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

John Pugh Excerpts

Wednesday 9th October 2013 Commons Chamber

[Tom Brake]

The hon. Gentleman may not have understood. The fact is that we had no intention of changing the test of what constituted promoting or procuring the electoral success of a party or candidate. By reverting to the PPERA legislation, we have put charities and other organisations back to where they were in the run-up to the 2005 and 2010 general elections in relation to what constituted procuring the electoral success of a party or candidate. I accept that in other ways we have changed things in response to the Electoral Commission’s request about the definition of controlled expenditure.

[John Pugh (Southport) (LD)]

In his letter, Sir Stuart Etherington says:

“A health charity could publish a leaflet highlighting the dangers of smoking. If smoking legislation became a party political issue in an election this activity could be deemed to have the effect of supporting a party’s campaign”.

Has he simply misunderstood the legislation?

[Tom Brake]

If an anti-smoking organisation ran a campaign subsequently adopted by a party, that would not count as controlled expenditure unless that organisation subsequently said, “Oh, by the way, party X is supporting our campaign, so vote for party X.” The mere fact of running a campaign supported by a party would not incur controlled expenditure. That is clear.

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[Stephen Twigg]

I will come to that, but I am not aware of a problem. When an hon. Friend intervened, we did not get an answer from the Minister on whether there is an example in practice of the limit being too high. However, the Opposition do not have a closed mind on a proper cross-party, evidence-based debate on the matter. We do not believe the Government have done that.

[John Pugh]

One thing that puzzles me is that, during previous debates on electoral legislation in the House, Labour Backbenchers pleaded time and again with the then Labour Government to do something about expenditure in marginal constituencies—Ashcroft money. Some of them are no longer Members of the House. Why did the Labour Government not do anything?

[Stephen Twigg]

The hon. Gentleman moves the debate to party political spending, which is not addressed in the Bill. I would happily work with him and his colleagues to address party political funding—I would be delighted to do so. Perhaps we can pursue that beyond today’s debate.

In Committee, the Minister, who has led for the Government today, promised

“to ensure that, on Report, the fundamental concern of charities over the confusion that they say the Government have introduced into the definition of election materials and election purposes will be addressed.”—[Official Report, 10 September 2013; Vol. 567, c. 862.]

In reality, the Government amendments simply fail to fulfil his promise.

I refer the House to the legal opinion of Ros Baston, who has been working with a number of third sector organisations. Her legal opinion, which is one of a number of which the Minister will be aware, demonstrates why we need far more scrutiny and consideration of part 2. It states:

“Issues-based campaigning will continue to be covered by regulation. It appears that the government considers that removing the previous reference to ‘enhancing the standing’ of parties or candidates has a significant effect on the scope of what is covered…In my view, it does not…The natural meaning of ‘promote’ is to enhance the standing of, or make people think better of, something or someone…The natural construction, therefore, is that issues-based campaigning will be covered where it can be reasonably regarded as intended to encourage voters to look more favourably at candidates or parties who do or don’t support particular policies, as well as support for a specific party or candidates. This is primarily an objective test, and, in simple terms, looks at the likely effect of the activity.”

The Minister spoke of intent, but Ros Baston asks us to look at the likely effect of the activity. If an activity is likely to make people think better of parties or candidates who support something, it might be covered by the Bill, even if there are reasons for it such as awareness-raising—the hon. Member for Cheltenham (Martin Horwood) has made that point.

Ros Baston also states:

“Campaigns could fall within regulation if they…promote policies which, for whatever reason, are associated with one or more political parties or candidates”

and not others

“such as housing, welfare, a referendum on EU membership, wind farms or HS2”

and

“use MPs or candidates as active advocates of their cause”.

She continues:

“I do not consider it sustainable to argue that the campaign is not hoping that people or parties sympathetic to its cause are elected. Therefore, when it undertakes public awareness activity in the run-up to elections, it may well at some level intend to improve the chances of election for those who support their cause as well as to encourage others to join the campaign. There is, after all, no requirement in the Bill or the proposed amendments for the activity to be directly or obviously partisan, or for candidates to be named.”

The opinion goes on:

“The effect of the Bill remains that more charities and low spending campaigners will be subject to the enhanced and much more onerous restrictions. This is because the range of activities covered will increase”—

that is why it is not simply the same as the current legislation—

“and the thresholds for registration will decrease to just £5,000 in England and £2,000 in Scotland, Wales and Northern Ireland”.

We will discuss those thresholds under the next group. Furthermore, it states that the additional

“limit on spending in individual constituencies could mean that a single joint campaign on a specific issue in one area could result in further spending—local or national—being unlawful.”

Ros Baston’s final point is that the

“amendments make two changes which are of concern to campaigning organisations.”

Those relate to “market research and advertising” and to

“the definition of a ‘section of the public’, and the removal of the exclusion for material sent to ‘relevant supporters’”.

She states:

“It remains unclear as to whether the costs for research which is used in publications are included, and the government has not excluded staff costs (which are excluded for political parties). It also remains very probable that many political blogs will be covered notwithstanding the amendments. This could lead to a bizarre situation where political parties would not have to account for spending on certain types of market research, but that non-party campaigners would have to do so.”

I do not want my entire speech to be made up of the opinion of Ros Baston, but I will give one final quotation because it is an interesting and forceful opinion:

“The drafting is so vague that campaigns will have to consider whether market research will be caught, regardless of whether the results are used to produce material available to the public or to target particular members of the public. Further, there is no requirement for the research to actually be used in practice at all.”

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I have tabled an amendment that is sponsored by the NCVO—I make no bones about that—to open this debate up. The NCVO is saying, “We now know that you want to open up the law and change it. We have a different view about how you can do that.” It is putting forward its view to protect its own interests. Either we can go along with that signal and let things be opened up for proper debate and consideration within the Government or we can say, “No, we don’t even trust the fact that you now feel you have found a way forward and a form of words that can take us forward on this question of ‘primary purpose’”. We should listen to the NCVO. This is not the last time we are going to debate this issue; it will go to the second Chamber and it will come back here. I think we should listen to the NCVO and support amendment 101, so that that breathing space can be given.

[John Pugh]

The hon. Gentleman mentioned Pandora’s box. He is Chair of the Political and Constitutional Reform Committee, but I understood him to be suggesting that he wanted us to vote for a form of words, as an amendment to a Bill, that he did not want in the Bill. If that were the general practice throughout the House of Commons, it would create a strange precedent, would it not?

[Mr Allen]

Well, we were just being serious for a moment there. The hon. Gentleman normally joins me in being serious about the role of Parliament. I know that he is having a bit of fun, but this is a serious issue. Some 10,500 voluntary organisations and their parent organisations are saying, “We think you’ve got this wrong—think again.” If he feels that if the amendment were to be won tonight—whatever form of words we use—it would survive the process in the second Chamber and come back, he is having a little joke and we can all have a laugh at that. [Interruption.] I am being told to speed up so that we can get to the vote, so I would like to be allowed to make progress.

I am not just talking about 38 Degrees getting a bad press—rightly, some might argue—or people sometimes being annoyed, depending on their political view, with those on the fringes of some voluntary organisations, because a lot of other people have written to us just this day. A number of them have said things such as they fear this Bill, they are worried about unintended consequences and this does not have legal certainty. Are those the wild and wacky people we need to legislate against? I shall tell hon. Members who these people are; I shall tell the House who said those three things. They were said by Rabbi Sybil Sheridan of the Assembly of Reform Rabbis UK, Neil Thomas of the Catholic Fund for Overseas Development, Farooq Murad of the Muslim Council of Britain and Paul Parker of the Quakers. I could go on to cite a list of about 20 people from faith groups. According to the Leader of the House, they are making something up in order to embarrass the Government or because they have been wound up. I do not believe these people are so frail-minded. These people are anxious, just as the chairman of a charity who is standing before you is anxious, that we are putting in the Bill and into law something that will chill our ability to campaign. I guarantee to the House that it will chill my organisation’s ability to campaign, because if some bright spark wants to take a case, for some reason or other, against what has been said inadvertently, my budget—I go around cap in hand trying to raise money for my charity—will be spent in a court of law, not on providing the service that I think is appropriate through my charity for babies, children and young people. How many staff would I have to fire if I got landed with a £200,000 legal bill? That is why amendment 101 and the symbolism of tonight’s vote are important. They are important for all those charities outside that have been inundating us with their views.

As the Chair of the Select Committee, elected by this House on an all-party basis, and not as a Back Bencher on the Labour side doing the bidding of the Whips to cause a few problems for the Government, I have a request for Members from all parties. When we last considered the question, the difference between the proposal’s falling, meaning it had to be reconsidered, and its passing was 16 votes. I am asking 16 Members of this House to vote with those who voted last time on amendment 101. That will mean that we give the Government a chance to rearrange the clause in a way that will satisfy people in this House and, above all, that will satisfy people outside who fear what we are going to do today.