after the demonstration against the Industrial Relations Bill on 21 February. That was a very important occasion. I wonder whether its cost, if there had been a general election that year, would have fallen on the TUC.

In my own constituency I think of Ted Clark, who died last night—a campaigner in many respects, not just a party political campaigner but an active member of his church and his trade union. I also think, in my neighbouring constituency, of Hefina Headon, who died at the weekend—a campaigner with the Air Training Corps and Banwen pony club and the secretary of the Neath, Dulais and Swansea Valley miners support group. These are the people—the volunteers—who could well be affected by this Bill, and it is an offence to them.

[Mark Lazarowicz (Edinburgh North and Leith) (Lab/Co-op)]

I am sure that if the Government respond to my hon. Friend’s points they will assure the House that that is not the kind of organisation they aim to affect through the Bill. However, is not the fact that these real fears are out there even more reason why time should be taken to undertake this consultation, have this discussion, and do this debating and decision making properly?

[Dr Francis]

Indeed; that is the final point that I want to make. At this very late juncture, I implore the Government to have a democratic pause to allow them to allay these concerns. It would be an opportunity for both Houses to reflect not only on my Committee’s report but on the deep concerns of the many national and local organisations that have written to us. I think that our report will be more up to date than the Government’s position next week, because we will have taken on board all those concerns.

[Jenny Chapman (Darlington) (Lab)]

It is a pleasure to contribute to this debate, and particularly to follow my hon. Friend the Member for Aberavon (Dr Francis), who speaks with great authority and experience.

I would vote against anything that frustrated this part of the Bill, so I want to speak in support of amendment 101. All the problems with this provision stem from one mistake, which is that it is rushed and has not been consulted on. In the past I have been responsible for negotiating compacts with the voluntary sector. Compacts are not widely known about, and even in the voluntary community and social enterprise sector they are viewed with a huge degree of scepticism. It can be the devil’s own work getting charities to engage with the process because they do not trust the local authorities, the Government or other organisations taking part in it. Driving a coach and horses through the first principle of a compact will do nothing whatsoever to encourage a relationship of trust with organisations in this sector. There has been no consultation and no time to consider the amendments. This is doing more than anything else I can imagine to damage the relationship with our voluntary and community sector that was starting to be built up in Government and in local government across the country.

It is a matter of huge regret that the Government have managed carelessly to stir up a massive amount of distrust in the third sector at a time when we are, rightly, asking more and more of its organisations—this is not a new thing; it has been going on for a very long time—in very important and sometimes dangerous areas of public life, such as the supervision of offenders, safeguarding children and adult social care. That is reckless in the extreme and I will be voting in favour of amendment 101.