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

Lord Cormack Excerpts

Tuesday 21st January 2014 Lords Chamber

As the noble and right reverend Lord, Lord Harries, said, the Electoral Commission supports this amendment; indeed, he read out its words. It has played a part in approving the drafting. I hope that the Government will support it and, if a vote becomes necessary, that the House will.

[Lord Cormack (Con)]

My Lords, I shall not detain the House for more than a few moments. I put my name to the amendment for all the reasons that the noble and right reverend Lord, Lord Harries, and the noble Baroness, Lady Mallalieu, so splendidly and lucidly outlined. I will underline just one point, which was touched on by the noble Baroness in her concluding words. We have established in this country an Electoral Commission. It surely makes no sense to fly in the face of the commission and make its work more difficult and more complicated when it will have a difficult enough task monitoring the election in May 2015. My noble and learned friend, who has been extremely helpful and has listened with care, has come back to us with a number of improvements to this very unsatisfactory Bill—he himself has made it much more satisfactory than it was when it first came before your Lordships’ House—but I urge him to go just one step further and accept the good sense that is contained in this amendment, and to bear in mind that it has been in part drafted, as the noble Baroness said, by the Electoral Commission. We should listen to its sage advice and incorporate this amendment in the Bill.

[Lord Martin of Springburn (CB)]

Does the noble Lord envisage the third party groups being registered charities? Does he see any inhibition on a third party group being a registered charity?

[Lord Cormack]

I suppose that the answer to that question, which is a perfectly reasonable one for the noble Lord, Lord Martin, to ask, is that some would perhaps be eligible but others would not. We know from what we have debated in this Bill that not every such body can become a registered charity; it depends on what the aims are. It is possible that some could, but certainly not all of them.

[Lord Tyler]

My Lords, in respect of the comments made a few moments ago by my noble friend Lord Cormack about the Electoral Commission, perhaps I should put on the record that I sit on an informal cross-party advisory group for the Electoral Commission. It is not a pecuniary interest, but it means that I take very seriously its advice.

As the noble and right reverend Lord, Lord Harries, said, Amendment 11 builds on my own amendment on Report last week, and on Amendment 170A in Committee, and I welcome the fact that it is still here for our discussion. However, I believe that too much building has taken place, and I regret to say that I think that the lawyers have been too clever by half. The purpose of my amendment was to simplify drastically the operation of the constituency limit. I wanted to do away with any need for anyone to work out what did or did not have a significant effect on whom. That was the previous test, which I thought was extremely ineffective and very difficult for small organisations to address without great bureaucracy.

In my estimation, if election material that can reasonably be regarded as seeking to promote or procure the electoral success of a party or candidate has been sent directly to an elector in a constituency, it should be counted under the relevant constituency limit. That seems to be a very simple test. Likewise, if unsolicited telephone calls are made to ascertain or influence voting intentions, it is easy to know where the people whom you are calling live and to allocate those costs to a constituency limit. The amendment on Report was about simplicity.

However, my noble and learned friend the Minister made a compelling point on Report last week. He said that materials could be distributed within a constituency other than by delivering them directly to electors’ homes—they could be handed out in town centres, for example. The noble and right reverend Lord, Lord Harries of Pentregarth, has rightly tried to meet that point in proposed new sub-paragraph (1) of his amendment, but the complication of considering whether materials handed out in a town centre are trying to influence a constituency result has led him and his advisers to complicate the amendment with proposed new sub-paragraphs (2) and (3) of the amended schedule. Therein lies a problem.

The cumulative effect is to ask those campaigners—many of them small operations, as we have been constantly reminded—to consider their spending against not one test, as I advocated last week, but three. First, there is my test, which I have already given: are the phone calls and election material directed at a particular elector or household? That is easy. Then we have in this amendment, secondly: does the material have a significant effect just in the constituency to which it was sent? Who can tell? When can they tell? Perhaps they can tell only after polling day. Therein lies another problem. Then there is the third qualification: can it reasonably be inferred that the third parties selected the electors in order to contact electors in that constituency,

“and not a wider section of the public”?

Who will adjudicate on that and when?

I do not know how one can be sure of either of the latter tests, either in terms of the Electoral Commission and its very proper responsibilities, to which my noble friend Lord Cormack has just referred, or of the organisations that have been in touch with us over the past few weeks. I can see that it may be necessary in relation to the narrow issue of handing out leaflets in a town centre. After all, leaflets handed out in the town square of my old North Cornwall constituency would almost certainly be directed at North Cornwall’s results and voters, but leaflets handed out in Trafalgar Square might not be directed only at voters in the City of London and Westminster.

That is a problem—one brought about by the Minister’s legitimate concern about the distribution of leaflets in a town square. If we had more time for drafting, I would be able to find some additional tests, but only for this additional activity of handing out leaflets rather than for all deliveries that could take place. It is a rather complicated point and I apologise for that to Members of your Lordships’ House—but it is an important one.

As the amendment is drafted, it means a loophole is created, permitting direct communication with voters outwith the constituency limit because it could somehow be deemed under sub-paragraphs (2) and (3) of the amended schedule that the materials sent to them were not really supposed to influence the constituency result. I do not buy that, and at this stage it leaves a real lacuna. If you write to a voter in a constituency to promote or procure the electoral success of a party or candidate, I am confident that you are trying to promote or procure their electoral success in that constituency. That is a simple rule, and one it would be simple for campaigners big and small to follow.

At every stage of the Bill, from Second Reading right through to Report last week, I have been concerned to simplify and clarify the requirements placed on campaigners, reflecting what they—the campaigners, who are charities and other organisations—have said consistently to me and my Liberal Democrat colleagues in both Houses, and no doubt to many other Members of your Lordships’ House. None the less, I regret the position we are now in since I have pursued this issue right from Committee.

I return to the point made by my noble friend Lord Cormack: the Electoral Commission still says that it has concerns about the enforceability of a constituency limit. There needs to be a constituency limit. A revised amendment along these lines would make that more effective and much easier to enforce. Combined with the sensible changes to the constituency threshold that I outlined in the debate on the previous group of amendments, the whole regime would be much tighter and more workable, which is what the Bill sets out to achieve.

Following up on the point made by my noble friend Lord Cormack, I promised to refer to the advice given to us by the Electoral Commission. At the end of its advice to us for today, referring to Amendment 11, it said:

“We think this amendment would reduce this problem, but in practice it will still often be difficult to obtain adequate evidence of a breach at a constituency level and deal with it before polling day”.

That is an extremely important point. To that end, I hope that my noble and learned friend the Minister will respond positively to this amendment, even if it means that some simplification must be achieved in the other place tomorrow.

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[Lord Wallace of Tankerness]

My Lords, I thank the noble and right reverend Lord, Lord Harries, for this amendment and for the opportunity to discuss these issues on constituency limits. It is an issue that has featured in discussions not only today but at previous stages of the Bill’s passage. It is appropriate that we give consideration to this, which members of the commission might see as the outstanding item still to be addressed. The amendments are very similar to those tabled by my noble friend Lord Tyler on Report. My noble friend’s amendment, which we discussed last week, sought to narrow the range of activities which would be considered controlled expenditure for the purposes of constituency limits. Although I made no commitment on the part of the Government to returning to this at Third Reading, I indicated at the close of the debates on Report that we would ensure that officials raised these matters with the Electoral Commission.

I understand the point about simplicity. We have sought in many respects to reduce the administrative burden, but it was clear from the discussions that took place subsequently with the Electoral Commission that there was no technical fix. My noble friend Lord Tyler was almost asking me the same again at the end of his contribution to the debate on this amendment. There was not a technical fix but there might be a policy fix. It is a policy fix that is inherent in the amendment of the noble and right reverend Lord, Lord Harries, which would remove some categories of expenditure from being counted towards the constituency limit. For reasons that I will explain, the Government are unable to accept that there should be that policy switch.

First, I acknowledge that, in moving the amendment, the noble and right reverend Lord, Lord Harries, accepted the principle of constituency limits and sought to address one of the points of concern I had raised with regard to the amendment of my noble friend Lord Tyler. He also sought to address the practical issues raised by the Electoral Commission. In the context of trying to relieve some of the administrative burden—going back to the earlier debate, just to remind your Lordships’ House—it is also important that the original proposals had a limit for the constituency spending and a smaller limit for the post-Dissolution period. There was a much smaller limit for campaigning activity that could be spent between the date of the Dissolution of Parliament and the election. We have taken away that interim threshold, again in an effort to help smaller organisations which may be campaigning in one constituency.

We believe that these amendments would require that any expenditure on election material addressed or delivered to households, and any unsolicited telephone calls made with a view to ascertaining households’ voting intentions, would be attributed to a particular constituency or constituencies for the purposes of the limits. The noble and right reverend Lord’s intention appears to be that only expenditure on such activities should count towards constituency limits. He goes further than my noble friend Lord Tyler did last week to suggest considering the costs associated with the distribution of materials otherwise in a constituency—which was the example I gave. I fully accept the example that I gave of activity in a shopping centre, which clearly would relate to the one activity.

I was somewhat bemused by the point made by the noble Baroness, Lady Mallalieu, when she complained that there was a loophole. It appears to me that if you take away other activities which have to contribute towards controlled expenditure, the loophole gets bigger. She indicated that it could be a loophole to have a rally just over the constituency boundary. First, whether a rally against a hospital closure that promotes the electoral success of one particular candidate counts towards a constituency limit depends on whether it has a significant effect in that constituency. Albeit that it takes place over the boundary in a neighbouring constituency, it could still have a significant effect in the first constituency and would therefore come within it. Of course, the loophole that would be created by this amendment would be the rally in the constituency itself—over the boundary it would not count at all. I believe that is a criticism: there are activities that would not therefore come within the definition of “controlled expenditure”.

Constituency limits for third parties mean that they cannot outspend and overwhelm candidates and political parties, who after all are the main actors in an election. The noble Lord, Lord Martin of Springburn, made an important point, reminding us that elections are about the names of candidates on the ballot paper. It is not right that a candidate or a party campaigning in a constituency could be targeted by a third party with greater means and a greater spending limit at its disposal.

Taking into account both the long and short campaigning period limits, the most a candidate at the last parliamentary general election could have spent was £55,000; that is for the entire period. I may have misunderstood what the noble Baroness, Lady Mallalieu, said, but I thought she said at one point that parties could spend without limit. That is not the case. There is a limit on political parties. Indeed, in the course of the election period—the short campaign from the Dissolution of Parliament—it is roughly £12,000 to £13,000, depending on the number of electors, a figure that was mentioned by my noble friend Lord Cormack in one of our earlier debates.

However, a third party could choose to spend the entirety of its current spending limit in one small area, campaigning against that and other candidates or the parties they represent. That could be very substantial if one allows a range of activities not to be in any way brought into controlled expenditure. We have previously heard concerns that third parties, although an important part of the democratic process, can also be so closely aligned to a political party as to be effectively campaigning to promote that party. It is right that we take account of that. That is why the Bill introduces a number of provisions to give greater transparency to the activities and expenditure of third parties. The limits on constituency spending are a key element of the entire package in the Bill. The controlled expenditure incurred on the entire range of activities, not just those few proposed by the noble and right reverend Lord, Lord Harries, should be attributable to constituency limits.

Third parties are not merely in the business of distributing leaflets. They arrange and hold events, rallies and press conferences. They bus campaigners from area to area, delivering large groups of people to distribute those leaflets, or to take part in rallies or other events. Not to include these activities would mean that third parties could still continue to hold local media events on a weekly, or even daily, basis in the run-up to an election without any of that expenditure being brought within controlled limits. It would mean a third party could hold a rally on the eve of an election, secure in the knowledge that it need not account for the cost other than on a nationwide basis. It would mean that a third party could bus hundreds of campaigners into marginal constituencies and overwhelm the work of the candidates in that constituency.

These are all significant activities, and it is right that third parties should be required to account for them on a constituency basis. Narrowing the scope of constituency limits would address only half the problem. On that basis, recognising that in an election the actors are the candidates themselves, it was unfair, particularly in the period from the Dissolution of Parliament until the election, that they were limited to a relatively small sum of money—£12,000 or £13,000—while if you got two third-party groups in the same constituency, they could spend up to £19,750. We do not think that it is reasonable that a loophole should be created.

[Lord Cormack]

I would be most grateful if the Minister would reflect on one suggestion. I think that he would agree with me that Clause 29 is not the easiest of clauses to understand, particularly for those who are not familiar with legislative language. Would the Minister be prepared to have a conference with the Electoral Commission to try to draw up some mutually agreed guidelines to, and interpretation of, this new law? It is very important, and that would be extremely helpful—particularly bearing in mind that we have this ridiculous businesses of the Bill being in another place tomorrow. I cannot see the reason for that; maybe the Minister could comment on it.

[Lord Low of Dalston (CB)]

Before the Minister finishes his speech, may I, too, ask him a question, to which I would be grateful for a response? All the examples that he has cited seem to be hypothetical. What examples does he have of the kind of conduct that he is railing against actually taking place? Where is the mischief that he seeks to legislate against?

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[Lord Cormack]

My Lords, very briefly, we are much indebted to my noble friend Lord Horam for what he said. He has clearly demonstrated admirable restraint during this Bill, knowing—as he has now made clear—that the Electoral Commission was far from happy and that he, as a member of that commission, shared at least some of that unhappiness.

This is an object lesson in how not to do things. I warmly commend my noble friend and my noble and learned friend—the brace of Lord Wallaces—for all they have done to make a very bad Bill palatable. They have exercised infinite patience, great care and unfailing courtesy, and we should all be extremely grateful for that. But that does not absolve the Government from blame for bringing in a Bill of this complexity in this way. I have said before, and will say again for the final time on this Bill, that if ever a Bill cried out for pre-legislative scrutiny it was this one. I sincerely hope that that lesson has been learned and that in future complex Bills of this nature, touching as they do on constitutional and parliamentary issues, will have the benefit of pre-legislative scrutiny. We have had a series of patch, make-do and mend amendments, many of them introduced by the noble and learned Lord, Lord Wallace, himself. I repeat: we are grateful for that, but that is not a substitute for a carefully drawn-up Bill that really meets a need.

My noble friend Lord Horam touched on the complexity of the Bill. Legislation should be readily understandable by those to whom it applies. When one brings in a whole range of new provisions that many of the bodies with which the noble and right reverend Lord, Lord Harries, has been involved never anticipated, they really should have the benefit of consultation. We now have placed before us what is a bit of a catch-all, Henry VIII clause. In principle I do not like Henry VIII clauses, but I concede that in this particular Bill something like it is probably necessary.

I am grateful to my noble and learned friend for responding so positively to the suggestion I made earlier about a round-table conference. That is good and he rightly said in that context that he wanted to go beyond the Electoral Commission. It is also very necessary that there are detailed discussions with the Electoral Commission directly. I suggest those involve leaders of the Opposition, too, because this Bill is likely to last quite a long time. As it is worked through, we need to make sure that all—or most of—the things we have said we feared do not come to pass.

My final words on the Bill in this House are that this has been an interesting exercise. I do not believe that we have produced something truly worthy of the important subject, but I agree with my noble friend Lord Horam that we have been able to demonstrate the value of this House in making a very bad Bill palatable in the way we have.

[Baroness Thomas of Winchester (LD)]

My Lords, I dip the tiniest of toes into the waters of this Bill, not as chair of the Delegated Powers and Regulatory Reform Committee but as somebody who knows a tiny bit about Henry VIII clauses, just to reassure noble Lords that this kind of power is well precedented and here it is very narrowly drawn. The House need not worry that the Government are in some way exceeding their powers or doing something they should not on this occasion. That is all I wish to say on this, but it has been very instructive to sit here and listen to the last few hours of debate on the Bill.