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

Lord Tyler Excerpts

Monday 16th December 2013 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I am glad that the noble Lord, Lord Greaves, made the point that we are trying to make certain that the normal activities of non-party charities and NGOs are not prevented and must continue. I also want to thank and congratulate my noble and right reverend friend Lord Harries of Pentregarth on this excellent commission report. The five weeks we have had, which have not been nearly long enough, have resulted in a considerable amount of work and consultation. At the same time, I am disappointed that there is not a list of government amendments, arising out of that consultation, for us to look at as well. I hope that those will come.

The noble Baroness, Lady Mallalieu, mentioned the package. During the rest of this Committee stage, I shall be referring to this package of recommendations made in the report. However, I believe that the package goes wider than that. I think there are three parts to what we are trying to do in this House. The first is what I mentioned when asking for the pause, saying that the request was not a wrecking but a saving motion. It was saving the Government from themselves and from wrecking the voluntary sector. That is hugely important. We must make absolutely certain that the voluntary sector can continue—that is, the non-party bit—and it must be maintained. Secondly, there is the package of recommendations which I hope will be accepted. We are looking no further than the 2015 election, because the third and key part of this package would seem to be the post-election review, based on what has been learned. Bearing in mind that everyone is keen that the process should be transparent, I think that what eventually comes out should be based on careful examination of what happens during a natural event, rather than the presumption that this or that might happen, when we know that many of the measures in the Bill have nothing to do with the day-to-day activities of non-party organisations.

I am grateful to the Leader of the House for providing the time and, acknowledging that it is too short, I hope that during the remainder of this Committee stage we can be constructive and make certain that these normal activities are allowed to continue.

[Lord Tyler (LD)]

My Lords, I am glad to follow the noble Lord, Lord Ramsbotham, because I very much agree with the last points that he has been making. I think there is wide agreement in this House that we have to do our job to make that process to which he has referred a reality. I am grateful, too, to the noble and right reverend Lord, Lord Harries of Pentregarth, and to all his colleagues. It was a formidable task that they took on; they did not stop at the first hurdle but kept going and have produced some extremely helpful and notable recommendations.

As is recorded in the register, I am a patron of many charities and I am sure that other noble Lords are too, but I have also had experience in the past as a full-time employee of Shelter, which is exactly the sort of charity and non-party organisation that we think is so important to civil life in our country. I am extremely proud of the work that such organisations have done and are doing, and I continue to support them. So I hope that your Lordships will understand that I come to these issues with very much the same background, interests and enthusiasm as members of the noble and right reverend Lord’s commission. I recognise that the work they have done is an extremely valuable contribution to the discussion of these issues.

Before I come to Amendments 160B and 160C, in the name of myself, my noble friends and others, I wish briefly to address the stand part debate which is also in this group. At Second Reading, I said:

“You could plot on a graph transparency on the one hand and bureaucracy on the other in very many areas of life. If transparency is low, the regulatory burden tends to be low, too. If accountability is strong, it is likely that the regulatory burden will be significant. The threshold is a question of where we plot this legislation on that graph. … It will be our responsibility in your Lordships’ House to get the balance right when we come to Committee”.—[Official Report, 22/10/13; cols. 902-3.]

That, surely, is our principal occupation today—to get that balance right, which is a crucial role that we have to undertake between now and Report in January.

After meeting a very large number of charities, community groups, third-party campaigning organisations and their representatives, it is clear to me that the amendment which I and my colleagues have put forward would go some way to meet that objective. However, I am the first to admit that I am no great expert when it comes to getting the amendment absolutely right. Many others in the House are greater experts in that regard. However, I endorse the concerns expressed by the noble and learned Lord, Lord Hardie, that we must be careful about the unintended consequences that could arise if the Bill were implemented in its present form. That is why the amendments that I have tabled have had broad support from third-party organisations, which accept that there is a problem in ensuring transparency in relation to those who are campaigning.

The Bill refers to expenditure that,

“can reasonably be regarded as intended to promote or procure electoral success”,

in respect of a party or candidate. There is wide acceptance that there should be greater transparency in relation to organisations that are determined to undertake that role. Indeed, everyone to whom I have spoken is absolutely clear that an extremely important part of the role and responsibilities of your Lordships’ House is to try to avoid confusion and to deal with a lack of clarity and the excessive constraints of the 2000 Act. Indeed, that sentiment was shared by the commission of the noble and right reverend Lord, Lord Harries, and he has endorsed Amendments 160B and 160C.

Amendments 160B and 160C deal with two discrete issues that have come up time and again in my discussions with a large number of organisations, and have been a feature of our debate this afternoon. They do not attempt to rewrite the basic definition, which the Electoral Commission has advised is not susceptible to constructive alteration. The benefit of that definition, as it stands, is that it has 13 years of practical experience attached to it and it is an objective test—namely, “What would a reasonable person think someone is doing?”, not “What did that person think they were doing when they did it?”. The latter would be much more subjective. We can never be sure of someone’s intentions but we can come to some conclusions about what a reasonable person would think those intentions were. The amendments seek to make these things clearer still.

Amendment 160B sets out the principle that the endorsement of a campaign by a candidate does not imply that the campaign concerned necessarily supports the candidate. The noble and learned Lord, Lord Hardie, referred to a similar situation. This is a very worrying misconception about the Bill and is much featured in the case studies reported to us: that is, the notion that the endorsement of a campaign by a candidate can be construed as that candidate receiving support from that campaign. The more one thinks about that, the more illogical it is, but it is clearly a perception and, as is so often the case, a perception can be even more influential than reality.

I recall regularly speaking of the good work done by community groups in my former constituency. If, by so doing, I could have won the implied support of those groups, it would have been wonderful. If everything that I supported had automatically reciprocated that support, I would have got an even bigger majority than I did, but, of course, that was simply not the case. The policy objectives of non-party organisations will often receive flattering praise from a candidate, but the feeling may not be mutual. That is precisely the grey area that the noble Earl, Lord Sandwich, referred to just now. It is not absolutely clear in the Bill that it is not reciprocal. We deserve to try to make sure for everybody’s benefit that the Bill is so improved that we know precisely where we are. That needs clarity. I hope that Members of your Lordships’ House will accept that our amendment is intended to do precisely that—to clarify the situation.

Amendment 160C gives an opportunity for the Minister to address some other matters that are ambiguous under the PPERA 2000 definition of non-party campaigning; that is, the extent to which the remotest praise for a candidate by a campaign can be said to be “promoting or procuring” his or her electoral success, or that of their party. In particular, we have all seen in the past—indeed, I think I prepared them when I was not a Member of either House—the score-cards of different parties’ positioning on different policies. These assess the policies of various parties against the policies of that particular organisation. Again, it may seem to us within the political system that it is perfectly logical that it does not automatically mean that you are seeking to procure or promote the election of a candidate, but we need clarity for everyone outside that that is the case. People are not normally involved in the political process. It is not absolutely clear at present whether this activity would or would not be regarded as promoting or procuring the electoral success of the party or candidate that comes out best in that score-card assessment. Again, a little more clarity would be extremely helpful. Even if we were forced back on to the 2000 Act, rather than producing this new Bill, we would be wanting to deal with that particular problem as a matter of urgency.

A remote suggestion that a candidate has done something right by, say, an organisation congratulating that candidate at a press conference for adopting a particular policy, is a grey area in precisely the terms that have already been referred to in this afternoon’s debate. It is important that we should make sure as soon as possible that this amendment could provide an opportunity to clarify the situation once and for all. The Electoral Commission advice is that a non-party organisation could not be accused retrospectively of “promoting or procuring the electoral success” of a candidate or party, just because that party or candidate had adopted some of the positions of the organisation. The House, however, is entitled to ask the Minister this afternoon to give that position his very clear attention so that we can be sure that we are clarifying the law as it stands and as it would seem to be intended in the Bill.

Can he also shed some light on the position after a candidate or party announces its support for a policy which is supported by a non-party organisation? My understanding is that, providing there is not a massive increase in the scale of the organisation’s campaigning clearly as a result of promoting the candidate who is supporting its view, then it would not reasonably be regarded as campaigning for that candidate simply by virtue of doing what it had been doing all along. Again, however, it is a grey area. I would welcome some greater clarity.

Some clarity on these issues is just what a lot of campaigners—be they charities or not—are asking us to undertake this afternoon. That is our principal task in your Lordships’ House. We generally do it very well. I hope that we are going to do it again today. These amendments are vital tests to see whether this Bill can be made both clearer and more workable than the present law. I hope, therefore, that they will be given the very active consideration of the Minister as well as other Members of the House.

[Lord Harries of Pentregarth]

My Lords, I, too, should declare my interests as listed in the register; in particular the fact that I am a trustee of the Woolf Institute. I would like also to thank the noble Lord, Lord Tyler, for working so assiduously, conscientiously and sincerely to try to move this terrible Bill on from where it started off in order to achieve something that might be workable.

I should like briefly to comment on the attempt by the noble and learned Lord, Lord Hardie, to achieve a better definition of “controlled expenditure”. The commission thought very hard about that definition but, in the end, we felt that in the time available we could not come up with anything better than what we have at the moment. We reckoned that the political reality was that we had to work with what we have under the heading, “Meaning of ‘controlled expenditure’”. However, our strong recommendation is that this is one of the areas that is to be considered by the review, which the Minister has assured us will take place after the 2015 election. Certainly if the definition of the noble and learned Lord, Lord Hardie, were to be accepted, it would immediately exempt all charities from the Bill because, of course, their primary purpose cannot be to promote or procure the election of a particular party.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

We have a clause stand part debate and the point is to argue that this increase in scope does not belong in the Bill. That is the purpose of this, and the clause stand part debate is in our name. It is absolutely because we do not accept the enormous expansion that this clause brings in. We had expected, at this stage, because of the pause, that the Government would give an indication, even if not through amendments, of their response to the dissatisfaction at Second Reading. Our surprise is that we meet today, five weeks later, and there is not a single indication that the worries raised either by the two reports from the noble and right reverend Lord, Lord Harries, or at Second Reading, find themselves in any way reflected, given that no government amendments have been tabled for today.

[Lord Tyler]

Is the noble Baroness’s position that she wishes to leave PPERA 2000 just as it is, unamended? That is not the position of the commission of the noble and right reverend Lord, Lord Harries, or indeed of any of the organisations that I have met. It therefore seems extraordinary that she is prepared to leave that status quo in place.

[Baroness Hayter of Kentish Town]

I do not think that any one clause quite does that, but it is interesting if that is the noble Lord’s interpretation. Assuming that we take the Government’s intention as genuine—we can perhaps agree that this should just be about transparency—our view is that the extension of the scope has the unintended consequence of extending it from purely publications to an enormous range of other activities and things such as staff costs, transport and hire of halls. That fundamentally alters the position, which is what we are questioning. Is the effect of the Bill the same as the intent—transparency—or is the effect the chilling one that every charity and community group is telling us about? It feels like watching the Army march, with one young soldier out of line and his mother saying, “My son is marching properly but everyone else is out of step”. It seems that everyone who is commenting on the Bill has worries about the effect—except, of course, the Minister.

It was interesting and very noticeable that Lib Dem Members stood up when I used the words Sheffield Hallam. Can the Minister confirm my interpretation—it would also be interesting to hear from the noble Lord, Lord Tyler—on whether, had the Bill been an Act in 2010, so looking backwards rather than forwards, the NUS-Lib Dem antics over tuition fees would have been permissible? My reading is that they would not have been, that the NUS would have been caught had it spent too much. I have the feeling—and the NUS shares the figures on this—that, including events, press campaign tools, photographs, travel and related staff costs, the photos of those various Lib Dem candidates pledging not to increase tuition fees would have been caught by these rules, therefore requiring the NUS to register and account for all its costs. The interesting question is whether that would be the case.

--- Later in debate ---

[Lord Tyler (LD)]

My Lords, it must be apparent to the Committee already that a number of amendments in this group have similar objectives. I am very sympathetic to those which have already been mentioned, but I want to concentrate, before my voice gives out, on Amendments 160J, 165A and 165D. These all result directly from discussions I have had with a wide range of organisations.

The group deals with Schedule 3 and how particular activities might be excluded from the list of those which come under controlled expenditure. There is a principle in current electoral law that communication with one’s own members is not “election material”, and therefore it is excluded from the sort of controls and transparency that is being looked at here. However, membership is becoming—sadly, many of us feel—an almost outmoded concept. Organisations do not need members in order to have clear, regular supporters. Many prefer to seek funding through periodic contributions rather than through the straitjacket of an annual membership subscription. The concept may well have been more appropriate, more formidable and more general at the time of the 2000 Act, but it is surely disappearing rather quickly now. It is in that context that I believe there should be some degree of flexibility in relation to Schedule 3.

It is particularly in the nature of a non-party campaign that you can be on board on one issue, but not on another. You simply lend your support as you see fit from time to time, but you are still a committed supporter of that organisation or campaign. This idea of a committed supporter is one which the Electoral Commission itself has recognised, so it seems sensible that the Bill should pick that up and define it more clearly. Our Amendment 160J does just that. It defines a committed supporter as someone who has made a donation, or who in the past 12 months has either communicated directly with the organisation or expressly consented to receive the organisation’s communications.

The noble and right reverend Lord, Lord Harries, and his colleagues, have tried to deal with that problem in their Amendment 165B—so we are on the same track. My difficulty with their amendment is that it sets a very low bar for becoming a committed supporter. Anyone who uses e-mail knows how much correspondence we all get from people to whom we have given permission under the Data Protection Act for contact to be made. It is very easy—too easy—to give that consent. So I am afraid that the Data Protection Act is, in this context, insubstantial and insufficient. Our amendment sets the bar a little higher, so that a supporter is not just the passive recipient over decades of many quickly deleted e-mails, as might be the case with that so-called protection.