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

Lord Hardie Excerpts

Monday 16th December 2013 Lords Chamber

Moved by

[Lord Hardie]

159A: Clause 26, page 12, line 35, leave out “intended” and insert “having as its principal purpose the intention”

[Lord Hardie (CB)]

My Lords, in speaking to this amendment, I will also speak to Amendments 159E, 159F, 160D, 160E and 160F. As this is the first time for me to speak about this part of the Bill, I should declare an interest as honorary president of Capability Scotland, a charity that is concerned with provision of services and support for multiple-handicapped people.

Controlled expenditure requires two elements. The first is that the activity resulting in the expenditure must be within the definition of what is controlled. Secondly, the expenditure must reasonably be regarded as intended to promote the electoral success of one or more registered parties or candidates within certain categories. Section 85 of the 2000 Act is restrictive in its scope. It confines controlled expenditure to the production or publication of election material made available to the public or sections of the public. In that situation it would be relatively easy to assess objectively whether the intention of the published material was to promote the electoral success of individuals or registered parties. However, Clause 26(2) of the Bill extends the meaning and scope of controlled expenditure by expanding the activities from the mere production and publication of election material to include the various activities listed in Part 1 of new Schedule 8A to the 2000 Act added by Clause 26(2)(a) and Schedule 3. These activities include market research, public meetings, rallies and media events.

Many organisations with a legitimate interest in the democratic process indulge in such activities at different times. For example, charities and others may be involved in campaigns throughout the year, highlighting the plight of those in our society who are poor, homeless or otherwise disadvantaged, including the disabled. These campaigns might intensify at Christmas and throughout the winter months when the consequences of having no shelter or hot food are more acute. At other times, they may concentrate on the inability of the poorer members of society to afford heat, light or other basic essentials. These activities are not associated with elections and they are not confined to the year immediately preceding an election.

A campaign to make poverty history in our society might suggest various solutions directed at unemployment, the level of wages and benefits, the price of energy or other measures. It might involve organising public rallies and media events. If such a campaign started before the commencement of the regulated period before an election, expenditure could be incurred with impunity, but one might expect such a campaign to continue during the regulated period in the lead-up to an election. If that happened, different issues would arise.

If the organisers considered that there was a risk that their activities might be interpreted as having an intention to favour a candidate or a party at the forthcoming election, they would be obliged to incur the cost of the administrative burden imposed by the Act of having systems and personnel in place to comply with the Act and make the return. If they genuinely believed that they were not covered by the Act, but ultimately found out they were wrong, as I will explain later, they would face prosecution and a criminal penalty.

Similar consequences would apply to local campaign groups concerned about a local issue, such as the threatened closure of their hospital, the route of HS2 through the constituency, fracking or the existence or otherwise of wind farms. If no party or candidate had policies about such matters, the local campaign group, or the charity, as the case may be, could spend money without fear of contravening the rules about controlled expenditure, but what if—and this is a point that was raised on the previous amendment—a candidate with such policies emerged after the start of the regulated period or an existing candidate adopted them in the course of his campaign? The intention of the campaign by the local group or charity would not have altered, but the organisers would risk prosecution if after that time they continued to incur expenditure without complying with the provisions about controlled expenditure, the reason for that risk being that it might be argued that a subsidiary intention of the campaign was to procure the electoral success of the candidate who had adopted it, even if he or she were not mentioned. While such an intention may not be the aim of the organisers of the campaign, and might not even be in their contemplation, it may be a consequence of their campaign. In that situation, if an objective evaluation of the case resulted in the conclusion that such an outcome could reasonably be regarded as a subsidiary intention of the campaign, the consequence would be a criminal conviction and a financial penalty for those responsible for the campaign.

The risk of such consequences might well induce organisers of a campaign to abandon it in the regulated period prior to an election. That cannot be desirable. We should encourage participation in the democratic process, particularly in the period immediately prior to an election. We should not threaten with prosecution campaigners who are genuinely concerned about social, local or other issues of genuine concern to the electorate.

I accept, of course, that there have to be some controls but where the scope of controlled activity is being extended as widely as in this case, the control should be proportionate and we should make some allowance for the genuine subjective intention of campaigners. We can achieve that balance by restricting controls and consequential offences to expenditure where the principal purpose of the expenditure is to achieve electoral success for candidates or parties. This is the aim of my Amendments 159A, 159E, 159F, 160E and 160F.

If the noble and learned Lord the Advocate-General does not favour this solution, perhaps a more acceptable one would be to introduce a statutory defence to any criminal offence, similar to my Amendment 160D. If that route were preferred, I accept that it would necessary to redraft the clause as it currently includes a reference to the principal amendment. Without such a defence, we risk criminalising campaigners who are genuinely concerned about issues that matter to the electorate and do not seek to promote the electoral success of a candidate or candidates or a political party or parties. I beg to move.

[Lord Walton of Detchant (CB)]

My Lords, this amendment and the subsequent ones, such as that carefully drafted by the noble Lord, Lord Greaves, give me the opportunity of raising an issue of concern to a number of charities. Much has been said about the role of charities in respect of lobbying activities and a number of reassuring comments have been made during early stages of this Bill. However, I am particularly concerned about the activities of all-party groups within Parliament. Many of these groups are in the medical research field and are serviced and provided with financial, secretarial and other support by charities. They are dependent on this to a considerable extent. Of course, one would say at once that if they are all-party groups and their membership includes Members of the Commons and of this House from all parties, surely they cannot be construed as lobbying in search of electoral success. That is an entirely reasonable conclusion to draw. However, there is always a possibility that a particular all-party group may be so dominated by members of one political party that its attitude to an approaching election could change quite significantly.

I want to give noble Lords an example. I speak as the life president of the Muscular Dystrophy Campaign. I served on an inquiry by the All-Party Group on Muscular Dystrophy, which conducted a lengthy inquiry over a 12-month period, rather like an inquiry by one of your Lordships’ Select Committees. It took a great deal of written evidence and held public meetings to which a number of witnesses were called. The Muscular Dystrophy Campaign covered the costs, including the expenses of those giving evidence. We discovered in that inquiry that boys with the most severe form, Duchenne muscular dystrophy, who, when I started work in that field in 1950, were dying, often grossly deformed, in their teens, were now, with greatly improved care, living into their 30s and some even into their 40s in places such as Newcastle, Oxford, Queens Square in London, Oswestry and a number of other centres, with wonderful rehabilitation and respiratory support.

However, that inquiry demonstrated that in the south-west many of them were still dying in their teens. That was also true in the north-west. When we produced this report, which went to all the major health bodies across the country, and it went to the South West Strategic Health Authority, the executive director, Sir Ian Carruthers, was so shocked that it immediately put another £1 million into care for patients with muscular dystrophy and other neuromuscular diseases in that area. Mike Farrar, then the chief executive of the North West Strategic Health Authority, said that anything Ian Carruthers could do, it could do better, so it put money into those services in that area.

That was clearly lobbying with a view to improving services and influencing the activity of health service organisations. There are a number of people working on that and many other charities to do with things like stroke, multiple sclerosis and Parkinson’s disease, and another inquiry into Parkinson’s disease has just been conducted, demonstrating a similar unevenness of standards of care across the country. The question is whether the all-party groups serviced by these charities are at risk under the Bill. It is crucial that we have an answer from the Minister about this. Many of the charities which service the all-party groups have expressed serious concern that their activities might be adversely influenced by the provisions of the Bill.

--- Later in debate ---

[Lord Wallace of Tankerness]

I find it difficult to see how an all-party group, supported by all parties, would fall foul of something, because by its very nature that would be difficult. The noble Baroness raises a point that was at the core of the points made by my noble friend Lord Tyler about when there is a change in a particular policy. This brings us to an important issue about what should be in the Bill and what should be left to guidance. This point was also made by the noble and learned Lord, Lord Hardie, who asked about groups changing their policy position in the middle of the controlled period.

[Lord Hardie]

I was not speaking about a group changing its position but about a group remaining constant and a candidate then adopting the campaign. I accept that retrospectively the expenditure is protected, but what about prospectively? What about future expenditure?

[Lord Wallace of Tankerness]

I apologise; I misrepresented the point. What happens if the group maintains its campaign and one party suddenly comes on board and, presumably, one party breaks rank and retreats? The Electoral Commission’s guidance is clear that if a party or candidate subsequently adopts a campaigning organisation’s policy, it will not be caught unless the campaigning organisation draws attention to the fact or increases its campaigning as a result. In addition, a group must be reasonably regarded as intending to procure electoral success. If at the time a party or candidate does not have a policy on the subject of the organisation’s campaign, it is very difficult to see how it could be seen to be promoting that candidate or the party. Indeed, it would seem to be impossible to objectively argue that a policy campaign by a third party could be intended to favour a party or candidates if those parties’ or candidates’ views on the policy were unknown at the time.

A question was also asked about the scorecard count. A third party setting out a scorecard 11 months before an election could reasonably be regarded as trying to get parties to change their policy, not necessarily to promote electoral success. However, a third party publishing a scorecard a week before election day might be regarded as promoting the electoral success of a party or candidate.

The noble and right reverend Lord, Lord Harries, put his finger on it by saying that many of the groups he has talked to would rather that this was in legislation. On the scorecard issue, I sought to show that there were shades of this. It can sometimes be very difficult if you try to pin it down too much in legislation. Often when we legislate with specific examples—I have heard this on other subjects in your Lordships’ House—we can do more damage and cause more uncertainty by what is left out than by what is there. It does not allow the flexibility to take full circumstances into account.

What has been raised is a perfectly legitimate point for this Committee to express views on. We as a Government should consider whether it is better to have these things set out in statute, subject to the misgivings that I have expressed about inflexibility—once it is there, it takes primary legislation to repeal it—or whether it is better to allow that position to be determined by guidance.

The next paragraph in the report from the Committee on Standards in Public Life states:

“That said, we acknowledge, of course, that in some cases it will be hard to determine whether the advertising and other propaganda undertaken by an individual or organisation other than a political party is or is not intended to affect an election outcome. Ultimately it will be up to the courts to decide in such cases, but one role we envisage for the Electoral Commission”—

which did not exist when this was written—

“is in giving authoritative but not legally binding advice on such matters”.

It would appear that those who set all this in motion some 15 years ago saw giving guidance as a proper role for the Electoral Commission. As I indicated in my opening remarks on the previous amendment, we engage with the Electoral Commission and believe that it would be helpful to have draft guidance available. I also accept—this is something that we want to reflect on—the views that have been expressed in the House that some of this would be better put in primary legislation. That said, as I indicated, there are drawbacks with that as well.

I hope that in that spirit I can invite the noble and learned Lord, Lord Hardie, to withdraw his amendment.

[Lord Hardie]

I thank noble Lords on all sides of the House for participating in this full and interesting debate. It is quite clear that there is a certain consensus that it is essential we get the balance right in the Act, avoid unintended consequences and clear up grey areas. I note from the noble and learned Lord the Advocate-General that the Government will consider the extent to which the legislation should be amended. In light of that, I will reflect on everything that has been said today. In the mean time, I beg leave to withdraw the amendment.

Amendment 159A withdrawn.