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

Debate between Lord Hodgson of Astley Abbotts and Baroness Royall of Blaisdon

Wednesday 18th December 2013 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, it is a pleasure to follow the noble and learned Lord, Lord Hardie. Amendment 175 picks up the early part of Amendment 170J and seeks, as a probing amendment, to require the production of joint guidance between the Electoral Commission and the Charity Commission. During all the debates on Part 2 of the Bill, the underlying theme has been the practical implications for individual charities, especially smaller ones, many of which—as has been pointed out on several occasions—were not yet aware of their responsibilities. As the noble Lord, Lord Phillips, pointed out on Monday, the overwhelming proportion are run by people of the utmost integrity. The challenge is how to do this so they can discharge their responsibilities at minimum commensurate cost and disruption.

As we have discussed, there is guidance. The oft referred to CC9 from the Charity Commission is 35 pages long but is commendably clearly written and laid out. There are two parts to the Electoral Commission’s guidance: one is entitled Overview of non-party campaign material and the other is on non-party campaigners. That runs to another 15 or 20 pages, so we are talking about something north of 50 pages in total. That is what it looks like for a small charity. I suspect my noble friend Lord Tyler would call it a very good aid to sleeping.

These are two separate sets of guidance which are not easy to integrate. For example, in section G of CC9, entitled, “Campaigning: getting it right”, it says:

“This section is aimed at charities that have already decided to campaign or work in the political arena. There are a range of detailed questions and issues that may arise, along with the need to comply with charity law, and other laws and regulations.”

Strangely, the Electoral Commission is not mentioned at all in the text that follows. What is mentioned is the Advertising Standards Authority, a body which has not hitherto featured large in our discussions. In the Electoral Commission guidance on non-party campaign material, the focus is on two tests: the purpose test and the publicity test. These form no part at all of the CC9 guidance and the overall impression is of two ships passing in the night. This will pose considerable challenges, especially to smaller charities, so the amendment is intended to require—force is perhaps an unattractive word—the Electoral Commission and the Charity Commission to produce an integrated set of guidance laying out how to comply with the new Act.

This is a challenge but not an insuperable one. It will, of course, be opposed by both commissions. Members of your Lordships’ House will already have had an opening salvo from the Electoral Commission:

“We think that a legal requirement for us and the charity regulators to produce joint documents is unnecessary and likely to be inflexible. It may also be counterproductive because it could hinder our ability to respond quickly to the needs of charities whose activities fall within our regulatory remit, especially as new questions will arise during the regulated period.”

I do not find these arguments persuasive at all. I see nothing in them that will be made more difficult by requiring a joint approach. Indeed, if the Electoral Commission is proposing to introduce new guidance during an election campaign without the agreement of or consultation with the Charity Commission, this has the potential to put charities in an extremely difficult position.

I do not underestimate the challenge this will pose to my noble and learned friend on the Front Bench. I have been trying for some three years to encourage greater co-operation between Companies House and the Charity Commission to save 30,000 charitable companies making two returns where one could and should suffice. That has never seemed an insuperable objective but progress to date has been glacial. The same applies to collaboration between HMRC and the Charity Commission. However, that issue of collaboration between the Charity Commission and the Electoral Commission is altogether more pressing because of the short timescales and the imperatives created by a general election campaign.

If the requirement to produce joint guidance is not made a statutory one, I confidently forecast that none will be produced. The two commissions will keep to their own separate turfs, and the affected charities will be left in no man’s land in the middle. I therefore hope that my noble friend will appreciate the importance of tackling this matter.

[Baroness Royall of Blaisdon (Lab)]

My Lords, I am grateful to the noble and learned Lord, Lord Hardie, for his amendments and I welcome the amendment tabled by the noble Lord, Lord Hodgson, who just pointed out the ghastly complexity and challenges that will be faced by charities as a result of the Bill. It is eminently sensible to have an integrated set of guidance, and I very much hope that the Minister will accept this amendment so that it will be clear that this House and the Government want there to be a requirement for an integrated set of guidance.

On Monday the Government made a great deal of how the guidance that would be issued after the Bill becomes law would clear up many of the apparent difficulties contained within it. The Minister—I do not know if it was the noble and learned Lord—said:

“The Government believe that it is essential that campaigners have clarity on how they are to comply with the third-party regulatory regime. The Electoral Commission has a power to produce guidance for third parties campaigning in elections, and indeed has exercised that power in previous elections”.—[Official Report, 16/12/13; col. 1040.]

Indeed, the Minister placed such a heavy emphasis on the guidance that would be given that the noble and right reverend Lord, Lord Harries of Pentregarth, was moved to say while speaking to his amendments:

“However, perhaps I may anticipate, rather too boldly, the response that the Government are likely to make: that these kinds of issues can be dealt with in guidance”.—[Official Report, 16/12/13; col. 1057.]

Charities and NGOs need to understand how the Bill will affect them as the Bill passes through the House. To place the amount of weight that the Government place on guidance is effectively another way of avoiding proper consultation.

The first amendment from the noble and learned Lord, Lord Hardie, would ensure that the Electoral Commission is able to give charities and NGOs guidance in good time before they are subject to the regulated period, and would reduce the spending limits in line with the reduced regulated period that would result. The second would ensure that the Electoral Commission is resourced to apply these changes. As the Electoral Commission has said itself,

“The current PPERA rules on non-party campaigning are relatively narrow in scope … and the definition of what is covered is relatively clear, so we are able to produce guidance that builds on the legislation”.

However, it goes on to say with regards to the Bill before us:

“This will be particularly challenging for campaigners because of the need to apply the definition of ‘election purposes’, which is new and untested in the context of non-party campaigning. In the limited time available we will aim to produce guidance to assist with this, and will offer advice on particular queries where possible, but our experience strongly suggests that it will not be straightforward to apply the new rules to many specific types of activities”.

I know that the Electoral Commission will do all in its power to produce the guidance, but it will need time because of the complexities.

I say to the Minister that of course the best way of ensuring that the Electoral Commission is able to issue clear guidance in time is to draft clear law—to draft a very clear Bill. These sensible amendments would therefore assist in that. However, notwithstanding the desired clarity, this is a complex Bill, and time will be needed to ensure the best possible guidance so that the voluntary and charitable sectors understand their new obligations and do not unintentionally fall foul of the law. Like the noble and learned Lord, Lord Hardie, I think that small charities and voluntary organisations that do not employ lawyers as a matter of course could well find themselves unintentionally in breach of the law. As in so many things we do in this House, the lawyers will gain the most, and we cannot allow that to happen. I therefore very much hope that the Minister will signal that the Government will accept these or similar amendments in due course.

[Lord Wallace of Tankerness]

My Lords, Amendment 170J, tabled by the noble and learned Lord, Lord Hardie, would require the Electoral Commission to produce guidance for third parties, so that they are clear what actions they must take to comply with the provisions of the Bill. The Bill, should it have received Royal Assent by the time that guidance is produced, would not be permitted to take effect for a further three months. The noble and learned Lord further proposes that the Electoral Commission be given the extra resources it might need to produce this guidance and to comply with its other obligations under this Bill.

My noble friend Lord Hodgson has tabled Amendment 175, which, similarly, would require the Electoral Commission to produce guidance, but jointly with the Charity Commission. This would be designed to address specifically the impact upon charities.

The debate surrounding this Bill has made clear just what a lack of awareness there was, not only among third parties but among the public at large, of the existing provisions of the Political Parties, Elections and Referendums Act 2000—PPERA. I have certainly heard from more than one of the organisations that I have spoken to that they had not been aware that they might just have been edging towards a registration threshold back in 2010. They had not appreciated that fact. This lack of awareness has highlighted the crucial importance of comprehensive and clear guidance for all third parties, not just charities, so that they understand whether they could be affected by the provisions of this Bill as it amends PPERA.

As I said in at least one of the debates on Monday, when the original Committee on Standards in Public Life was considering the architecture and proposing the idea of an Electoral Commission it accepted that in some ways we could never achieve an absolute definition, and that, as the noble and learned Lord, Lord Hardie, predicted, some cases may have to go to the courts. However, much of that uncertainty could be avoided through guidance. That was one of the functions and roles that the Committee on Standards in Public Life saw for the Electoral Commission that it proposed should be set up.

The Electoral Commission already has the power, under PPERA, to produce guidance for third parties. As I said on Monday,

“The Electoral Commission has a power to produce guidance for third parties campaigning in elections, and indeed has exercised that power in previous elections. Campaigners require clear guidance to support them and help them understand the revised regime, and I am reassured that the commission recognises this too”.—[Official Report, 16/12/13; col. 1040.]

I think that I went on to say that the sooner the guidance can be produced in draft, the better.

Although there is existing guidance on third parties and the PPERA rules, noble Lords will be aware that the commission has already indicated that it will indeed produce fresh and enhanced guidance in time for the 2015 UK general election. It did so in its briefing to members in the other place, as recently as 29 August. Both the Electoral Commission and the Charity Commission will be aware of the demand from campaigners for clear and detailed guidance of this sort. I have no doubt that today’s debate, and the amendments tabled by the noble and learned Lord, Lord Hardie, and by my noble friend will have reinforced that message.

As in previous elections, the Electoral Commission and the Charity Commission will work closely together to develop guidance that will assist campaigners and charities to have a clear understanding of how the provisions in Part 2 relate to them. Again, the Electoral Commission made this clear in its briefing of 4 November. The Government stand ready to support this work.

I hope that the fact that the Electoral Commission and the Charity Commission have indicated an awareness of the need for clear and comprehensive guidance is of some reassurance to the Committee. However, the Government are also keen to reassure campaigners and charities that the provisions of the Bill and the PPERA rules will, and should, be clearly communicated to them. It is our view that the Electoral Commission should produce guidance in consultation with the Charity Commission, and provide specific consideration of charities. I am not sure whether a particular statutory provision is needed, but the benefit of that is very evident.

The other point made by the noble and learned Lord, Lord Hardie, in his amendment, which was also spoken to and supported by the noble Baroness, Lady Royall, was about the funding of the Electoral Commission. It is important to be aware—

Charities Act 2006 (Principal Regulators of Exempt Charities) Regulations 2011

Debate between Lord Hodgson of Astley Abbotts and Baroness Royall of Blaisdon

Tuesday 5th July 2011 Grand Committee

[Lord Hodgson of Astley Abbotts]

My Lords, my noble friend Lord Phillips, from his lengthy experience in the charity field, has carried most of the points with him. I shall attempt to sweep up behind a little, if I may, and raise a couple of issues. Before doing so, I need to declare interests as president of the National Council for Voluntary Organisations and as chairman of the Armed Forces Charities Advisory Company.

I wanted to speak on this issue because, first, the concept of exempt charities is complex and their structure and rationale is not immediately apparent. Secondly, these exempt charities are of course educational charities, and it is around education and health, but particularly education, that the whole issue of public benefit and charitable status revolves in the case of private schools. Therefore, it is important that we give these instruments a proper degree of scrutiny.

One danger and one problem or issue that arose during the passage of the Academies Act was whether we had undermined the issue of presumption, because the Act merely stated that these institutions would be charitable, full stop. Having spent a great deal of time earlier removing presumption and making sure that all charities had to justify their public benefit status, it seemed strange and possibly dangerous that we would suddenly say that a group of charities—in this case, schools—was exempt. Therefore, the question of how they are going to be regulated and the nature of the regulator is important.

As for when the regulator takes over from the Charity Commission, originally the 2006 draft Bill suggested that exempt charities could only disappear. Originally, the Bill as drafted allowed only for exempt charities to be removed; the original concept was that they would finally fade out. However, some of us, including my noble friend Lord Phillips and I, decided that it would be better to have a two-way valve, not a one-way valve. Indeed, it is the two-way valve that is being used to create a new category of exempt charities.

When we examined some of the exempt charity regulators, there were some surprises, which have a read-across to this debate. The regulator for universities is the Higher Education Funding Council for England. It has always been surprising that that is the regulator because it has no charitable knowledge at all; it is merely a funding body. I shall come back to that again in connection with the proposals for the regulator and the Secretary of State in the current regulation. We have had some grave disappointments. Given that we were trying to create a proportionate regime, it was a shame that the MoD was not prepared to take on some of the requirements of the exempt regulation for Armed Forces charities, because there are many hundreds of them and they require a particular light touch.

On the upside, you can have light-touch and proportionate regulation focused on a particular group of exempt charities, but there is a down side, which is regulatory arbitrage. You can find ways to fall between the cracks of the regulatory regime, which is something that we have to be very careful about. As I understand it, there will be two principal regulators. One of them is the Secretary of State for Education—that is very clear, although there are some down sides that my noble friend has just mentioned—but in the Welsh situation the regulator is a “responsible person”, which is defined in Regulation 6(2). It means a person who,

“is or was … a Welsh Minister”,

was,

“acting on behalf of the Welsh Ministers”,

or was,

“a member of a committee established by the Welsh Ministers”.

This is not an attack on the devolution process but it does mean that nobody is identified as the regulator for the Welsh educational institutions. I think that responsibility should lie with someone, or some defined body, and there is a danger here of having an amorphous and opaque nature of responsibility with regard to Welsh educational institutions.

On the question of memoranda of understanding, through which we can avoid regulatory arbitrage, I assume that there will be two—one with the English regulator, the Secretary of State, and one with the Welsh person. It will be interesting to know from my noble friend who that person will be in the light of the rather opaque drafting of the regulation. This will be the first time that we have had two regulators—one for England and one for Wales. As I look through the other exempt regulators, I see that DCMS regulates museums and galleries for both England and Wales. We are now dividing them for the first time and creating an interesting precedent.

I share the concerns that my noble friend Lord Phillips raised about role of the Secretary of State for Education in respect of England. This is a tiny part of his empire and can hardly have the attention that it might deserve. There is the issue of independence that my noble friend underlined, as well as the question of conflicts of interest that may arise in the future. I was quite attracted by the idea that the YPLA should be a regulator. If it is to be succeeded by the education funding agency, so be it. After all, if the Higher Education Funding Council is doing universities, why should the education funding agency not do this group of educational institutions? As the Explanatory Memorandum says:

“In practice, the YPLA (and its proposed successor the EFA) will carry out much of the necessary information gathering which would then be used to report to and advise the Secretary of State”?

Why not just have them carry out the role? It would be a good devolution of power. It would remove the role from the Secretary of State and avoid the conflicts of interest to which my noble friend referred.

In conclusion, I understand that these are technical questions. I am sorry that my technical e-mailing skills are not sufficient to have been able to get them to my noble friend in advance of this afternoon’s debate, but I think that they are important. In these stringent, difficult and suspicious times, we need to maintain the culture of the charity brand, especially in the field of education. Some precedents are being set here and we need to be careful that we are not doing something that we will later regret. I think that, in line with the Government’s overall policy, devolving power for regulation to the lowest possible level is appropriate, and therefore I do not quite see why the Secretary of State has to have a continuing role here. That seems to be centralising rather than devolving.

[Baroness Royall of Blaisdon]

My Lords, I, too, am grateful to the Minister for introducing these orders. Of course, it is right to ensure that there is proportionate but effective oversight of charities under charity law while keeping the regulatory burden to the minimum necessary, but that regulation must be effective and ensure proper compliance with charity law. Therefore, I share the concerns of noble Lords who have spoken about the potential conflict of interest and perhaps the impact on the independence of charities if the Secretary of State is to be the regulator for so many of these institutions. I, too, think that again this is a demonstration of centralisation rather than enabling organisations to flourish, and that dismays me. I should be grateful for the Minister’s views but I also hope that the Government will reflect on potential conflicts of interest in relation to the Secretary of State’s role as regulator and his role as Secretary of State for Education.

I find no reference to free schools in the documents before us and I do not understand their status. Are they charities or not? I do not know. All academies are included. However, I do not know what the status of free schools is and I should be grateful for some clarification. If they are charities, who is the principal regulator?

In the Academies Act 2010, as the Minister said, it was agreed that a principal regulator would be required for academies and, as noble Lords have said, it was proposed that this should be the YPLA. Then along came the Public Bodies Bill and the aim to abolish the YPLA. Of course, the Bill is still in Committee in the House of Commons.

I have a few questions. First, is it not precipitate to appoint the Secretary of State for Education as the regulator when the YPLA has not yet been abolished? Like the noble Lord, Lord Hodgson, I wonder why the Education Funding Agency should not be the regulator rather than the Secretary of State. Secondly, the memoranda of understanding are clearly extremely important and I wonder whether Parliament will be able to see them before they are concluded.

My last question is a small one. The section relating to monitoring and review is a little perplexing. A review is supposed to commence later this year. However, this will be pretty worthless in relation to the regulator because the review of the 2006 Act is expected to follow shortly after the change is made by these regulations. Essentially, I am asking: why have two reviews? Why not have one review in three years’ time? That would obviate a lot of work that will go into reviewing in the mean time.