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

Lord Judd Excerpts

Tuesday 22nd October 2013 Lords Chamber

[Lord Harries of Pentregarth (CB)]

My Lords, perhaps I may say on behalf of the House how much we are looking forward to hearing the maiden speech of the noble Lord, Lord Horam. He brings to the House a great wealth of experience from the other place. He has been a Parliamentary Under-Secretary of State in two departments and a member of a number of influential committees. He also brings a very interesting political trajectory, which indicates his capacity to enter into the point of view of other people and an independence of mind, both of which are characteristics of this House. We very much look forward to hearing more of those characteristics in his maiden speech and in further speeches in the House.

I declare an interest as chair of the Commission on Civil Society and Democratic Engagement. This commission has been set up with the backing of more than 50 churches and campaigning groups. However, due to the extreme speed with which this Bill is being pushed through, the commission has had only very limited time in which to act. Hearings have taken place in Scotland, Northern Ireland and Wales, as well as in London, but our report will not be published until next Tuesday. It will be in time for Committee stage but not for today. Today, therefore, I speak in a personal capacity, although obviously drawing on some of the evidence that has been put to us so far.

My concern, as is that of so many, is the sheer speed with which this Bill is being pushed through. It is a major concern of the Joint Committee on Human Rights, the Political and Constitutional Reform Committee, the Select Committee on the Constitution and the Electoral Commission. There is total agreement—no disagreement at all—that big spending campaigns should be properly regulated. But the changes made in this Bill, compared with what was in place for the two previous elections, mean that charities and campaigning groups feel that their fundamental right to free speech will be severely curtailed. They have not been consulted and nor has the Electoral Commission, which has to offer guidance on the implementation of the law. They have grave doubts about the Bill as it stands.

Part 2 of the Bill, as we heard from the noble Baroness, Lady Hayter, has united an extraordinary number of organisations. I am not going to go through the list but will just mention the National Trust. It argues that its campaigning, which has brought about so many benefits in relation to the countryside which we now take for granted, would simply not be possible under the Bill.

One of the reasons why charities and campaigning groups need to be consulted is that they are key players in keeping our democracy alive. With the drastic fall in political party membership and the indifference of so many to professional politics, it is these groups that arouse people’s interest and help to focus their concerns. At election times it is the churches and charities that organise the hustings. The CARE organisation, for example, was responsible for facilitating more than 300 hustings during the last election. It is the charities and campaigning groups that educate the electorate about particular issues so that they can put intelligent questions to the candidates. Overall they have had a huge influence. It was the churches and aid agencies which combined together to mount one of the biggest campaigns that we have ever seen, on dropping third-world debt. That was followed up with campaigns on the millennium goals and overseas aid generally. These campaigns have influenced all the major parties in a very positive way—how much poorer the world would have been without them. Because of the key role that these bodies now play in democratic engagement and in keeping democracy alive, Parliament needs to be particularly careful about any legislation which affects their ability to do this.

It is said that there are those who resent the role now played by charities in our society. Some apparently would like to confine them to service provision, leaving the formation of political policy to politicians. Whether or not this is the case, it does raise a fundamental question at the outset. Why has Part 2 suddenly appeared? What is the problem it is trying to fix? We are told that it stems from a worry that American-style big-money campaigning such as Citizens United might come over the Atlantic. If that is so, however, it would be easily caught by the present regulations. As far as the United Kingdom is concerned, in the 2005 and 2010 general elections only two third parties exceeded the new lower limit for the election year. In 2005 it was UNISON and the Conservative Rural Action Group and in 2010 it was UNISON and Vote for Change.

No problem has been identified and no reason has been given for this reduction or the rationale for this figure or any other. For the vast majority of charities and campaigning groups, it is the new threshold at which they will they have to register which has given rise to the widest concern. This has reduced from £10,000 to £5,000 a year in England and from £5,000 to £2,000 a year in Wales, Scotland and Northern Ireland. As if this was not limiting enough, the range of activities which will count towards the sum has been greatly widened. Until now it has only been the cost of election leaflets and posters. Now, according to the long list in proposed new Schedule 8A to the Political Parties, Elections and Referendums Act 2000, it will include all advertising and all costs involved in this, all unsolicited material addressed to electors and all associated costs, all expenses concerned with market research, canvassing and provision of services for the media or conferences, transport, travel costs, rallies and public meetings generally.

The scope is exceedingly wide and concerns expenditure over the whole year before an election as well as the immediate run-up to it, including staff costs in so far as they are connected with activities for election purposes which we know, according to Clause 26, are activities which can reasonably be regarded as promoting or procuring electoral success at any relevant election for a registered party or candidate.

There is a huge range of questions raised by this but the overall effect of reducing the limits at which a charity will have to register and the increased number of activities that will have to be taken into account when calculating the cost means that charities and campaigning groups which regard trying to influence public policy as one of their core activities will be seriously inhibited. It is not that they will be spending big sums; on the whole, they will not. However, from the beginning of an election year, if the Bill is approved, they will be very frightened of quickly going over the limit and doing something illegal. Many trustees of charities feel that it is part of their fiduciary duty—or they will do—to curtail severely, if not stop altogether, a range of activities that might be seen to be on the borderline for fear that the charity would subsequently be regarded as acting illegally.

If, however, they decide to take the risk and register, the paperwork needed to subdivide the elements of expenditure and people’s time could be a huge bureaucratic burden on small charities or campaigning groups, especially during the actual election period itself when they will have to produce weekly accounts of any expenditure. The impact assessment calculates that the cost will be only between nothing and £800 for any one organisation, but many charities think that this is a major underestimate of the kind of costs that might be involved.

[Lord Judd (Lab)]

My Lords, I am very struck by what the noble and right reverend Lord is saying. Does he not agree that the ground he is now covering brings into the light the fundamental contradiction that under charity law, charities are expected to make the best possible use of every penny that is available to them in fulfilling their purposes? This Bill is going to force them to waste it on bureaucracy.

[Lord Harries of Pentregarth]

That is a valuable point and I thank the noble Lord, Lord Judd.

There is a whole range of other problems. If groups campaign on a particular issue, the total costs involved will be attributed to each charity. Some of the most effective campaigns in recent years have come about because charities have combined. There are particular problems in relation to Northern Ireland, Scotland and Wales, where the sum has now been reduced to a paltry £2,000 in the year. I am not going to deal with that now, but it might emerge in subsequent days.

Time and again we have heard the phrase “chilling effect” being used. Some people say that they cannot understand why charities are worried about it because there will be no curtailing of their freedom. It is the combination of these elements, the lower limits and the increased range of activities that count towards them, together with a continuing fundamental uncertainty about the definition of an electoral activity in practice that is making so many charities feel that their freedom to engage is in fact being threatened. The Government are worried about a large fish across the Atlantic called Citizens United and fear that it might swim over here, but instead of waiting for it to come, they have sent out a deep sea trawler which has thrown up a huge amount of sand and confusion from the bottom of the sea and put a net over charities which have been swimming quite legitimately in the waters of democracy. It seems quite absurd.

There is a case for including a number of activities in what counts for electoral purposes. I think that we can agree on that, although the question of staff time raises all sorts of difficulties, particularly in the case of voluntary time and whether it is workable at all. But what is strange is that all these activities are being brought together—the lowering of the threshold and an increase in the activities that count towards it. Will the Minister explain what the problem is that has given rise to this severe curtailment? It is rather like offering someone a sum of money for a piece of work and then telling them that the amount is being halved while at the same time they will have to complete a number of other tasks in order to earn the money at all. Surely if there were no reported problems before, and the number of activities is to be increased, the thresholds should in fact be raised, not lowered, in order to account for the ordinary activities that charities regard as part of their core duties.

As I have said, there is a logical case for including a lot of these activities, but will the Minister say something about how these charities are to assess volunteer time? The National Trust, for example, has thousands of volunteers. Are they to be taken into account?

--- Later in debate ---

[Lord Phillips of Sudbury]

My Lords, I declare an interest as a charity lawyer of long standing and founder of the firm Bates Wells and Braithwaite, which does as much charity work as any firm in the country.

I hope that the Minister will not be too dismayed by what I have to say. I do not view this as a partisan Bill; it is a Bill that all sides should, classically, deal with as they best think fit, as they are doing. However, the problem of dealing with this as Back-Bench Peers is as intense in relation to this Bill, more or less, as to any that I have come across. It is not so much the length—it is a mere 62 pages—but that it is mostly written by reference to the 2000 Act, and there is no Keeling schedule. How on earth are we Back-Benchers, with no assistance whatever, supposed to get to grips with the fine print of a main Bill of 201 pages and a supplementary and amending Bill of 62 pages? It is outrageous: I wanted to say that. I hope that in Committee the Minister will put in hand a Keeling schedule right away because without it we cannot do our job.

I note also that as we got in this morning there were three documents, totalling another 94 pages. One was the excellent Library note, one was the report of the Joint Committee on Human Rights and the third was the Constitution Committee’s report. They were available only this morning. Again, how on earth are we supposed to do our jobs and take into full account the very careful work done by those various bodies? That merely emphasises the fact that a Bill of this importance should not be dealt with in this helter-skelter way, whether or not it comes out of the wash in time for the 2015 election. In my view, that is of secondary importance to the need to get this Bill as right as we can. It is difficult enough if we do that in the right way.

I happen to agree with much of what has been said in criticism of Part 1, although I want to concentrate on Part 2. I do not want to see Part 2 wholly scrapped, because with regard to non-charitable entities—particularly commercial third parties seeking to influence the outcome of an election by plugging, sometimes with huge resources, a particular line or point of view—we need Part 2 although, again, it should be heavily amended. I am wholly unpersuaded that we need charities in Part 2 at all. They should be exempt from Part 2 and from the 2000 Act. I shall come to that in a little detail in a minute.

A number of Peers have mentioned the importance of the charity sector, but there are one-third of a million charities in this country, 95% of which are run entirely by volunteers. It is no good the Minister saying, “They will not be caught by this Act”. Lots and lots of them jolly well will because we have the provision about coalitions. I am damned if I fully understand the coalition arrangements, but certainly they will catch tens of thousands of small charities in their tentacles because so many of them are part of a national body, albeit that they are independently and separately registered as charities, and we know all the rest.

There has been a good deal of exaggeration and quite a lot of charities, frankly, were not even aware of the 2000 Act where a lot of this stuff resides. None the less, the charity sector as a whole is up in arms about this Bill. Broadly, the charities are absolutely right. The noble Baroness, Lady Hayter, used the rather nice expression that this is a solution without a problem, which is right. We have no evidence from anywhere or anyone that the last election or the one before was subverted by charities. When have we ever in this House had a Bill like this which deals with a problem that does not exist? It is bonkers. It is not even as if, if we take charities out of this Bill, there is nothing that contains and controls them: they have the Charity Commission, as my noble friend Lord Hodgson and others have said.

The Charity Commission is not a pushover. I have grappled with it for the past 45 years. Sometimes, it is pretty tough going. It has a job to do.

[Lord Judd]

Very few people know more about charities and their activities than the noble Lord, but is he not being a little naive? Even if he can sustain his argument that there is no evidence from previous elections, is not the point that there could be—for example, in Sheffield—in the next?

[Lord Phillips of Sudbury]

My Lords, I think that the Charity Commission can do the job. Perhaps I may read a couple of passages from CC9, which was mentioned by my noble friend Lord Ramsbotham and others. It is a long and detailed guidance for charities which has evolved over 40 or 50 years. I have been quite closely involved with it. It gives an absolutely well thought through, pragmatically based series of yardsticks. The summary of campaigning and political activity by charities states that,

“political campaigning, or political activity, as defined in this guidance, must be undertaken by a charity only in the context of supporting the delivery of its charitable purposes”.

There is no equivocation. It can engage only in activities pursuing its “charitable purposes”. It continues:

“However, a charity cannot exist for a political purpose, which is any purpose directed at furthering the interests of any political party, or securing or opposing a change in the law, policy or decisions either in this country or abroad. In the political arena, a charity must stress its independence and ensure that any involvement it has with political parties is balanced. A charity must not give support or funding to a political party, nor to a candidate or politician”.

That is as clear as clear can be. They are not empty words, and there are a lot more to go with them. The Charity Commission enforces this, and the charity world is remarkably free of any abuse of these guidelines.

The noble Lord, Lord Judd, may remember that when he was director of Oxfam we had a major battle with a statutory inquiry instigated by the Charity Commission into Oxfam having had activities outside the range of what was permissible under charity law. Fortunately we ended up convincing it that we had not, but these are not empty words. If the Minister says that they are not quite strong enough then give the Charity Commission more resources. It has had a great deal of its people power taken from it. If we remove it from this Act, it would be a big load off the back of the Electoral Commission. It would be a saving of manpower, not a waste of manpower. It would be an economic measure to give the Charity Commission a little more assistance and not to put the burden on the Electoral Commission.

Others have said it, but the charity world as it is is the jewel in the crown of our culture. More than half the adult population is engaged in charity in one way or another. Charities are the engine of civic engagement at a time when in other respects we are in dead trouble. They exemplify organic life, volunteerism, communalism, philanthropy and trust. They are cherished. Can we claim those characteristics for the body politic? I fear not. Can big business claim any of those virtues? I fear not. Yet we are on the brink of putting into force an Act which will damage the sector, particularly the smaller part of it. It will demoralise charities, it will cause bureaucratic overload and it will waste money that is hard obtained and can be used better elsewhere. I do not see that we have anything remotely approaching a justification for shackling the charity sector in the way we are when there is no proven evidence of abuse and when the Charity Commission is there to do a job which it is already doing.

I have probably said more than enough, but I hope that when we get to Committee I will not have to put down 100 amendments because it would be a waste of time compared to a much more fundamental review. My last word is to remind the Minister that charity law is severe. A charity can exist for charitable purposes only. It can act only to pursue those charitable purposes. It can act only in the public benefit. We do not need this.

[Lord Judd (Lab)]

My Lords, I begin by declaring my interests. I have worked both as an executive and as a volunteer in a number of charity and voluntary agencies. I was director of VSO, director of Oxfam and more recently I am a trustee of Saferworld. My activities have mainly been in the international realm but also very much nowadays in the environment role as well.

I think that we are in a grave situation tonight. My noble friend in winding up what I thought was a very good opening speech, promised that we would work constructively and hard to try and make this a better Bill. I hope that that is possible; I have some doubts. The Government will have to do a lot of work to persuade us that we can make this a better Bill because there is tonight’s well argued issue about the complete incompetence and failure to think through and to analyse the consequences, and the unintended consequences, and how they will be dealt with. There is also a question about the underlying purpose of the Bill. At best that could be crudely party political and at worst it could be quite sinister. I have done a lot of work in the North Caucasus region and Russia in recent years and I am horrified to be looking at what is being proposed here and seeing how it relates to what is happening to civil society in Russia.

At times like this it is important to go back to the grassroots and listen, and I am going to ask the House to bear with me while I do that. In all the plethora of representations that have been made to us, there is one that has registered strongly with me. It is from the Newcastle Council for Voluntary Service, and other noble Lords may have seen it. I shall quote from what the council says:

“It isn’t clear which elements of our work could be classified as campaigning. For instance, we are involved in research on the impact of welfare reforms. Is that campaigning? We regard campaigning as one of our legitimate efforts, as our focus is about using voluntary and community action to improve the lives of people in Newcastle. It would be impossible to designate/attribute an economic value to this element of our work. There would be potentially disproportionate amounts of administration involved. The Act would effectively be a deterrent as there could be confusion over what was classified as campaigning. Obviously we are bound by Charity Law and do not engage in party political campaigning, but we have signed up to campaigns previously which want to change or strengthen policy during election time, eg support for housing homeless people”.

At this point I want to make my own intervention and say that I really do not understand this nonsense about the election period. If there is a valid role for voluntary agencies and charities in informing the public, it can be particularly important in an election year. The parties have to take into account the realities that are being beamed at them from the voluntary sector. I shall continue the quote:

“(Shelter Campaign) or addressing Child Poverty (Child Poverty Action Group) and general anti-poverty work”,

are all among the council’s concerns. It goes on by saying:

“It is sometimes difficult to attribute exact staff costs to different workstreams. Would we be deterred from joining in partnerships and working in collaboration with others as it wouldn’t be clear if a joint piece of work was subject to the new Act and we could be unintentionally drawn into this? As part of our general work, we try to engage in public policy discussions, this could inhibit us from doing so in future. For instance, we promoted the hustings sessions around the election of the Police and Crime Commissioners locally; in particular the sessions aimed at the voluntary sector. Would this count as campaigning under the Act in the future? … currently we are involved in the Living Wage Campaign; the Who Benefits campaign; doing studies on the impact of government policy on our members ie other local charities; working with disability charities looking at how to minimise the impact of welfare reforms on their users; doing studies on local organisations to improve the case for funding voluntary and community organisations. All these pieces of work fall well within our charitable objectives. All of these could fall subject to the Act”.

I see the noble Lord, Lord Tyler, shaking his head. The noble Lord and others have to face reality. Whatever was intended, the perception is that this is going to happen, so to rush this Bill through without having had any consultation with the organisations concerned is a political and constitutional disgrace. What these remarks indicate is how important it is to consult, so that you have the good will and involvement of the people who are doing the work at the front line; not pontificating in this House, but actually doing the work at the front line. I am absolutely dismayed that this Bill is before us without consultation, but I am not surprised. It is all too characteristic of the arrogance which is around: “We know and we can do it”. I am afraid that for a sane, decent, modern society, we must have a government approach which says, “Here is a problem that deeply affects people. Here are real issues of proper accountability during elections and the duties and responsibilities of trustees”. How can we sit down together and find a solution that we are all happy with and which we see as constructive? That is the mature and self-confident thing to do, not this lack of self-confidence which means that things have to be driven through rather than gathering up and involving people in a solution that is wholesome and rooted in our society.

This issue of campaigning and charities is not new. I was director of Oxfam and I wonder how many people remember where Oxfam started. It started in the university church in Oxford in 1942. There was the threat of invasion, with everyone geared up to defeat the enemy. I was a youngster at the time and I can remember the signs and slogans for victory. There was a great atmosphere. A cross-section of society came together: academics—Gilbert Murray among them—trade union leaders and church leaders. They were deeply disturbed about the appalling famine which they knew was happening in Greece. They went to the Government and said, “We want to get relief to Greece”. The Government said, in effect, “You must be mad. Greece is occupied by the Germans. How can you talk about doing that in this context?”. They said, “It’s not the Germans we’re concerned about, it’s the Greek people”. The Government said, “Look, there’s a blockade of Greece. How can we break a blockade to get assistance through?”. So in 1942 they went out with a petition and gathered thousands of signatures in Oxford and beyond. They got the public’s support and went back to the Government and said, “We want to do something about these people in Greece”. The Government caved in and said, “Well, if you can organise something with the Red Cross and you do it through the Red Cross, we will let you do it”. How would that have happened if there had not been a determination—a conviction—to drive through the objectives which they thought were there in the organisation they were forming and to take whatever action was necessary to garner public support for what they were doing?

More recently, when I was director of Oxfam, I went on a visit to Latin America in the bad and ugly years—sinister and horrible years in many ways with the things that were happening. I was meeting our own people and the brave partner agencies with which we were working. I ended up in San Cristobal in Mexico. I met the brave Roman Catholic bishop of San Cristobal. He was a tough guy. Open-necked shirt, wooden crucifix, but my God, he was a strong man. He was frequently in conflict with the Government of Mexico because he was standing by the Indians in their terrible predicament in Chiapas. He was being threatened physically and verbally all the time.

We got into a very good conversation. I asked him whether he had a message he wanted me to take back to Oxfam and to the British people and he said that he had. He said, “You talk of your partners here. You talk to people here. You talk about them. How often do you talk with them and speak for them? I believe that solidarity is the real meaning of charity. You cannot be neutral. You have to stand up and be counted. You have to tell it as it is”.

That is an historic, inescapable duty and responsibility for those of us doing serious charitable work. Otherwise we are caught up in a conspiracy in which we are satisfied with treating symptoms; in doing so perhaps masking what is really wrong and failing to speak out on the underlying issues that arise out of our work. Of course, any charity and any voluntary agency campaigning must ensure that what it is saying is rooted in its own experience. That is not only right in principle but it brings strength to their campaigning because it brings the strength of experience.

If, intentionally or not, we are doing anything that is quenching the spirit of charities at their best—because advocacy can become the best way to serve the poor—we are doing the country a very serious disservice.