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

Lord Tyler Excerpts

Monday 16th December 2013 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, I did not speak at Second Reading for the same sort of reasons as the noble Baroness, Lady Tyler, but I will just make three points in support of the amendment. In passing, I have to say that I have the impression that the charity sector does not speak with one voice on this and does not have a monolithic view. Some charities want an exemption while some do not. In those circumstances, I take the view that it is incumbent on one to support what seems the most rational course, which is what I propose to do. I declare up front my interest as a vice-president of the RNIB. I will make my three points quite briefly.

First, as the noble Lord, Lord Phillips, has made clear, charities are already regulated up to the hilt as regards political campaigning and not engaging in it. The noble Lord, Lord Hodgson, has suggested that, because of their special status, which gives them a peculiar responsibility to be beyond reproach, charities should be subject to the regulation which this legislation proposes. However, it seems to me that the validation kitemark, as you might call it, which charity regulation provides is precisely the reason not to load charities with additional regulatory burdens. What would be the point of conferring this special status on charities and then saying that it does not actually count for anything?

Secondly, along with everyone else, I pay my tribute to my noble and right reverend friend Lord Harries and to his Commission on Civil Society and Democratic Engagement, which, as everybody has said, has done such sterling work on the Bill, which will be of great assistance to the House. However, I was not entirely convinced by its argument for not exempting charities. The argument seemed to be that charities should not have an exemption because other people should have one as well—but in that case, it would not be an exemption. The case for charities having an exemption is that they are in a class of their own. As I say, if everybody is to have the exemption, it ceases to be an exemption; if others feel they should have the benefit of charitable exemption, the answer is surely for them to seek to register as a charity. Concerns have apparently also been expressed that an exemption for charities could increase the prospects of a successful challenge to the PPERA rules on freedom of expression grounds, since it will make it more difficult to argue that the restrictions imposed on others by the rules are necessary and proportionate. If that is the case, so be it, and a good thing too. In saying that I am in favour of the charities having exemption, I am in no sense against the others.

The commission chaired by the noble and right reverend Lord, Lord Harries, is concerned about the impact of the Bill on the reputation of and trust in charities and the extra regulatory costs they will face in order to campaign for their charitable objectives, but it does not recommend an exemption. I am afraid that I draw the opposite conclusion. The noble and learned Lord, Lord Hardie, and the noble Baroness, Lady Mallalieu, raised the point that non-charitable campaigners might seek to set up charitable vehicles as a means of avoidance. However, that is surely not a genuine concern because if they set up a charity they would immediately become subject to the controls imposed by charity law. They would not be able to smuggle through, under cover of a charity, things they would not be permitted to do under charity law. There would be no point in setting up a charitable vehicle to get round the Act. Given the strictness of charity law and regulation, it would be completely self-defeating.

Thirdly, the best way I can contribute to this debate is from my experience when I was more active within RNIB than I am now. I was chairman for nine years and in various senior trustee capacities before that, so I have a good deal of experience with a leading campaigning charity. This experience tells me that the desire to impose stricter controls on charities to restrict the scope of party political campaigning is completely misconceived. At election time, we are concerned to promote our views to the parties, not to promote the views of the parties to anyone else. As often as not, we are simply asking the parties about their views, not promoting those views. If I have understood him correctly, the noble and learned Lord, Lord Wallace, said in an earlier debate that this kind of activity would not be caught by the legislation. However, proving that their activities were exempt would tie the charities up in bureaucracy. The noble Lord, Lord Tyler, has shown us this with his graph showing the correlation between bureaucracy and transparency. The noble Lord, Lord Phillips, also made this clear when he described the increased regulatory burden to which charities would become subject as a result of the Bill.

The simplest thing would be to exempt the charities from the legislation.

[Lord Tyler]

My Lords, I am very glad that I held back and listened to another contribution from the noble Lord, Lord Low of Dalston, who said many of the things that I would like to have been able to say but could not have done with the same level of experience. There are two points which I would like to add or underline.

First, there seems to be a view in the House this evening, expressed by the noble Baroness, Lady Pitkeathley, that it would, somehow or other, be unfair to exempt the charities because the other organisations would then be more carefully controlled than the charities. That is the whole point: the charities are already very, very carefully controlled in what they can and cannot do in the public space before, during and at election time. As the noble Lord, Lord Low, has said, it may be that CC9 and the further additional requirements of the Charity Commission are not totally adequate but they are certainly very much more so than they were previously. They are certainly more adequate than the guidance that was given to the charities at the time of the passage of PPERA. I am very sorry to see that the noble Lord, Lord Bassam, has left his place, because he was the main author, I think he would probably claim, of that Act. Therefore, its inadequacies, which have been drawn to our attention throughout today—and, I have to say, have been drawn to my attention in the large number of meetings I have held—relate very much to the inadequacy of the treatment of charities, which are already so firmly circumscribed in what they can and cannot do.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

I am very grateful to the noble Lord. I just wanted to ask him how he thinks matters will develop if, at a future general election, the Electoral Commission determines, on a complaint to it from a non-charity, that a charity has done something that is outside the electoral law but may be inside the charity law. Which will be pre-eminent? How will be that determined? Does the noble Lord, Lord Phillips, think that, whatever happens, charity law will come out on top, and therefore are we going to allow that there will be an unlevel playing field because the Electoral Commission’s views will be seen to be subordinate to those of the Charity Commission?

[Lord Tyler]

I admit that hypothetical examples of that nature at this time of night rather baffle me. I am not a lawyer either. But I think that the subsequent amendments that the noble Lord is suggesting, which should in any case mean that there is a coming together of the guidance from the two commissions, should be adequate to this task.

I just want to pick up a point the noble Lord made earlier. He has huge knowledge of the charitable world. He has given a lot of time, energy and specialist attention to the charities, but he seemed to suggest earlier that somehow or other the Charity Commission was not up to the job: it was not in a position, not able, not capable and it did not have the resources to police CC9 and the subsequent advice. That is a very serious charge. If it is his view that the Charity Commission simply is not capable of doing this job, then I admit that the case put by my noble friend Lord Phillips of Sudbury may be rather weaker than I anticipated. I do not think the noble Lord was saying that, but perhaps he would like to clarify that point. If he was saying that, I understand that there is a real doubt about whether the commission is up to the task it has set itself. In my experience of charities and of the previous advice that was given to charities, I thought it was well up to the task and there have been comparatively few cases where the rules have been infringed.

[Lord Hodgson of Astley Abbotts]

Again, I am very grateful to my noble friend. I simply invite him to go to the Printed Paper Office and get a copy of the National Audit Office’s report on the Charity Commission, published two weeks ago. That is its view after six or eight months’ investigation. He can see it all laid out, warts and all—some good, some bad—but the NAO has some pretty disobliging things to say about the position of the Charity Commission.

[Lord Tyler]

My Lords, it is late at night to have to introduce a new element into the debate, but the natural conclusion is that the Charity Commission should withdraw completely from this role of policing what should and should not happen in terms of public policy and elections. But CC9 is there and the Charity Commission is now developing more advice on this point. Either we trust the commission to do the job or we do not. I fear that what my noble friend Lord Hodgson has just said does not increase my trust.

In those circumstances, we are still faced with a genuine dilemma. As the noble Lord, Lord Low of Dalston, said, as things stand at the moment many charities, large and small, feel that they are going to be subjected to two quite separate sets of regulations in this regard and they feel that is unfair. That seems to be a very critical issue, and I hope that in due course this House will be able to address it.

[Baroness Hayter of Kentish Town]

My Lords, I apologise to the noble Lord, Lord Low. It was not that he was slow on his feet; I was just a bit too fast on mine.

I return to the work of Beatrice Webb as she battled against the causes and impact of poverty. She was not running a charity, so she would have been caught by the myriad new requirements that this Bill sets out. She could then have set up a charity. I have set up a large number myself. It is not very difficult. Then she could have campaigned in the same way with no restrictions on the amount of money spent, on the market research done, on meetings, on press work or on the number of staff employed. She could even have concentrated her arguments in a number of key constituencies so long as she did not talk about voting this way or that way.

We have to think about whether we want the Stop the War coalition, pro-HS2, anti-HS2, pro-fracking, anti-fracking, pro-runways, anti-runways, pro-free schools, anti-free schools and other hard-working, well motivated groups to feel the need to register as charities so that they can campaign freely—free not just from double-regulation but from any regulation, because they would be caught only by existing electoral and charity law and not by the new restrictions imposed by this Bill.

I can see the advantages of that. Alcohol Concern, which I established 30 years ago, is a charity which campaigns against the current Government’s policies—not against the governing party—because the Government will not bring in minimum unit pricing or reduce drink-drive levels. This is completely within our charitable objectives. We could even campaign as a charity and put all our money in certain constituencies. As long as we do not say that this means voting this way or that way, it would be completely in line with our charitable objectives.

The Federation of Licensed Victuallers Associations, which is not a charity, would be very worried about the effect of lower drink-drive limits on its trade, but it would not be able to campaign against changing the drink-drive limit without being caught by the necessities of the Bill. That is similar to the discussion we heard earlier about hunting and the Countryside Alliance and the League Against Cruel Sports. While both are campaigning on a policy issue, one would be subject to all the regulations and the other would not because it is a charity—as long as it keeps to charity law.

The Electoral Commission has pointed out that exempting charities from the PPERA would mean there would be no restrictions on what they could spend in the run-up to the election, provided that they act within their charitable objectives, but that all organisations would be subject to the new Bill and the tighter restrictions on campaigning. The Electoral Commission thinks this could undermine confidence in PPERA while creating an incentive for campaigners to campaign via charitable channels.

In answer to the noble and learned Lord, Lord Hardie, I can think of a number of organisations that I have been involved with which use the most appropriate vehicle, shall we say, at different times. That is the reason, as we know, that the Electoral Commission does not support exempting charities. Interestingly, we have not heard from the Charity Commission.

The supporters of the amendment say that charities should not need dual regulation. I have received only two letters from charities even vaguely in favour of this amendment—one has already been referred to: the Directory of Social Change—not because they want special treatment but because they are against duplicated regulation. They were not against being covered by the Bill but felt that they should not be regulated by a separate organisation. In other words, regulation could be by the Charity Commission; the argument is not for special treatment but against duplicate registration.

That is one of the arguments put forward in favour of the amendment, but there would be still other organisations covered by it. We heard earlier from a noble Baroness, who is not in her place, who is very involved with the BMA. It is regulated as a trade union, so it would be dual-regulated because it would continue to be regulated by the certification officer and also by the Electoral Commission. If it is simply about having dual regulation, surely we must deal with the plethora of people who would be doubly regulated.

The Directory of Social Change, despite not wanting to have two regulators, supports this amendment and also shares the concerns about the negative effects on broader civic engagement and the right to campaign. If I have read its letter correctly, I think its call would be for other parts of the Bill to be amended. The only other charity that has written specifically on this is the Royal Society for the Protection of Birds, which would support Amendment 160, but only as a fallback, because it is seriously concerned about the implications for wider civil society beyond charities. It supports the NCVO and others who want the Bill amended, as we do.

Charities are not calling for this, although they are undoubtedly calling for change. We will clearly be interested in what the Minister says on this. In the mean time, I shall ask Peers on the Liberal Democrat Benches whose amendment this is why they appear so little concerned with the other groups. The noble Lord, Lord Phillips, said that there is no evidence that charities did anything wrong in the previous election, and there is no evidence of these other groups being a problem. The noble Baroness, Lady Williams, who is not in her place at the moment, made it very clear that she does not like a whole chunk, if not most, of Part 2. If other noble Lords on those Benches really dislike like this Bill and all its bureaucracy so much, would it not be better for them to use their considerable muscle and voting strength in this House to amend the Bill for all civil society groups, rather than leaving just some of them exposed to the nasty bits of red tape, bureaucracy, demoralisation and complications that were mentioned by the noble Lord, Lord Phillips? Their voting strength in this House would be able to get rid of them for all groups. If this part of the Bill is bad for charities, it is bad for similar groups that do not happen to be charities, and we should see them all as one.