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

Lord Bishop of Oxford Excerpts

Tuesday 21st January 2014 Lords Chamber

Moved by

[Lord Harries of Pentregarth]

11: Clause 29, page 18, leave out lines 5 to 18 and insert—
“(1) For the purposes of this Schedule “third party constituency expenditure” means controlled expenditure incurred by or on behalf of a third party in relation to—
(a) election material falling within paragraph 1 of Schedule 8A which is addressed to electors (whether addressed to them by name or intended for delivery to households or otherwise distributed within any particular constituency or constituencies), or(b) unsolicited telephone calls falling within paragraph 2 of Schedule 8A, made to such electors or households which can reasonably be regarded as intended to ascertain or influence their voting intention,where the effects are wholly or substantially confined to any particular constituencies or constituency.(2) Third party constituency expenditure—
(a) shall be attributed to those constituencies in equal proportions, or(b) shall be attributed solely to that constituency,as the case may be. (3) For the purposes of sub-paragraph (1), the effects of third party constituency expenditure are wholly or substantially confined to any particular constituencies or constituency if—
(a) there is no significant effect in any other constituency or constituencies, and(b) it can reasonably be inferred that the third party selected the relevant electors or households (or both) or otherwise distributed the material wholly or substantially to contact electors in the particular constituency or constituencies and not a wider section of the public.”

[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.

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[Lord Harries of Pentregarth]

The noble Lord knows that I value simplicity even more than he does. Would he not agree that it was right to try to respond to what the Minister said about the distribution of leaflets, and that if you were doing that, you had to try to define what was meant by focusing on a constituency or influencing the voting intentions of people in a constituency? Would he not also agree that, while there was, of course, a qualification at the end of the last advice from the Electoral Commission that there were probably difficulties remaining, the difficulties with this Bill are now far less than they were originally or even, perhaps, with his own amendment at an earlier stage?

[Lord Tyler]

My Lords, in response to that, I certainly agree that the Bill is greatly improved and I pay tribute to the noble and right reverend Lord for the amazing amount of work that he and other noble Lords have undertaken to achieve that purpose.

I regret very much the speed with which we have moved from Report to Third Reading and that we did not have a genuine opportunity—we only had a comparatively few hours yesterday—to look at this together. I regret even more that any amendments passed today, whether government amendments or others that are passed by your Lordships’ House, will be considered by the other place within 24 hours. The short period for discussion of any necessary improvements is very unfortunate. Had his amendment simply brought in the point raised by the Minister about leafleting, and therefore stuck rigidly to the simplicity of the first provision in his amendment, I would be much happier about it.

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[Lord Wallace of Tankerness]

My Lords, it was probably at one of the consultation meetings that my noble friend Lord Wallace of Saltaire held when we were discussing these matters that we heard about one substantial organisation that spent a considerable amount of money at the last election—and, indeed, registered the fact that it had done so. It was made clear that one of its activities was to focus on individual constituencies. I do not criticise that organisation for doing that, but if people are going to do such things, there should be proper limits so that there is proper transparency.

With regard to the point made by my noble friend Lord Cormack, whether I speak personally or on behalf of Ministers and officials, I think that a conference with the Electoral Commission to ensure clarity of guidance on the constituency limits could be very worth while. I say “guidance” because interpretation is, ultimately, a matter for the courts, not the commission. I am not even sure—I am making this up as I go along—whether it should be restricted to Ministers, or whether it might also include the Opposition and other parties, and representatives of campaigning groups. Some sort of round table discussion might be very helpful before the final guidance is produced by the Electoral Commission. On the basis of what I have said, I again invite the noble and right reverend Lord to withdraw his amendment.

[Lord Harries of Pentregarth]

Before I focus on what the Minister has said about the amendment, may I thank him, and the noble Lord, Lord Wallace of Saltaire, for responding on a whole range of issues to the concerns that have been expressed in this House? The Government really have moved a significant way; there is no doubt about that. But I think we are all aware that the Bill as it came to us in the first place was an appalling piece of legislation. A parliamentarian of very many years’ experience said to me that it was the worst piece of legislation that they had ever seen in a long parliamentary career. “Not quite”, I am hearing, so there must be some other cases as bad.

Again, the value of this House has been shown, as has the willingness of Ministers in this House to listen, so I genuinely thank them. I also thank noble Lords on all sides of the House who have supported some of the amendments tabled in my name and in the names of others. Not least, I thank members of the Electoral Commission, whose expertise I have had the privilege to share. The people there have worked extraordinarily hard. When I look at my e-mails in the morning I find that, night after night, they were sent off in the small hours of the morning; that gives you some indication of how hard they have worked.

Focusing on the amendment, I am disappointed that the Government have not been able to respond more positively. We made a genuine attempt to meet the point that they made about distributing leaflets, and the need to define very carefully what was or was not meant by a constituency in which there was an attempt to affect people’s voting intentions. Rallies have just been mentioned, but as the noble Baroness, Lady Mallalieu, said, if people want to get round restrictions on rallies they could easily do so by having a rally just outside a constituency where there is a narrow majority. There are all sorts of ways round, even as the Bill now stands.

My final point is about the Electoral Commission. I reiterate that it supported the amendment that has been moved today in my name and in the names of others. It said that there were still some difficulties with monitoring, but those would be nothing like the difficulties that it will have if the Bill goes through with the provisions on constituency limits unchanged. That will be extremely difficult, if not impossible, for the Electoral Commission. It is slightly surprising that the Government have not listened more carefully to what it has said. I think that the strength of feeling in the House on this issue is such that I ought to test the opinion of the House.

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Moved by

[Lord Harries of Pentregarth]

12: Clause 29, page 18, line 24, leave out “controlled” and insert “third party constituency”

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Moved by

[Lord Harries of Pentregarth]

21: Clause 39, page 39, line 41, at end insert—
“( ) The report under subsection (6) shall be laid before Parliament not more than 18 months after the date of the first relevant parliamentary general election.”

[Lord Harries of Pentregarth]

My Lords, I need not speak to this amendment for very long. We very much welcomed the Government’s commitment to have a review of the Act after the 2015 general election and that they will set up a person to monitor the election itself. That is all very much to be welcomed—not least of course because, even with the amendments that the Government have accepted, there is still a great deal of concern about this Bill.

We all know that there is a tendency for reviews to be spun out and spun out. That is why some of your Lordships were very keen to have a sunset clause. I believe that Amendment 21 will ensure that Parliament has a proper opportunity to see that review and respond to it well before the election following the 2015 election. We believe that 18 months is about the right time for a proper review to take place and for all the consultations that are necessary. I beg to move.

[Baroness Lister of Burtersett (Lab)]

I want very briefly to support the amendment but also to remind your Lordships’ House that the Joint Committee on Human Rights expressed concerns about the implications of the Bill for freedom of association and freedom of expression. I would be very grateful if the Minister, in responding, could assure your Lordships’ House that the effects of the Bill on freedom of expression and association will be part of this review, the importance of which was underlined when discussed in Committee—although I do not think that this particular point was raised.

[Lord Wallace of Tankerness]

My Lords, as the noble and right reverend Lord, Lord Harries, has indicated, the Government brought forward at Report an amendment so that there will be a review. The Government are committed to appointing a person to undertake the review within 12 months of this Bill receiving Royal Assent. That came out of one of the meetings that we had with one of the campaign groups, which suggested that it might be useful to have someone in place during the election. We thought that that was a very sensible suggestion and one for which we have provided.

I have discussed with the noble and right reverend Lord, Lord Harries, the merits and demerits of perhaps putting more in the Bill about what the review might or might not do, and we concluded that the minute we start adding things it begs the question as to what has been left out. There is no intention to limit the review, and I take the point made by the noble Baroness, Lady Lister. If people wish to make representations on that point in terms of the review, we would not anticipate anything stopping it—certainly there is nothing in the Bill that would stop it. I emphasise, however, that we believe that freedom of association and expression are vital. They are not impinged by the Bill; rather, what we have is transparency. We are not trying to stop people campaigning, but if they are campaigning in a way that seeks to influence an election it is not unreasonable that that should be transparent.

The next scheduled general election will be the opportunity on which the Bill will operate, and will provide a timely opportunity to review the effectiveness of those controls. On completion the person conducting the review must produce a written report which must be published and laid before Parliament by the Minister. The noble and right reverend Lord, Lord Harries of Pentregarth, tabled the amendment proposing that the report must be laid before Parliament within 18 months of the general election. It is right that Parliament should have the opportunity to consider the outcomes of the review well before the following 2020 election. It is appropriate that the review is done to an established timetable, and the Government are therefore pleased to accept the amendment.

[Lord Harries of Pentregarth]

I thank the noble and learned Lord for accepting the amendment. I do not know whether he can give any kind of indication, or feels that he would like to at this stage, about the groups or constituencies of people who would be consulted as part of the review. Perhaps he is not yet in a position to do that.

[Lord Wallace of Tankerness]

My Lords, I do not want to pre-empt the person who is appointed to undertake the review or in any way constrain what he or she will do. It might be an opportunity to reiterate something, not just in the context of the review, but on the point made in the previous debate by my noble friend Lord Cormack. I accepted the point that he made on the constituency issues: there might be merit in having groups—not just parties, but campaigning groups—involved in any guidance that emerges from the Electoral Commission. I readily expect that any review would involve submissions from the political parties that have been involved in the election, from charities, non-charitable campaigning groups, and people who have something relevant to contribute. As I said yesterday, we can always bet our lives that some issue will emerge that none of us has thought about, in spite of our very exhaustive discussions and debates. That is why it is important not to be prescriptive.

[Lord Harries of Pentregarth]

I thank the Government for their willingness to accept the amendment.

Amendment 21 agreed.

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[Lord Harries of Pentregarth]

My Lords, concerns have been expressed about this government amendment allowing a Minister to have these powers on an Act which will go to the very heart of democracy—they are rightly called Henry VIII powers, I believe. The Government have given assurances that these powers are strictly limited and that they will consult the Electoral Commission. In view of the lessons learnt as a result of this Bill going through the two Houses, they may think that it is worth consulting more widely if they feel the need to bring orders before this House. It should be put on record that concerns have been expressed, but we are grateful, from what the Minister said, that the powers are strictly limited.

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[Lord Wallace of Tankerness]

My Lords, it is almost inevitable that concerns are expressed when an amendment of this nature comes forward. That is a quite proper function of the House, and the Government should be made to justify putting forward such an amendment.

First, I say to the noble Lord, Lord Campbell-Savours, that the proposed clause has nothing whatever to do with the fact that there will be Commons consideration of Lords amendments tomorrow. The concern is that because the agreement on the provisions relating to coalitions came so late in the day, we want to be certain that we can deliver the policy which we reassured the campaign groups that we would deliver, and that if things emerge at a later stage, not necessarily in the next 24 hours, there will be an ability to do so. I am reassured by the comments of my noble friend Lady Thomas that, as clauses of this nature go, this one is limited and consequential. Indeed, it has a sunset clause and I also welcome the fact that this was noted by my noble friend Lord Tyler.

My noble friend Lord Horam raised the Electoral Commission’s remit, which is being amended by Clause 38. The Government believe it is appropriate to emphasise the importance of the commission’s regulatory role and to remove any potential understanding of its responsibilities. Clause 38 requires the commission to,

“take all reasonable steps to secure”,

campaigners’ compliance with campaigning rules. The Bill further provides for transparency of the commission’s work by introducing a new requirement for it to set out in its annual report what steps it has taken to secure compliance with the relevant provisions of PPERA. By requiring an account of its activities, the Government are seeking to make clear that the commission’s work is vital and that its regulatory approach is being empowered by the Bill.

The point was made by my noble friend Lord Horam, and I have heard it mooted in other quarters, too, that every small, malicious or vexatious complaint or query would have to be investigated. We do not agree, as the provision in Clause 38 imposing a duty on the Commission to investigate complaints does not mean that the commission would have to investigate complaints that it knows to be unfounded, malicious or vexatious. However, I believe that any change to the Electoral Commission’s remit could and should form part of the review of Part VI of PPERA, to which your Lordships have already agreed and which was the subject of further discussion earlier today.

In relation to the Electoral Commission, perhaps I might also reassure the noble Baroness, Lady Hayter, of what I said in moving this amendment. We agree that it is important to consult the Electoral Commission before any use of the powers in Amendment 24. I assure the House that that is indeed what we would do before making an order under this power. My noble friend Lord Horam suggested that the power in this amendment might be used with regard to any changes in the Electoral Commission’s remit. In disappointing him, perhaps I might reassure the rest of your Lordships that we think it unlikely that any changes to the commission’s remit could be considered as consequential provisions under this power, and therefore would not be within its scope. However, it would be appropriate if the review we discussed were to look at the remit of the Electoral Commission.

Finally, I take this opportunity on this last amendment to say thanks to many people but particularly to your Lordships’ House for the scrutiny which the Bill has had here. I can say without doubt that the Bill returns to the House of Commons much improved, and in doing so we have shown evidence of the value and merit of the revising role that this House undertakes, which it does with great seriousness.

I acknowledge with thanks the kind words that have been said about my noble friend Lord Wallace of Saltaire and me. In turn, I thank the noble and right reverend Lord, Lord Harries of Pentregarth, and the noble Baroness, Lady Mallalieu, for their excellent work on the Commission on Civil Society and Democratic Engagement. They have made a valuable contribution to the work that we have done in this House. Along with them and other members of the commission, I thank the many organisations which have engaged with us and them: third-parties and campaigning groups, charities and non-charities, all of which have made an important contribution. We have not necessarily always agreed, but they have contributed to making the Bill better.

I also thank those who have contributed in other ways through amendments and speeches: the noble and learned Lords, Lord Morris of Aberavon and Lord Hardie, my noble friends Lord Hodgson, Lord Horam, Lord Tyler and Lord Cormack and the noble Baroness, Lady Hayter, as well as the noble Baroness, Lady Royall, and the noble Lord, Lord Stevenson, who have at times contributed to our debates. Although there are many people in your Lordships’ House who have had experience as Members of Parliament, the noble Lord, Lord Martin of Springburn, brought a welcome reminder in his contributions that these are practical provisions which affect people who actually fight elections.

I also thank my noble friends on the ministerial Bench, Lord Wallace, Lord Gardiner of Kimball and Lord Younger of Leckie. I also acknowledge the tribute paid by the noble Baroness, Lady Hayter, to the officials—some in the Box and some not. On their behalf—because, obviously, they cannot speak—I express appreciation of that and add mine. They have worked with considerable equanimity and good humour. At least one of them attended almost every meeting which we have had with groups and they have assisted my colleagues on the ministerial team greatly. I certainly very much value the work that they have done and the very long hours, including over Christmas and New Year—one sometimes noticed the times and dates when e-mails were sent. I express appreciation for that.

Having said that, I very much hope that your Lordships will agree to the amendment.

[Lord Harries of Pentregarth]

My Lords, before the noble and learned Lord sits down, I gave a range of thanks before and I shall not repeat them, but there is one group of people who have not been mentioned and thanked. For a person who is not a very experienced parliamentarian, such as me, those people been particularly helpful. They are the staff of the Public Bill Office. They have been very helpful in guiding me on what might be allowable and possible. I express my thanks on behalf of others to them.

Amendment 24 agreed.