Third-party Election Campaigning

Lord Young of Cookham Excerpts

Thursday 13th September 2018 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, I congratulate the noble and right reverend Lord, Lord Harries, on his choice of subject and on the speech that he made in introducing it. I thank all noble Lords who have taken part; they have brought to the debate not just their experience of when the legislation went through but their experience in many voluntary sectors. For example, the noble Lord, Lord Judd, mentioned his experience at Nacro and Oxfam as well as some of the umbrella bodies that speak for the voluntary organisations. Many other noble Lords drew on their own experience of working in the voluntary sector. I cannot hold a candle to what some noble Lords have done in this field, although I chaired a housing association for some seven years before I became an MP.

I also thank the noble and right reverend Lord for his significant contribution to the development of third-party campaigning rules, including as chair of the Commission on Civil Society and Democratic Engagement, which closely monitored the changes to third-party campaigning and published a series of useful reports before and after the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 was passed.

We have heard much today about the important role that third-party organisations play in society. The Government recognise the invaluable contribution of third-party organisations and will continue to provide support and guidance to ensure that such organisations can meet their charitable aims. As a number of noble Lords rightly pointed out, the charitable aims include not just meeting the direct needs of the group that they seek to help but raising the profile and seeking to change the law. As the noble Lords, Lord Wallace and Lord Ramsbotham, and others have said, that is absolutely in line with their charitable objectives.

The Government published the Civil Society Strategy on 9 August, setting out how they will support charities and social enterprises. This includes plans to create a cross-government group to work with civil society and a renewal of the Government’s commitment to the compact principles. These are the principles that govern the relationship between the social sector and the Government. We are committed to embedding open policy-making across departments, giving civil society significant opportunities to achieve policy change, and are currently developing a commitment to this as part of the UK’s next national action plan for open government. We have also provided additional funding for third-party organisations. In 2018 the Government have doubled charitable donations through the UK’s Aid Match scheme, which pledges £1 for every £1 donated. Twenty-five charities across the UK will have their charitable appeals for 2017 and 2018 boosted, raising a total of £66 million.

When preparing for this debate, I read all four reports from the Commission on Civil Society and Democratic Engagement chaired by the noble and right reverend Lord, Lord Harries. I found them highly informative, providing a comprehensive insight into the key concerns around third-party campaigning. I also reread the significant contributions by my noble friend Lord Hodgson, which I will come to in a moment. I also read the contributions which both of them have made to our debate on the subject, including when the noble and right reverend Lord, Lord Harries, tabled amendments to the Act.

I thank my noble friend Lord Hodgson for his significant contribution to the third-party campaigning rules. His report has been referred to by many speakers, and I reread it last night. I understand that my noble friend has been in regular correspondence on third-party campaigning rules with Cabinet Office Ministers and will shortly be meeting the Minister for the Constitution to further discuss his report.

Third-party campaigners play an important part in the political process. Our democracy is strengthened by people campaigning for what they believe in, whether or not they are a candidate or political party. Voluntary organisations, charities, civil society and trade unions all play their part. I say that as someone who fought 10 general elections which were informed and enlivened by third-party campaigners. I recall, in particular, the campaign against the Newbury bypass, when I was Secretary of State for Transport and the candidate for North-West Hants. Digging a small bypass across my lawn was, I think, taking enthusiastic campaigning a little too far.

Much of the campaigning undertaken by such third parties is conveying their views about policies and issues. Under charity law, charities have the right to undertake campaigning and political activity where it supports their charitable aim, where trustees consider it to be an effective use of charitable resources, and provided that they do not engage in party politics. Electoral law does not change this. I listened with interest to the speech of my noble friend Lord Suri, but it is of course for the Charity Commission to act if there is a breach of charity law in the way that he implied.

The rules on third-party campaigning apply only to expenditure undertaken for electoral purposes. These rules exist to give the public more confidence in the way third parties interact with the political system. They ensure that campaigning is transparent and prevents any individual, company or organisation exerting undue influence on an election. Without these rules, our political system would be open to unknown groups spending unknown amounts of money on unknown activities to influence an election. I was interested to hear what the noble Lord, Lord Wallace, said: that it was not difficult to see where the line should be drawn. I am grateful for his broad support for the legislation which he helped to put on the statute book.

The Electoral Commission has a duty to provide advice and guidance to third-party campaigners to ensure that they understand the rules and are confident about campaigning. The commission has a series of guidance documents for third-party campaigners on its website. This includes information on registering as a third-party campaigners and guidance on reporting expenses to the commission.

The commission is currently working on a new guidance document with the Association of Chief Executives of Voluntary Organisations, the NCVO and Bond, the UK network for international development organisations. That guidance will cover areas of particular concern to smaller, issues-based campaigners. This includes the application of the purpose test to issue-based campaigns and the application of the third-party campaigner rules at an unscheduled UK parliamentary general election. The commission aims to publish this guidance early next year, and I can tell noble Lords who have taken part in this debate that I will ensure that all the contributions and suggestions they made during this debate are taken on board by the Electoral Commission.

Regulation of third-party campaigning at the constituency level has existed for a long time. The Representation of the People Act 1983 brought together in one place the legislation regulating third-party expenditure in parliamentary and local government election campaigns in individual constituencies.

The regulation of expenditure on campaigning activities by third parties on a national level has been a more recent occurrence. In 1998, the Committee on Standards in Public Life was tasked with reviewing the funding system and recommended reforms to political funding and spending. These recommendations were introduced by the Political Parties, Elections and Referendums Act 2000.

PPERA contains provisions on the regulated activity and registration of third-party campaigners, the spending rules for third-party campaigners, the rules on donations to third-party campaigners and the reporting of third-party campaign spending to the Electoral Commission. As the noble Lord, Lord Wallace said, that provided the framework for Part II of the 2014 Act, which was introduced in response to a 2013 Electoral Commission review of political parties and election finance law. I do not think that any noble Lord has suggested that Part II should be repealed. I was interested to hear what the noble Lord, Lord Tyler, said: that a lot of thought went into the construction of that Act, although they may not have got everything spot on.

The review suggested that the rules on third-party campaigning should be changed to reflect the scope of rules for political parties. It also called for a review of the implications of the campaign spending limits set by PPERA. These proposals become Part II of the 2014 Act.

The Bill’s passage through this House was paused for six weeks between Second Reading and Committee, to enable further consultation on the Bill. The Government made a number of amendments on Report—including, significantly, raising the threshold for registration, and therefore taking a number of smaller organisations outwith its scope, and requiring a review to examine the functioning of the whole system of regulating non-party campaigning. Subsequently, my noble friend Lord Hodgson was called upon to produce his review on third-party campaigning regulation, published, as we heard from the noble Lord, Lord Kennedy, in March 2016.

The 2014 Act brought greater transparency to when third parties campaign in an election. It required relevant expenditure on such campaigns to be recorded and disclosed more fully. A number of reports evaluated the effects of the 2014 Act on third-party campaigning. In September 2015, the Commission for Civil Society and Democratic Engagement published its report, Non-Party Campaigning Ahead of Elections. In his report, my noble friend reviewed the campaigning rules and found that it was,

“far from clear the extent to which it was the reality of the legislation’s provisions rather than the perception of what restrictions they imposed, which affected organisations’ behaviour”.

This makes sense. Nothing within the 2014 Act was intended to change the basic way in which third parties campaign and register with the Electoral Commission. In its briefing for this debate the Electoral Commission said:

“We continue to work with the charity and voluntary sectors and other campaigners to ensure that they understand the rules and are confident about campaigning. In particular we are working on addressing the misplaced perceptions about the rules that might cause a ‘chilling effect’ amongst campaigners”.


The Electoral Commission commented on the rules in one of its reports on the 2017 election. In November last year it published its report, Political Finance Regulation at the June 2017 UK General Election. The Electoral Commission said:

“For the most part, we are pleased to observe that parties and other campaigners intended to, and did, comply with election spending and funding rules”.


I shall try to deal with some of the points made during our debate. The rules for joint campaigning were raised. Working together with other organisations on common causes is a well-established feature for most civil society organisations, charities and trade unions, and it is important that when it happens at an election, the rules on third-party campaigning capture this activity.

The rules on joint campaigning prevent undue influence by ensuring that spending limits are respected and that they cannot be evaded by a joint campaign falsely claiming to be separate campaigns. My noble friend Lord Hodgson spoke about those who were not angels and what he called outliers, who are all too ready to abuse the spending rules. Joint campaigning rules are important to ensure transparency about which groups are campaigning together on a particular issue and what they are collectively expending.

The issue of snap elections was raised. Whether we will have more snap elections after the result of the most recent one, I am not sure. The regulated periods for elections are clearly set out in PPERA. Also, with the passing of the Fixed-term Parliaments Act 2011, the start date of regulated periods in advance of scheduled general elections should be known with greater certainty than was the case before, so unexpected general elections—it says here—should be less frequent.

I was also asked whether the regulatory period should be changed from 12 months to four months. The regulated period for third parties is the same as for political parties, and having any difference between the two is likely to increase the complexity of election law. If one did that, one would need an amendment to require an anti-avoidance provision to prevent third parties being used as fronts for a political party or campaigner during any period where third-party campaigners were not regulated but political parties were.

The noble Lords, Lord Wallace and Lord Kennedy, raised the issue of transparency of income for campaigning charities. Your Lordships’ Select Committee on Charities published a report in March 2017 called, Stronger Charities for a Stronger Society. It stated:

“We do not believe that significant additional regulation of the sector through increased mandatory reporting requirements would be desirable, as this would be a substantial bureaucratic burden on smaller charities”.


Of course, the Charity Commission has done much in recent years to improve the information publicly available about charities and is now consulting on changes to its annual return, which would further increase charities’ transparency.

In a nutshell, the 2014 Act did not target charities and has never prevented charities or other organisations from campaigning in line with the law. In the 2017 general election, 68 charities registered as third parties with the Electoral Commission, which was an increase from 2005, when 25 charities registered. The Act, piloted so capably by the noble Lord, Lord Wallace, is about giving the public more confidence in the way third parties interact with the political system. It makes the political system more accountable and prevents opaque and unaccountable groups spending large sums of money attempting to influence the political system.

My noble friend Lord Hodgson suggested a number of changes to the 2014 Act. I am happy to say that we are making progress with one of them: the suggestion that imprints should be required for electronic material as well as on printed material for third parties. We recognise the growing number of campaigners using social media to convey their message to the public—a point well made by the noble Lord, Lord Tyler. On 29 July this year, the Cabinet Office launched an open consultation, Protecting the Debate: Intimidation, Influence, and Information, which seeks views on proposed changes to electoral law, including the inclusion of imprints on digital campaign materials. The consultation will close at midnight on 22 October. We have doubts about implementing my noble friend’s package of recommendations and we have made it clear—I understand my noble friend’s disappointment—that we will not legislate on this. During our debate, a number of noble Lords have suggested that we need to further revisit the legislation in the light of the experience in recent elections. My noble friend was keen that his recommendations be taken forward as a single package.

To take one of those recommendations, a principal one, perhaps—to amend the definition of “regulated activity”—the Government agree with the Electoral Commission that no amendment to this definition is required. The commission believes that the current definition works well. It covers spending which can reasonably be regarded as intended to promote or procure electoral success. I say to my noble friend that I have made detailed inquiries about this and I am advised—and I am bound to say that I agree—that moving to a test of actual intention would be difficult to regulate and enforce. He made the point that this phrase occurs within the Representation of the People Act 1983 and asked why it could not simply be moved across. The intention test in that Act is appropriate for candidate spending and referendum campaigning since, in those cases, it is obvious that the candidate or campaigner has that intention. It is not suitable, however, in the case of third-party campaigners, who have a different background. Their campaigning may be issue-based and one cannot simply transpose that provision across.

A number of general points were made by the noble Lords, Lord Tyler and Lord Kennedy, about broader confidence in the electoral system. I say to both of them and to the House that the Government will be working towards a comprehensive programme of reform over the next few months and years to ensure that our electoral system is fit for purpose and enhances confidence in our democratic institutions. Finally, I assure noble Lords that we are committed to ensuring that third-party campaigners can continue to play a meaningful role in the democratic process. We need to strike a balance between, on one hand, the rights of people and organisations to campaign and, on the other, maintaining the integrity of the electoral process by having transparency of expenditure. We believe that the current legislation does this, but we will continue to work with the Electoral Commission, voluntary organisations and charities to ensure that the legislation is fully understood and clarified, where necessary, so that the crucial balance that I referred to is maintained.