Elections Bill

Lord Hodgson of Astley Abbotts Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 15th March 2022 Lords Chamber

Moved by

[Lord Hodgson of Astley Abbotts]

33A: Clause 24, page 33, line 26, at end insert—
“(za) could not reasonably be expected to have known they were campaigning within a regulated period,”Member’s explanatory statement
This expands the conditions under which a third party may incur controlled expenditure during a regulated period.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, in moving Amendment 33A, I will speak also to Amendment 39. I am very grateful to the noble Lord, Lord Blunkett, for putting his name to the first of those. He has emailed me to say that he is very sorry that he cannot be here and has asked me to apologise to the Committee on his behalf.

This is the first amendment that I have moved. I beg the indulgence of the Committee for a moment so that I can briefly explain the background to all the amendments I propose to this section of the Bill. This preamble will serve as a preamble to all the other amendments we will come to on Thursday—Amendments 39A, 45B, 48A and 54A—and I will therefore foreshorten my speeches on that occasion.

As I explained at Second Reading, I was appointed by the Government to undertake the official review of Part 2 of the inelegantly named Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014. Section 39 of that Act required the Government to appoint a person to undertake a review of Part 2 of that Act in the light of the 2015 general election. My report, in the preparation of which I was greatly helped by a tremendous team from the Cabinet Office, was published in March 2016 and entitled Getting the Balance Right.

What is the balance we should seek to achieve? If we all agree that a vibrant civil society is a really important part of a vibrant democracy, in which everyone feels that they have a chance to have their voices heard collectively as well as individually, we need to ensure, on the one hand, that civil society organisations can speak truth to power—power does not always like having truth spoken to it—and on the other that the activities of those organisations are subjected to a proper degree of transparency. That is the balance that my report sought to achieve.

Finally, I make it clear that all my amendments are probing at this stage. I am looking forward to hearing how the Government react to the shape of the amendments I am putting forward before we get to the next stage.

So with that, to horse. These amendments are concerned with what is known as the regulated period. Members of the Committee will be familiar with the regulated period, but for those who are less familiar I will give a very quick summary. The regulated period is the period during which a third party has to keep a total of all qualifying expenses, which are those that can reasonably be regarded as intended to promote a person or procure electoral success at any relevant election. We shall come back to the intent test later, but the Committee can already see that this will not be as simple as it might be.

Accurate data is very important for third-party campaigners, because the total will determine what category of regulatory regime they come under. Nought to £9,999 means there will be no regulation at all. From £10,000 to £19,999 is the new lower tier; and above £20,000 is the tier that exists, which will continue under the Bill and which requires full registration.

The regulated period was set in the 2014 Act at 12 months. The Bill does not plan to change it. There is a strong argument that this is too long a period. It does not reflect the realities of political life outside the Westminster/Whitehall bubble and it imposes a considerable administrative burden on third-party campaigners, especially smaller ones. As such, it might serve to inhibit third-party campaigning unnecessarily.

Let me explain my thinking a little further. It is important to be clear about what the Government’s legislation seeks to achieve and, in consequence, what it seeks to capture. The strategic, overarching approach must be to increase transparency and reduce the possibility of undue influence.

Most third parties tend to have a primary purpose not connected with campaigning at elections. Only a few third parties have been set up solely to campaign, and we were dealing with some of the by-products of that in the amendments that we have just been discussing. I argue that you can divide the activities of a third party into three broadly discrete areas. The first I describe as advocacy, which can be seen as business as usual. This is the work that a charity or voluntary group does year in, year out: the regular pattern of events and activities, such as setting up branches, recruiting people and trying to get some local or national press. In many cases, it is the bread-and-butter purpose of the particular organisation’s existence.

The second part is what I call political campaigning, which comes more directly in the run-up to a general election. It particularly seeks to attempt to influence the wider debate and political process, to shape the form of the debate and hopefully—this is the gold standard—get one of the major political parties to put some aspect of the third-party campaigner’s objectives into the party manifesto. Of course, the targets of this are primarily Ministers, MPs and Members of your Lordships’ House. I argue that people in that particular category should be well able to look after themselves and aim off if they are being unduly pressurised.

The third area is electoral campaigning, which is activity intended to influence people’s voting choices in the run-up to and during an election, at a time when the general public, defined as the people in the saloon bar of the Dog and Duck or on the Clapham omnibus, are switched on and are thinking about and interested in the political process. So the three key elements can be identified in any campaigning as: when the campaigning is taking place, who the audience is and whether the intent is to influence that audience.

In my view, the regulation of third-party campaigners should be only in respect of electoral campaigning—that is, activity intended to influence people’s voting choices in the run-up to or during an election campaign. It should not be seeking to capture or deal with business as usual advocacy or political campaigning.

So when does the electoral campaigning period begin? In the review, I found little evidence—none, really—of electoral campaigning by third parties a full year ahead of the general election. Such research as there is suggests that, outside the Westminster village, the level of interest among the general public in the campaigning activities of third parties, other than in the immediate period, is very limited. Indeed, you could argue that, if you are doing it, you are probably wasting your money.

So what should then be an alternative period to 12 months? Well, we are exceptionally lucky because we have some real-life examples of alternative periods. The regulated period for the devolved legislatures is four months. My noble friend will no doubt say, “Well, that’s devolved Administrations. It isn’t the same as a national event”. But the regulated period for European elections, when they were held, was also four months, and they were national elections. It is not clear to me why a UK general election should have a regulated period that is three times as long as those required in Scotland and Wales, particularly as I have found no evidence of third-party campaigning abuse in elections in those devolved Administrations with only a four-month regulated period.

That takes me to Amendment 39 first—the other one that I am speaking to—which, quite simply, reduces the regulated period from 365 days, or one year, to 120 days, or four months. In one stroke, the bureaucratic burden on third-party campaigners is reduced, without any reduction in effective regulation, in my view.

But, in the spirit of constructive ingratiation that every Back-Bencher should adopt when he is seeking that the Government follow his point of view, I have also tabled Amendment 33A, which takes a different approach, although it has the same objective of clarifying the position of those third-party campaigners. Proposed Section 89A in Clause 24, on exemptions from restrictions, says:

“No amount of controlled expenditure may be incurred by or on behalf of a third party during a regulated period unless the third party”—


after which my amendment would insert the words

“could not reasonably be expected to have known they were campaigning within a regulated period”.

In other words, you give them a general bye because they could not have known.

--- Later in debate ---

[Lord True (Con)]

My Lords, I will stand corrected if it is not the case, but the principle of a 12-month regulatory period has been in place for more than 20 years. That is the advice I have and if I am wrong, I will gladly correct that; no doubt my noble friend behind me will correct me very fast.

The closely related Amendment 33A seeks to create an exemption from expenditure rules for third-party exempt campaigners where they could not reasonably be expected to be aware that they were campaigning during a regulated election period. One understands the arguments that were put, but regulated periods have been in place for years. Third parties engaging in election campaigning should be aware of the rules and of the existence of regulated periods. However, the Electoral Commission has produced extensive guidance to help third parties understand the rules. It states:

“Most campaign activity undertaken before an election is announced is unlikely to meet the purpose test”.


It is an important test that is specifically intended to protect civil society, because

“you are unlikely to be reasonably regarded as intending to influence people to vote in an election when you do not know or expect that the election is happening.”

I have heard arguments around the corner of that, but the basic principle of the purpose test is there, and therefore the Government do not accept the idea that regulated periods for third parties are overly burdensome. It is important that spending is regulated and transparent and it is right that spending that promotes a political party in the lead-up to an election is regulated, whether that is undertaken by the party itself or by a third-party campaigner. Therefore, with great respect, I fear that I cannot accept my noble friend’s amendment and ask him to withdraw it.

[Lord Hodgson of Astley Abbotts (Con)]

I thank noble Lords who have participated in this debate. The noble Baroness, Lady Lister of Burtersett, and I can disagree violently, have done and will no doubt do so again in the future, but sometimes we can agree violently, and I am glad that tonight is one of the evenings when we do. I thank her for coming along at 9.20 pm to lend her support. The noble Lord, Lord Wallace of Saltaire, is quite right to remind us that third-party campaigners can be self-regarding and feel that they are by definition good. They are not all good, and we always need to bear that in mind. As I have said before, they are not populated entirely by angels. The noble Lord, Lord Collins, made a point about inadvertently catching people who are trying to do their best, but it all goes wrong.

I would not be happy about linking this to the calling of a general election. Some general elections come out of blue, but usually there is a period of electoral tension building up, and that is when efforts that would be part of electoral campaigning mode could be made. Not always, but most of the time, elections build up a bit and you know a month or two beforehand that something is likely to happen. That is why I think that four months is the right period.

However, my noble friend is not going to accept these proposals. He is entirely right to say that the Electoral Commission has worked hard on guidance. This takes us back to the old question of whether the guidance will hold true when something goes wrong—but the commission has tried very hard and I want to put that on the record.

As far as the period is concerned, 2014 made it the law; before that, it was practice. I, too, stand to be corrected. It had been understood that a year was about the time we should be keeping an eye open but, from the 2014 Act, it was the law. I can only say that “What we have, we hold” is not always a good answer. I do not think that it is a good answer here but, for the time being, I beg leave to withdraw the amendment.

Amendment 33A withdrawn.