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

Lady Hermon Excerpts

Tuesday 10th September 2013 Commons Chamber

[John Thurso]

I have read that briefing, but I am speaking to amendment 47 to clause 26. My understanding is that it will meet the concerns I have expressed, but I will wait to see what my right hon. Friend the Deputy Leader of the House says before coming to a final decision.

[Lady Hermon (North Down) (Ind)]

The hon. Gentleman has been generous in taking interventions. The Deputy Leader of the House has indicated that the Government will amend the Bill on Report, but what if the Government do not introduce the essential and necessary amendments to clause 26? What assessment has the hon. Gentleman made of the impact of part 2 of the Bill, unamended, on charities?

[John Thurso]

We are in Committee, and a great many amendments have been tabled. I will make a judgment on exactly what the Bill does at the end of Committee and Report. I have expressed concerns and tabled amendments, and would like to see how we get on.

--- Later in debate ---

[Dr Eilidh Whiteford (Banff and Buchan) (SNP)]

It is a great pleasure to follow the right hon. Member for Haltemprice and Howden (Mr Davis). He has made an important and valuable contribution to today’s debate. When we debated the Bill on Second Reading, the most serious concerns raised by Members on both sides of the House related to clauses 26 and 27, so I am glad that we are debating this robust and constructive set of amendments this afternoon. I am also glad that the Government have acknowledged that certain aspects of the proposals are problematic and have agreed to table amendments on Report.

The principles and the workability of this part of the Bill are problematic, and I hope that the Government will look at it again. In particular, they have sought to distance their intentions from some of the scenarios that have been outlined by civil society groups, but we must concentrate on the actual text that will form the basis of the courts’ interpretation of the legislation. I reiterate a point I made the other day about the explanatory notes to the Bill, which state clearly:

“The definition of the term ‘for electoral purposes’ does not rely solely on the intent of the third party; the effect of the expenditure must also be considered.”

That illustrates the Bill’s ambiguity and lack of clarity.

The Electoral Commission has consistently raised the concern that, under this part of the Bill, it will acquire a wide discretion to interpret whether third party activities fall within the regulatory framework established by the Bill. Neither the commission nor I thinks that that is an appropriate role for it. Its role is to regulate, not to decide what should be regulated. I share the concern expressed earlier by the Chair of the Select Committee, the hon. Member for Nottingham North (Mr Allen), on this point.

The Electoral Commission has also expressed what I suspect are well-founded fears that, as things stand, any interpretation of regulated activity could be open to legal challenge. In the short time that we have been discussing these proposals this afternoon, we have already heard examples of organisations taking legal advice. The last thing any of us wants is for this to end up in protracted and expensive legal challenges. That would not be an appropriate way of deciding what the law actually is. We need clarity on the face of the Bill and in the explanatory notes. I observe that many of the amendments in this group share the common aim of clarifying and tightening up the Government’s definitions, and I shall be looking for assurances from the Minister that any amendments tabled on Report will tackle the issue of definitions, in order to avoid placing the Electoral Commission in that contradictory position—that conflict of interest, if you like—in relation to the job that it is being asked to do.

[Lady Hermon]

Will the hon. Lady give way?

[Dr Whiteford]

I would be delighted.

[Lady Hermon]

I am most grateful to the hon. Lady; it is nice to be greeted so warmly when making an intervention. I welcome the Government’s promise of amendments on Report, although I am sorry that they will not be tabled earlier. A key issue relating to clause 26 that the Government need to deal with is the use of the words

“future relevant elections (whether imminent or otherwise)”.

Does the hon. Lady agree that charities and other organisations will not know what “imminent or otherwise” means, other than that the elections will take place some time in the future?

[Dr Whiteford]

The hon. Lady provides a perfect illustration of the point that I was making. Parts of the Bill are so vague as to be nonsensical, and they will be open to all kinds of challenges. They are completely open to interpretation, and the words that she has just mentioned could mean 20 different things. It is exactly that kind of vague, ambiguous language that needs to be clarified. I worry that, at the end of the process, we shall be left with unnecessary complexity, unhelpful ambiguity and unintended consequences. I urge the Government to go back to the drawing board and take the time to consult properly with stakeholders on an appropriate and balanced set of measures to ensure that third parties can continue to contribute to the democratic process without having undue and disproportionate restrictions placed upon them.

I have particular concerns about the detrimental impact that the measures could have on civil society—and, in particular, on the voluntary sector—in Scotland. I shall not repeat the points made so eloquently by the hon. Member for Caerphilly (Wayne David) about the devolved Administrations and the disproportionate effect that the Bill could have on their legislative and electoral processes. This part of the Bill is a quagmire, and its consequences have not been adequately thought through. There has not been adequate consultation with key stakeholders, including elected parliamentarians in the Governments of the devolved Administrations, and it is important that we should take the time to go back and carry out that consultation properly.

One of the points that I made on Second Reading was that those third parties that are also charities are already regulated very effectively, and are explicitly prevented from engaging in party political activity. They are already significantly constrained in the activities they can undertake during an election period. In my extensive experience of the voluntary sector, charities—whether large or small—take those responsibilities seriously and tend to err on the side of caution when determining what they do when engaging with politicians and public policy processes in the run-up to elections.

--- Later in debate ---

[Lady Hermon]

The intervention of the Deputy Leader of the House has, not for the first time today, added confusion. We are talking about clause 26, which states that “a course of conduct” could be covered if

“it does not involve any express mention being made of the name of any party or candidate.”

Therefore a charity that does not mention the name of a party or candidate could be covered.

[Helen Goodman]

That is right.

In the run-up to general elections, voluntary organisations often send e-mails and letters asking people where they stand on certain subjects, and after receiving the answers they send another message to their supporters saying, “Well, candidate X stands for what we want and candidate Y stands against it. If you think this is a big issue, we advise you to vote for candidate X, not candidate Y.”

--- Later in debate ---

[Nia Griffith]

Indeed. My hon. Friend makes a very good point. The worry is that the opportunity that those organisations have to feed into policy processes will be choked off. We have a good relationship, as my hon. Friend says, with many of those organisations, which contribute across the spectrum not only to the UK Government, the UK Parliament and some of our Select Committees, but to the devolved Administrations, and that will be choked off. People in our constituencies will become less engaged, as we heard.

[Lady Hermon]

An important point was made in an earlier intervention, to which the Deputy Leader of the House should pay attention. I am not saying that he has not paid entire attention to every remark made this afternoon; I am sure he has. I refer to the fear that charities have about criminal offences being committed. They will not know about being in breach of the legislation until after the event. It is imperative that the Government write into the Bill that any new criminal offences created by it, particularly in parts 1 and 2, will not have retrospective effect. That is essential, otherwise the Secretary of State could not sign the section 19 notice stating that it is compliant with the European convention on human rights.

[Nia Griffith]

Indeed. The hon. Lady makes a very good point on that issue, as did the right hon. Member for Haltemprice and Howden (Mr Davis). The key thing now is to move forward and get things right. I hope that, whatever the Government intend to bring forward for the next stage of the Bill, a proper consultation will take place. We would much rather see the whole thing scrapped so that we could start again, but if we are not going to get that, let us have the whole provision rewritten, with time for people to consider it, consult and come back with comments so that we can achieve a measure that is workable. As it stands, the proposal would be a disaster if it went through because it would curtail the very thing that we want to happen—greater engagement in our democracy.

--- Later in debate ---

[Tom Brake]

I am afraid I will have to write to the hon. Lady. She will be able to judge for herself whether she feels that the response is suitable.

The hon. Member for North Down (Lady Hermon) intervened on the hon. Member for Banff and Buchan and referred to future elections “imminent or otherwise”. I would like to clarify that that is an existing definition under PPERA, not something new that the Bill would introduce.

[Lady Hermon]

The Minister mentioned me, so I appreciate his giving me the opportunity to say that the Bill amends existing legislation, specifically the Political Parties, Elections and Referendums Act 2000. That is what we are discussing. The fact that a term already exists in legislation does not make it good. I would like him to explain what is meant by a future election being “(imminent or otherwise)”. It is in that Act. What does it actually mean?

[Tom Brake]

I can assure the hon. Lady that, given that this term has been in legislation since 2000, it must be completely clear. I am going to move on.

My right hon. Friend the Leader of the House and I have met representatives of the voluntary sector to hear their concerns first hand. I can assure my hon. Friend the Member for Caithness, Sutherland and Easter Ross and the hon. Members for Caerphilly, for Nottingham North, for Perth and North Perthshire and for Banff and Buchan that we will look closely at the drafting of the clause so that it is absolutely clear that we are not changing the current test. I apologise for repeating that. It must be the third, fourth or fifth time I have said it today, but I think it is important to make it clear to everybody what we are seeking to do. We believe that that would most simply be achieved, and the greatest reassurance would be given to campaigners and to the Electoral Commission, by a reversion to the situation set out by existing legislation, which defines controlled expenditure as expenditure

“which can reasonably be regarded as intended to promote or procure electoral success”.

[Interruption.] I hear one of the Opposition spokesmen say that this is a shambles. I hoped to hear from him that it was, in fact, a case of the Government’s listening to the concerns expressed by charities and by Members on both sides of the House, and responding to them.

--- Later in debate ---

[Angela Smith]

Our hon. Friend the Member for Bassetlaw (John Mann) articulated clearly the feelings of parts of many organisations in the third sector, who feel aggrieved that they are being picked on, as it were, in this Bill while the big spending takes place elsewhere.

The sceptical among us could be forgiven for thinking that in part 2, and clause 27 in particular, the Government appear to be trying to insulate their record and policies from legitimate democratic criticism. For example, a number of recent high-profile third sector campaigns could well have been stymied if this Bill had been in place. They include campaigns such as Stonewall’s equal marriage campaign or the Royal British Legion’s military covenant campaign. Indeed, as has been made clear on a number of occasions this afternoon, the National Union of Students could find it difficult to hold Members to account in the forthcoming election period.

It is perfectly possible that the Bill could also prevent the coalition of charities campaigning for plain packaging for cigarettes from making its case in the forthcoming election period. That is how serious the effect of this Bill could be. Cancer Research UK and the British Heart Foundation could suffer the dampening effect of this Bill, and thereby become reluctant to make their case, while at the same time Lynton Crosby—a lobbyist for the tobacco industry—is working from the heart of the Government machine in Downing street. At a time when trust in politics is at an all-time low, why do the Government want to restrict the one part of our politics that is doing a good job in engaging people from all backgrounds in our political process? Why do the Government want to risk lowering the reputation of our political culture even more?

Clause 27 also illustrates a worrying trend on the right in politics—the challenge to the role of charities in the Prime Minister’s big society. Let us take the recent speech by the Justice Secretary, who proposed in an article in the Daily Mail recently that we ought to curtail the use of judicial review because—in his words—

“judicial reviews are launched in order to try to disrupt Government policies, such as those initiated by anti-HS2 campaigners or by those who believe it is right that taxpayers’ money should be spent on subsidising people in social housing to keep spare rooms.”

More and more, we are seeing challenges to a vibrant civil society—challenges that, if acted on, would contribute to an insulation of Government from the crucial checks and balances needed in a healthy democracy.

[Lady Hermon]

I would like to draw the hon. Lady’s attention to a problem with how clause 27 will apply to Northern Ireland—I should have intervened on her a little earlier, but I am sure she will not mind my intervening now. She will have noticed that the limit on controlled expenditure will be reduced in Northern Ireland from £5,000 to £2,000—not £2,500, but £2,000. I would like her and her colleagues—and, of course, the Minister—to address the fact that charities like the National Trust are national, covering the United Kingdom as a whole. Will the National Trust’s national expenditure or its expenditure in Northern Ireland be caught by the limit?

[Angela Smith]

The hon. Lady makes a valid point. The reduced limits for the devolved Administrations relate not just to Northern Ireland but to Scotland and Wales. I do not think the Government have thought clearly about the fact that many third sector organisations in the UK are UK-wide, so I take her point.

--- Later in debate ---

[Mr Allen]

Give me the time to undertake accurate pre-legislative scrutiny of the Bill and I will give the right hon. Gentleman his answer.

What we should be doing in this place is adding to the rich tapestry of our democracy, not emaciating, frightening, chilling or putting a shadow over it. We should not be having people who fear engaging with their politicians and fear being part of our electoral process. We should have people who say, “We are welcome. Parliament is passing something that says, ‘Come in, we want to hear you. You are the big society. We want to listen to what you have to say.’” Are we saying that today? No, we are not, as we can see when we look at clause 27. This House should be sending out a much more positive message to those organisations, and to everybody else who wants to support and develop our democracy.

[Lady Hermon]

It is kind of the hon. Gentleman to take an intervention, and I appreciate his patience. He has recognised that clause 27 has particular implications for Northern Ireland, Scotland and Wales. May I urge him to use his persuasive powers on the Deputy Leader of the House and his colleagues on the Front Bench to ensure that when they amend clause 26, as they have agreed to do, and, in line with it, clause 27, they consult not only the Opposition, including him, but representatives from the regions?

[Mr Allen]

I would love to use what little persuasive powers I have on the Deputy Leader of the House and the Parliamentary Secretary, Cabinet Office, the hon. Member for Norwich North (Miss Smith), who has responsibility for constitutional affairs. I think they would be receptive, because they are affable and approachable, and they have always been understanding of what the House needs. Unfortunately, the people we need to persuade are not here. They are not listening to our debates, but we need to make sure that that message gets to them. Inconvenient as it may be when we get e-mails and letters from the big organisations I mentioned, that is their cry for help. They are requesting us to get that message over not to the people on the Front Bench at the moment, but to people a little deeper in the No. 10 and Whitehall machine. Those people must start to listen.

What amazes me is that we started off more than 16 or 17 months ago with a lobbying Bill. That was what we were looking at, and it was what my Select Committee was looking at for more than a year. We were pottering along, not very urgently, as it looked like the steam had gone out of it. There was a lot of stuff going on around the election period, but there was no great rush. When we completed our consideration, some members of our Committee—former members who are in the Chamber today—had moved on to greater things. Being on my Select Committee is a great way of getting promotion—he says, trying to fill one or two vacancies. Those people had moved on to other things before the Government got around to answering the report; it took them more than a year. The report was about lobbying.