Clause 26: Meaning of “controlled expenditure”
1: Clause 26, page 13, line 45, leave out from “that” to “on” in line 46 and insert “the offence would not have been committed”
My Lords, the Government signalled during Report that they would bring forward a number of technical, clarificatory amendments for Third Reading. Amendments 1 and 17 are such technical drafting points. These amendments relate to Amendment 38 debated on Report, which adjusts the code of practice defence for third parties. As I indicated on Report, there were two points of detail we wished to put right. The defence should also apply to a situation where expenditure may have been incurred on behalf of the third party. It should also apply for a charge in relation to a targeted expenditure offence. These amendments do just that.
This group of amendments also includes amendments relating to the use of Welsh translation and the Welsh language. I am not sure whether the noble and learned Lord, Lord Morris of Aberavon, is present, but I will leave it to him and the noble Lord, Lord Wigley, to speak to those amendments. I should just put on record that we are very grateful to the noble and learned Lord and to the noble Lords, Lord Wigley and Lord Elystan-Morgan, for their constructive engagement on this. I think that we have arrived at a satisfactory outcome. I beg to move.
My Lords, I apologise that I arrived in the Chamber slightly late due to the crush of noble Lords seeking to leave it. I thank the Minister for the movement that he has made on the interpretation of the amendment that was put down by the noble and learned Lord, Lord Morris of Aberavon. Clearly, the Minister’s intention—and our intention with our amendments put forward earlier—was to ensure that not only the literal translation costs but also the costs of implementing that translation were allowable; otherwise, it would not be meaningful. The Minister has now accepted that principle, for which we are very grateful. It will be welcome in Wales.
My Lords, I should explain for the benefit of your Lordships’ House that it is the Government’s intention to accept Amendment 25 —when we come to it—in the name of the noble and learned Lord, Lord Morris of Aberavon, which meets the points that the noble Lord, Lord Wigley, was talking about.
Amendment 1 agreed.
Clause 27: Arrangements between third parties notified to the Electoral Commission
Amendments 2 to 7
2: Clause 27, page 15, line 12, leave out “section 94A(5)” and insert “section ”
3: Clause 27, page 15, line 17, leave out “section 94A” and insert “section 94B(3) to (7)”
4: Clause 27, page 15, line 20, leave out “section 94A” and insert “sections 94A and 94B”
5: Clause 27, page 15, line 21, leave out “section 94A” and insert “sections 94A and 94B”
6: Clause 27, page 15, line 23, leave out from beginning to end of line 18 on page 16 and insert—
““94A Arrangements between third parties notified to the Commission
(1) A recognised third party may, at any time before the end of a regulated period, send a notice to the Commission—
(a) stating that it is party to an arrangement of the kind mentioned in section 94(6),(b) undertaking to be a lead campaigner in relation to the arrangement, and(c) identifying one or more other third parties that are parties to the arrangement and have undertaken to be minor campaigners in relation to it.(2) A recognised third party that has sent a notice under subsection (1) may, at any time before the end of the regulated period, send one or more supplementary notices to the Commission identifying additional third parties that are parties to the arrangement and have undertaken to be minor campaigners in relation to it.
(3) As from the date of receipt by the Commission of—
(a) a notice under subsection (1), the recognised third party that sent the notice becomes “a lead campaigner” in relation to the arrangement;(b) a notice under subsection (1) or (2), a third party identified in the notice becomes “a minor campaigner” in relation to the arrangement.(4) A notice under subsection (1) or (2) may not—
(a) identify as a minor campaigner a third party that is a lead campaigner in relation to the same arrangement, or(b) be sent by a recognised Gibraltar third party.(5) The Commission must, as soon as reasonably practicable after receiving—
(a) a notice under subsection (1), enter in the register maintained under section 89 (register of notifications) the fact that the recognised third party that sent the notice is a lead campaigner in relation to the arrangement;(b) a notice under subsection (1) or (2), enter in that register the name of each third party identified in the notice and the fact that it is a minor campaigner in relation to the arrangement.(6) For provision about the effect of sending a notice under this section, see section 94B.
94B Effect where arrangements are notified under section 94A
(1) Subsection (2) applies where controlled expenditure is incurred during a regulated period in a part of the United Kingdom—
(a) by or on behalf of a minor campaigner in relation to an arrangement, and(b) in pursuance of the arrangement.(2) The expenditure is treated for the purposes of sections 96 to 99A (returns as to controlled expenditure) as having also been incurred, during the period and in the part of the United Kingdom concerned, by or on behalf of any lead campaigner in relation to the arrangement who sent a notice under section 94A(1) or (2) identifying the minor campaigner.
(3) In determining for the purposes of section 94(3)(a) whether a limit is exceeded by a third party during a regulated period, controlled expenditure incurred by or on behalf of the third party is to be disregarded if—
(a) conditions A and B are met in relation to the expenditure, and(b) condition C is met.(4) Condition A is that the expenditure—
(a) is incurred in pursuance of an arrangement that has been notified to the Commission under section 94A(1), and(b) is, by virtue of section 94(6), treated for the purposes of section 94 and Schedule 10 as incurred by or on behalf of the third party.(5) Condition B is that the third party is, at the time the expenditure is incurred, a minor campaigner in relation to the arrangement.
(6) Condition C is that—
(a) the total of the controlled expenditure incurred during the regulated period in any part of the United Kingdom by or on behalf of the third party, disregarding any expenditure in relation to which conditions A and B are met, does not exceed the limit for that part mentioned in section 94(5), and(b) in the case of a regulated period in relation to which any limit is imposed by paragraph 3, 9 10 or 11 of Schedule 10 (periods involving parliamentary general elections), the total of the controlled expenditure incurred during the regulated period in any particular constituency by or on behalf of the third party, disregarding any expenditure in relation to which conditions A and B are met, does not exceed the limit mentioned in section 94(5ZA).(7) References in subsection (6) to controlled expenditure incurred by or on behalf of the third party include controlled expenditure that is, by virtue of section 94(6), treated for the purposes of section 94 and Schedule 10 as so incurred.””
7: Clause 27, page 16, line 18, at end insert—
“( ) In section 99 (declaration by responsible person as to return under section 96), after subsection (2) insert—
“(2A) Subsection (2)(b)(ii) does not apply to expenses that are treated as incurred by or on behalf of the recognised third party by virtue of section 94B(2) (arrangements between third parties notified to the Commission).””
Amendments 2 to 7 agreed.
Clause 28: Changes to existing limits
8: Clause 28, page 16, leave out lines 24 to 32 and insert—
““(a) either—(i) during a regulated period, any controlled expenditure is incurred in a part of the United Kingdom by or on behalf of a third party in excess of the limit for that part of the United Kingdom mentioned in subsection (5), or (ii) during a regulated period in relation to which any limit is imposed by paragraph 3, 9, 10 or 11 of Schedule 10 (periods involving parliamentary general elections), any controlled expenditure is incurred in a particular parliamentary constituency by or on behalf of a third party in excess of the limit mentioned in subsection (5ZA),”.”
Amendment 8 agreed.
9: Clause 28, page 16, line 38, leave out “0.05% of the total” to end of line 40 and insert “£5,000”
My Lords, this amendment seeks simply to tidy up an anomaly created by the government amendments here and on Report. My noble and learned friend informed us on Report last week that the threshold for registration would be £20,000 in England, £10,000 in each of Scotland, Wales and Northern Ireland, or £9,750 if the spending was to take place in one constituency. In other words, the lowest of the spending limits in the Bill—the £9,750 constituency limit—is exactly equal to the threshold for registration if the activity is focused in that constituency.
The Government’s approach is the same as that I took in my initial amendments on thresholds in Committee. However, I was then persuaded by the Electoral Commission, with the very explicit advice that,
“this approach would cause significant workability problems, since in practice campaigners will either remain below the registration threshold or will be in breach of a spending limit”.
It went on:
“We therefore do not support this amendment”.
The very valid point it was making was that, if you need to have a point of registration, it must be lower than the spending limit with which the activity is concerned, so there are two quite separate processes. First, an organisation says, “I am spending X, so I need to register”. Then it goes on to say, “I have now spent Y, so I cannot spend any more”. The commission has said very clearly on a number of occasions that X and Y cannot be at the same level, but that is the effect of the present situation arising from the recent government amendments.
My amendment therefore sets X, which is the threshold for registration if you are spending in just one or two constituencies, at £5,000 and leaves Y—the Government’s proposed constituency limit—at £9,750. This provides the process of spending, registration, more spending, then reaching the limit—which is exactly what the Electoral Commission has indicated is desirable and essential. I therefore hope that the Minister will recognise that, even today, the Electoral Commission is saying that the Government’s amendments in this area are just not quite right. Importantly, they are defective.
Indeed, citing the exchange we had, the Commission says:
“Ministers suggested that where an unregistered campaigner reaches the limit on spending in a constituency, it must register with the Commission. We do not think the Bill in fact has the effect of requiring registration, although it makes it an offence for an unregistered campaigner to spend in excess of the £9,750 constituency limit”.
We simply cannot afford to ignore this strong advice from the independent commission, which was set up by Parliament—and is responsible to it—to monitor and police the law. I admit I do not know quite why it disagrees with the Minister because as he and I read the Bill the campaigner would have to register if their spending in a constituency reached £9,750. However, it is really serious if anything is not clear, and this is unclear. It is therefore the responsibility of your Lordships’ House to sort it.
As I said on Report, even if the Bill does what my noble friend intends, it would still leave a position where a limit in the Bill could be reached—or very nearly so—without any expenses return having to be submitted. I cannot think of any other area of electoral law where this is the case. It is necessary for the constituency threshold to be lower than the constituency spending limit. None of that affects the very welcome and desirable changes to the effective national thresholds made by my noble friends on the Front Bench. These changes were desired by all sides and will ensure that smaller, national organisations are not brought within the purview of the legislation. However, it is crucial to get the operation of the constituency limits right. Their introduction is at the heart of what the Bill is for. If we get that wrong, people will ask why on earth we brought it in in the first place. I am sure the Minister will not introduce the red herring of RPA limits which are not relevant because if they were sufficient to deal with this problem much of this section of the Bill would not be necessary at all.
Without the changes I am suggesting, there is not only the workability question raised by the Electoral Commission but an in-principle problem. Somebody could spend £19,499.98 in two English constituencies—£9,749.99 in each—without even registering. I am not wedded to the figure of £5,000, but it is quite a considerable sum for any organisation to which we are currently referring to spend in a particular constituency. If my noble friend wishes to look at it again, it could be £6,000 or £7,000. The key issue is that it must be less than the limit figure. I remind noble Lords on all sides of the House—especially ex-MPs—that there are stringent, carefully monitored constraints on the amount that a candidate can spend and paperwork is required for well below £9,750 from every candidate in every constituency. Leaving things as they are would create a real loophole whereby a campaigner could exert a significant effect on a constituency result without any public knowledge of the spending or the source of the money. Where is the transparency there? This could undermine the whole purpose of the Bill.
On that basis, I hope the Minister can either accept this amendment, perhaps knowing he will need to tidy it up tomorrow in the other place, or undertake to bring forward tomorrow anyway a government amendment in lieu to sort out lines 38 to 40 on page 16. I am sure that the Electoral Commission would support any such change. This is no big policy change: it is just recognition of a chance to get right something fundamental to the operation of the regime which the Bill puts in place. I beg to move.
My Lords, I recognise the strength of feeling with which my noble friend Lord Tyler moved his amendment; indeed, it is one to which he has spoken in the past, and one which he, I and—at some stage—my noble friend Lord Wallace of Saltaire have discussed. We debated this issue last week when the Government tabled, and the House accepted, amendments which raised the third-party registration thresholds to £20,000 for England and £10,000 for Scotland, Wales and Northern Ireland.
An amendment providing for a new “third” registration threshold of £9,750 was also tabled and accepted. If that was not made clear, I apologise. The point has been picked up by the Electoral Commission. Perhaps I may give some clarity. This third threshold has been introduced to provide alignment with the constituency limits. It ensures that a third party, whether or not it is already registered with the Electoral Commission, will have committed an offence if it spends more than £9,750 in a constituency. In other words, if a third party is already registered, it will be subject to the constituency limit, exceeding which will be an offence. If it is not registered and exceeds the constituency registration threshold, it will also have committed an offence.
I hope noble Lords will recognise that this third registration threshold has not been introduced with the same purpose in mind as that which applies to the other registration thresholds. It has not been introduced to bring third parties into the regulatory regime. Instead, its principal purpose is to ensure that the offence of exceeding the constituency limit operates as intended. For this reason, the Government do not believe that there is a need for a registration threshold lower than the constituency limit.
I hear what my noble friend says about the need for clarity, and I hope that these words have brought greater clarity. I can also tell your Lordships that the Electoral Commission will make very clear in its guidance the operation of the various registration thresholds so that campaigners are left in no doubt about their responsibilities. I hope that the fears which my noble friend expressed on Report, that it would not be possible to keep account of what a third party was spending in a constituency, are resolved by this.
Moreover, the Government have spent a significant amount of time listening to the concerns of campaigners. Perhaps I should address my noble friend’s suggestion of a £5,000 limit. He said that £9,750 is a significant amount. We took seriously the representations made by campaigners, organisations, the commission chaired by the noble and right reverend Lord, Lord Harries of Pentregarth, and other Members of your Lordships’ House. One of the largest criticisms the Bill received, which was made abundantly clear to us, related to the registration thresholds. They were originally set at £5,000 and £2,000 in the Bill but the Government tabled an amendment last week to raise these to £20,000 and £10,000. This major concession was made with the intention of reassuring campaigners that the Bill would not seek to promote the principle of transparency by imposing onerous and unnecessary burdens on third parties. It was a direct response to the debates in and outside this House and I thank again all those who contributed to them. The increased thresholds mean that small campaigners need not worry that they will be unduly burdened by the Bill’s reporting requirements. The thresholds have been set at a level such that those campaigners who spend only small amounts of money will effectively be excluded from the regime.
I totally accept that this is a judgment call. I hear what my noble friend says about spending up to £9,750 but I also think it was my noble friend himself who made the point in our first Committee sitting that greater transparency goes hand in hand with a greater administrative burden and regulation. We have sought to try to strike the right balance. With regard to constituency spending, we believed that the lower threshold of £5,000 could risk capturing exactly those small local campaigners who have been so clear regarding their concerns about the impact that the Bill would have on them. It was not our intention to do so, and we certainly do not want to unpick some of the important work—
The noble Lord, Lord Tyler, made clear in his contribution that the Electoral Commission was concerned about the lack of clarity. The noble and learned Lord is not answering that point. Is the commission simply to be ignored?
Perhaps I may add to the point made by the noble Lord, Lord Campbell-Savours. The amendment of my noble friend Lord Tyler very much simplifies the administration. It sets a clear limit—rather clearer than the percentages in the original Bill. Given that, given the real problem about bureaucracy and fights with transparency in the Bill, and given that all of us appreciate the major changes made already, would the Minister not consider the advantages of both clarity and transparency in accepting this amendment?
Both interventions raise the same point. I say to the noble Lord, Lord Campbell-Savours, that I tried to explain how the £9,750 registration limit comes into play, but I also went on to indicate that the Electoral Commission, in its guidance, will make very clear the operation of the various registration thresholds, including this one with regard to the constituency limit, so campaigners should be in no doubt. In response to that and to my noble friend Lady Williams, I have a lot of sympathy with the point, but the figure of £5,000 is better than a percentage. I do not want to embark on the theology of the percentages because they run through the Bill, but the figure itself will appear in the guidance from the Electoral Commission.
One of the concerns about the administrative burden is that smaller organisations could be caught up. It may be that in one particular constituency there is one constituency issue with which a small campaigning group has become engaged. If we set the limit at £5,000, they may find suddenly that they have to put in place a bureaucracy and administration to deal with that. The higher limit of £9,750 would probably address such concerns, which is what we want to try to ensure. It is often so when you have an individual campaign in an individual constituency. I accept that there is no perfect answer to this. It was a judgment call as to whether we should keep the limit as low as £5,000 or, having listened to those who thought that was too low for individual constituency cases, whether it might be possible to raise the sum. For that reason and to strike that balance, we thought that £9,750 was an appropriate amount. Therefore, I invite my noble friend to withdraw his amendment. I give way to the noble and learned Lord, Lord Morris.
My Lords, I apologise for having misread the grouping of my amendment as scheduled. I will now make a brief comment. I understand that the Minister has referred to it already and to what my attitude is.
In our previous debate on Report on the costs to third parties of Welsh-language publications, which I thought to be excluded from the ceiling on third-party expenditure, I welcomed the helpful comments of the noble and learned Lord, Lord Wallace, which were in the same vein as those made in Committee by the noble Lord, Lord Gardiner of Kimble. The failure to be aware of how well used the Welsh language is in campaigning, in documents and in many other ways, has become obvious. It is very different from the time, long ago in the 1960s, when I was a young Transport Minister struggling with officialdom to meet the demand for Welsh forms and licences. As the noble and learned Lord, Lord Wallace, said, the oversight goes back to the 2000 Act. If this short debate does nothing else, it will remind policymakers and draftsmen that the Welsh Language Act 1993 was passed and that there was a sea change in the use of the language.
The noble and learned Lord, Lord Wallace, indicated that I went too far in seeking to extend the excluded costs beyond the payment to a translator. I understand that argument, but an organisation could publish a modest amount of literature in English and flood the electorate with Welsh material a hundredfold bigger. My main point remains that, on a narrow interpretation of Amendment 25, an organisation might be inhibited from actually producing Welsh material. In my view, you have to produce paper to be able to translate it, and I argued accordingly. I believe that the Minister was then taking a more restricted view. However, the noble and learned Lord, Lord Wallace, said that there was not much between us and that we should try to reach a consensus without creating loopholes whereby much more material was produced. I suggested that, in the short time available, the Government might seek the views of the Electoral Commission.
When I returned to west Wales late on Friday afternoon, I was encouraged to receive a telephone call from the noble and learned Lord, Lord Wallace, from Edinburgh, for which I thank him very much. That was indeed a long-distance negotiation. I kept the Welsh Language Commissioner in Cardiff informed. I understand that the Electoral Commission has been consulted following my suggestion and has agreed to the new form of words. The amendment has been drafted by parliamentary counsel, to whom I am grateful.
I would therefore be very interested in the guidance that the Minister will give regarding the interpretation of this amendment. The words “in consequence of” can have a wide connotation. If it is a wide connotation we have no fears, but if it is narrow and restricted the problem will remain. For example, I was e-mailed in the past few days by, I believe, a representative of an organisation that had to publish its reports bilingually. The full cost of its recent annual report—design, print and second-class postage—amounted to £9,508. The translation cost was £835—about 9%. It believes that the full cost of the bilingual translation was 50% of the total. It would appear that while 9% would be discounted on a narrow interpretation of this amendment, 41% could not. Therefore, the Minister’s guidance on this amendment is crucial; otherwise organisations will be inhibited from providing Welsh-language material, which is a mischief that we and, I believe, the Government —and certainly the Welsh Language Commissioner—seek to avoid.
The Minister reminded me of the review that will take place on the workings of the Act. If this consensus does not work—I hope that it will—it may be necessary to take a further look at the matter.
My Lords, it may be helpful if I respond to the points made by the noble and learned Lord. I had already indicated that the Government are willing to accept Amendment 25. The noble and learned Lord, along with the noble Lords, Lord Wigley and Lord Elystan-Morgan, raised this important issue on Report. It is the case that costs should not be limited to the fee of the translator but should include other costs that arise as a consequence of that translation. We believe that Amendment 25 achieves that aim. It certainly enjoys the full support of the Government. All costs incurred as a consequence of the translation of materials to or from Welsh will not count as controlled expenditure. For example, when a three-page leaflet in English is translated into Welsh and becomes a six-page document, the additional costs of printing and paper will not be counted as controlled expenditure.
There was a general consensus when we debated this in the past. Certainly the Government do not wish to see a situation in which a campaigner could increase their effective spending by clever use of materials in different languages. That is not a result that any of us wanted. We believe that Amendment 25 achieves the right balance between excluding costs in connection with translation without creating the loophole. I think that we have struck the right balance, but as the noble and learned Lord said, there will be a review after the 2015 election. If some practical difficulties arise in the course of it, that matter will almost certainly be discussed; it would be appropriate to discuss it in the context of that review. I hope that that gives the noble and learned Lord the necessary reassurance.
I am most grateful to the Minister for his help. I shall not press Amendment 26.
If I may return to Amendment 9, my noble and learned friend made the very fair comment that this is a judgment call. It is not just my judgment with which he has a problem; it is the judgment of the Electoral Commission. I shall read again what it said, as I do not think my noble and learned friend covered this point. It said previously that if a registration threshold is identical to a limit, there is a problem. It said that,
“this approach would cause significant workability problems, since in practice campaigners will either remain below the registration threshold or will be in breach of a spending limit. We therefore do not support this amendment”.
That is precisely where the Government’s amendments have left us.
As I also said, I am not wedded to the figure of £5,000. If it were necessary, we could go up to £8,000. The key point is that there must be a gap between the registration threshold and the limit. That is not my advice but the advice of the Electoral Commission. That is its judgment call. Therefore, I must invite my noble and learned friend to think carefully before this element of the Bill is considered by our colleagues in the other place tomorrow—as it will be, since there will be government amendments that they will be addressing—as to whether there is not some way that we can deal with this very serious problem. On the basis that I still regard this as an important judgment call—one on which I think my noble friends and I differ, the Electoral Commission being on my side—I am happy for the time being to withdraw this amendment.
Amendment 9 withdrawn.
Clause 29: Constituency limits
10: Clause 29, page 17, line 36, leave out “that Schedule” and insert “Schedule 10”
Amendment 10 agreed.
11: Clause 29, page 18, leave out lines 5 to 18 and insert—
“(1) For the purposes of this Schedule “third party constituency expenditure” means controlled expenditure incurred by or on behalf of a third party in relation to—
(a) election material falling within paragraph 1 of Schedule 8A which is addressed to electors (whether addressed to them by name or intended for delivery to households or otherwise distributed within any particular constituency or constituencies), or(b) unsolicited telephone calls falling within paragraph 2 of Schedule 8A, made to such electors or households which can reasonably be regarded as intended to ascertain or influence their voting intention,where the effects are wholly or substantially confined to any particular constituencies or constituency.(2) Third party constituency expenditure—
(a) shall be attributed to those constituencies in equal proportions, or(b) shall be attributed solely to that constituency,as the case may be. (3) For the purposes of sub-paragraph (1), the effects of third party constituency expenditure are wholly or substantially confined to any particular constituencies or constituency if—
(a) there is no significant effect in any other constituency or constituencies, and(b) it can reasonably be inferred that the third party selected the relevant electors or households (or both) or otherwise distributed the material wholly or substantially to contact electors in the particular constituency or constituencies and not a wider section of the public.”
My Lords, I recognise the great importance of constituency limits, and believe that there should be real restraints in place to stop large sums of money distorting an election result at constituency level. There is therefore no disagreement about the purpose of this clause. However, as the original draft did, the current version has grave drawbacks.
First, in its briefing before Second Reading, the Electoral Commission said in effect that it was unworkable and unenforceable. Its exact words were that, even if it were given extra resources,
“it will be challenging to obtain robust evidence to determine and sanction breaches in specific geographical areas, for example, regarding the effects of a leafleting campaign or mobile advertising in different constituencies ... it is likely to be difficult to demonstrate that a breach meets the necessarily high test for using a stop notice to intervene to halt campaigning activity”.
Secondly, campaigning groups have pointed out many times that for the most part they are not organised on a national basis, and it would be a huge administrative burden to divide up national expenditure on constituency lines.
Thirdly, a number of campaigns—for example, against a hospital closure or a motorway extension, let alone HS2—cross a number of constituency boundaries. It would be difficult to allocate expenditure in a transparent way that could be policed by the regulator. With a view to keeping constituency limits, but making them more workable and enforceable, the noble Lord, Lord Tyler, brought forward an amendment on Report, but withdrew it in the hope that the Government would bring forward their own amendment to meet these major concerns. In the event, the Government have not done this. I have therefore tabled this amendment, which builds on the concerns of the noble Lord, Lord Tyler, to take into account the point made by the Minister in his response. It also takes into account legal advice to make the wording more precise, clear and therefore workable.
The fundamental principle behind this amendment is to capture, for the purpose of controlled expenditure, activities that can be clearly monitored, costed and enforced. This means,
“election material … which is addressed to electors whether addressed to them by name or intended for delivery to households”.
This was the amendment of the noble Lord, Lord Tyler. I have added the phrase,
“or otherwise distributed within any particular constituency or constituencies”.
This is to meet the point made by the Minister, who said:
“A third party could therefore freely distribute leaflets by hand in a town centre, or, indeed, in shopping areas in different parts of a constituency, in the knowledge that, because they are not being delivered to voters’ homes, the associated costs need not be accounted for in that constituency’s limit”.—[Official Report, 15/01/14; col. 302.]
So, under my amendment, that activity would be captured and would count towards the constituency limit.
The second activity included in the amendment is,
“unsolicited telephone calls … made to … electors or households … which can reasonably be regarded as intended to ascertain or influence their voting intention”.
Sub-paragraphs (2) and (3) proposed in the amendment provide a more detailed definition of what is meant by targeting one or more constituencies. In principle, activities would be subject to constituency limits where the distributional contact is “wholly or substantially” due to their location in one or more particular constituencies. This avoids mailings based on general issues becoming subject to constituency limits where the location of recipients is primarily chosen because they are affected by an issue, or have expressed a concern about it, rather than on an electoral basis. These mailings may be subject to controls on a national level even if they are not subject to the constituency-specific limits.
The amendment before the House today differs from Amendment 52 as tabled on Report by the noble Lord, Lord Tyler, and others in that it would include material distributed other than by delivery to addresses, such as through distribution in shopping centres, and in that it provides a more detailed definition of what is actually meant by targeting one or more constituencies. My proposed new sub-paragraph (3)(a) is, I think, uncontroversial in that it simply repeats wording already contained in Clause 29. Proposed new sub-paragraph (3)(b) is a response to the response of the Electoral Commission, which, in an earlier briefing, said:
“In principle, we support amendment 52, tabled by Lord Tyler and others … We see benefits in defining the scope of activity covered by the constituency controls more narrowly than in Part 2 of the Bill generally. For example, costs relating to material sent to specific addresses can be identified and evidenced with some confidence”.
However, in its further briefing for Report, while reiterating its support in principle for the amendment, the commission was concerned about general campaigns on an issue and how costs associated with them would be allocated to each constituency:
“If Parliament wishes to narrow the scope of the constituency controls so that they only apply to mailings and unsolicited phone calls, we recommend that this should only apply to campaigning that appears intentionally concentrated in particular constituencies”.
Sub-paragraph (3)(b) proposed in the amendment addresses that point, in relation to both telephone calls and leafleting, much more carefully, because it tries to define what is meant by a constituency. In its final briefing, which we received just before this debate, the Electoral Commission says:
“On balance, we support this amendment, which should make the new constituency controls more practicable for campaigners and more enforceable”.
Given the concern this part of the Bill has aroused among third-party campaigners and the concern of the Electoral Commission about its enforceability, and taking into account the additional wording in this amendment to meet the concerns of the Minister and of the Electoral Commission, I very much hope that the Government will be able to accept it. I beg to move.
My Lords, my name is also on the two amendments in this group. I start by very briefly saying that, on some aspects of the Bill, the Government have clearly listened and responded positively, for which we are all grateful. That makes it harder for me to say, as I stand up yet again to carp and complain, that I hope that they will not dismiss the words that I have just used. The reality is that the Government are determined to have Clause 29, which I suspect—even if this modest amendment is accepted by the House today—will have little value except to serve as a warning to future Governments tempted to make constitutional changes without first thinking very carefully about them and the consequences.
The constituency limits introduced in the Bill, which, as we all know, reduce the spending limit to £9,750 in the year of an election, do not do that for candidates or political parties but only for non-party campaigners. We were told at the outset that Clause 29 is necessary to reduce the perception of undue influence. That is curious, because there is no evidence—I have not heard any in the course of any of the lengthy debates—to support a claim that there is any such public perception or that the current combination of PPERA and the Representation of the People Act has been in any way ineffective in relation to non-party campaigning so far. There is no evidence that non-party campaigners are currently exploiting the existing law by focusing their spending on a particular constituency. Indeed, no data are presently available on third-party spending by constituencies.
I appreciate that the Government say, “Ah, well, but this might happen”, and we have heard chilling predictions based on what has happened elsewhere, but the result is a piece of legislation which is a stab in the dark to try to deal with a theoretical loophole. However, the loophole is going to remain wide open because after the Bill is passed there will be no restriction on either candidates or political parties, for which the situation will remain as before. What is to stop a campaign registering as a political party, putting up a couple of candidates and spending the whole of its national limit in one constituency? The answer in the Bill is: nothing.
As the noble and right reverend Lord, Lord Harries, said, unlike candidates and political parties, most non-party campaigns are not organised on a constituency basis, so the administrative impact on them will be huge. It will require new record-keeping and accounting systems, which may well cut across their existing ones. It will certainly deter many of those with limited resources, which most small campaigns have, from speaking up at election time and campaigning, which should be their right.
This will entail serious headaches of apportionment for those involved in cross-constituency campaigns, but nothing like as great as the headaches that the Electoral Commission will suffer before it has to provide guidance for a whole range of possible aspects of constituency campaigning instead of the rightly limited and targeted ones set out in the amendment. What will it say of a rally aimed at a particular constituency but held in the park over the boundary in the next-door one, in the safe seat, where no further spending is intended? What guidance will it give about the meeting that draws people from a number of constituencies; for example, in a campaign to save a local school or hospital with a catchment area that crosses boundaries? What will it advise about the travelling battle bus, with its posters, going back and forth across constituency boundaries? The answer to all those questions at the end of all our debates is: who knows?
What the campaigners make of the Bill, with its disproportionate administrative burden for them and the petty restrictions it imposes, is nothing to what the Electoral Commission will have to try to deal with at election time: the burden of countless allegations from opposing campaigns in constituencies, which the Electoral Commission itself says are likely to be unresolvable,
“within the timescale of an election”.
Apparently, no reassurance or adequate provision is anticipated to enable it to carry out the necessary investigations of those complaints even after polling has taken place.
None of this touches on the ease with which some of the proposed restrictions could be bypassed. I have not yet put my mind to it but I am sure that others will. As I say, what of the rally targeted at the marginal constituency which takes place in the park within the neighbouring safe constituency’s boundaries where no other spending is proposed? Instead of requiring the Electoral Commission, which faces the nightmare task of preparing guidance once this Bill passes, to consider and cover all these possibilities, surely it makes more sense to concentrate the constituency limits on the direct approach—the leaflets, telephone calls and “push-polling”, about which we heard, some of us for the first time, from the noble Lord, Lord Gardiner, earlier—aimed at the constituents in that seat. That is what this amendment does.
As the noble and right reverend Lord, Lord Harries, said, the Electoral Commission supports this amendment; indeed, he read out its words. It has played a part in approving the drafting. I hope that the Government will support it and, if a vote becomes necessary, that the House will.
My Lords, I shall not detain the House for more than a few moments. I put my name to the amendment for all the reasons that the noble and right reverend Lord, Lord Harries, and the noble Baroness, Lady Mallalieu, so splendidly and lucidly outlined. I will underline just one point, which was touched on by the noble Baroness in her concluding words. We have established in this country an Electoral Commission. It surely makes no sense to fly in the face of the commission and make its work more difficult and more complicated when it will have a difficult enough task monitoring the election in May 2015. My noble and learned friend, who has been extremely helpful and has listened with care, has come back to us with a number of improvements to this very unsatisfactory Bill—he himself has made it much more satisfactory than it was when it first came before your Lordships’ House—but I urge him to go just one step further and accept the good sense that is contained in this amendment, and to bear in mind that it has been in part drafted, as the noble Baroness said, by the Electoral Commission. We should listen to its sage advice and incorporate this amendment in the Bill.
Does the noble Lord envisage the third party groups being registered charities? Does he see any inhibition on a third party group being a registered charity?
I suppose that the answer to that question, which is a perfectly reasonable one for the noble Lord, Lord Martin, to ask, is that some would perhaps be eligible but others would not. We know from what we have debated in this Bill that not every such body can become a registered charity; it depends on what the aims are. It is possible that some could, but certainly not all of them.
My Lords, in respect of the comments made a few moments ago by my noble friend Lord Cormack about the Electoral Commission, perhaps I should put on the record that I sit on an informal cross-party advisory group for the Electoral Commission. It is not a pecuniary interest, but it means that I take very seriously its advice.
As the noble and right reverend Lord, Lord Harries, said, Amendment 11 builds on my own amendment on Report last week, and on Amendment 170A in Committee, and I welcome the fact that it is still here for our discussion. However, I believe that too much building has taken place, and I regret to say that I think that the lawyers have been too clever by half. The purpose of my amendment was to simplify drastically the operation of the constituency limit. I wanted to do away with any need for anyone to work out what did or did not have a significant effect on whom. That was the previous test, which I thought was extremely ineffective and very difficult for small organisations to address without great bureaucracy.
In my estimation, if election material that can reasonably be regarded as seeking to promote or procure the electoral success of a party or candidate has been sent directly to an elector in a constituency, it should be counted under the relevant constituency limit. That seems to be a very simple test. Likewise, if unsolicited telephone calls are made to ascertain or influence voting intentions, it is easy to know where the people whom you are calling live and to allocate those costs to a constituency limit. The amendment on Report was about simplicity.
However, my noble and learned friend the Minister made a compelling point on Report last week. He said that materials could be distributed within a constituency other than by delivering them directly to electors’ homes—they could be handed out in town centres, for example. The noble and right reverend Lord, Lord Harries of Pentregarth, has rightly tried to meet that point in proposed new sub-paragraph (1) of his amendment, but the complication of considering whether materials handed out in a town centre are trying to influence a constituency result has led him and his advisers to complicate the amendment with proposed new sub-paragraphs (2) and (3) of the amended schedule. Therein lies a problem.
The cumulative effect is to ask those campaigners—many of them small operations, as we have been constantly reminded—to consider their spending against not one test, as I advocated last week, but three. First, there is my test, which I have already given: are the phone calls and election material directed at a particular elector or household? That is easy. Then we have in this amendment, secondly: does the material have a significant effect just in the constituency to which it was sent? Who can tell? When can they tell? Perhaps they can tell only after polling day. Therein lies another problem. Then there is the third qualification: can it reasonably be inferred that the third parties selected the electors in order to contact electors in that constituency,
“and not a wider section of the public”?
Who will adjudicate on that and when?
I do not know how one can be sure of either of the latter tests, either in terms of the Electoral Commission and its very proper responsibilities, to which my noble friend Lord Cormack has just referred, or of the organisations that have been in touch with us over the past few weeks. I can see that it may be necessary in relation to the narrow issue of handing out leaflets in a town centre. After all, leaflets handed out in the town square of my old North Cornwall constituency would almost certainly be directed at North Cornwall’s results and voters, but leaflets handed out in Trafalgar Square might not be directed only at voters in the City of London and Westminster.
That is a problem—one brought about by the Minister’s legitimate concern about the distribution of leaflets in a town square. If we had more time for drafting, I would be able to find some additional tests, but only for this additional activity of handing out leaflets rather than for all deliveries that could take place. It is a rather complicated point and I apologise for that to Members of your Lordships’ House—but it is an important one.
As the amendment is drafted, it means a loophole is created, permitting direct communication with voters outwith the constituency limit because it could somehow be deemed under sub-paragraphs (2) and (3) of the amended schedule that the materials sent to them were not really supposed to influence the constituency result. I do not buy that, and at this stage it leaves a real lacuna. If you write to a voter in a constituency to promote or procure the electoral success of a party or candidate, I am confident that you are trying to promote or procure their electoral success in that constituency. That is a simple rule, and one it would be simple for campaigners big and small to follow.
At every stage of the Bill, from Second Reading right through to Report last week, I have been concerned to simplify and clarify the requirements placed on campaigners, reflecting what they—the campaigners, who are charities and other organisations—have said consistently to me and my Liberal Democrat colleagues in both Houses, and no doubt to many other Members of your Lordships’ House. None the less, I regret the position we are now in since I have pursued this issue right from Committee.
I return to the point made by my noble friend Lord Cormack: the Electoral Commission still says that it has concerns about the enforceability of a constituency limit. There needs to be a constituency limit. A revised amendment along these lines would make that more effective and much easier to enforce. Combined with the sensible changes to the constituency threshold that I outlined in the debate on the previous group of amendments, the whole regime would be much tighter and more workable, which is what the Bill sets out to achieve.
Following up on the point made by my noble friend Lord Cormack, I promised to refer to the advice given to us by the Electoral Commission. At the end of its advice to us for today, referring to Amendment 11, it said:
“We think this amendment would reduce this problem, but in practice it will still often be difficult to obtain adequate evidence of a breach at a constituency level and deal with it before polling day”.
That is an extremely important point. To that end, I hope that my noble and learned friend the Minister will respond positively to this amendment, even if it means that some simplification must be achieved in the other place tomorrow.
The noble Lord knows that I value simplicity even more than he does. Would he not agree that it was right to try to respond to what the Minister said about the distribution of leaflets, and that if you were doing that, you had to try to define what was meant by focusing on a constituency or influencing the voting intentions of people in a constituency? Would he not also agree that, while there was, of course, a qualification at the end of the last advice from the Electoral Commission that there were probably difficulties remaining, the difficulties with this Bill are now far less than they were originally or even, perhaps, with his own amendment at an earlier stage?
My Lords, in response to that, I certainly agree that the Bill is greatly improved and I pay tribute to the noble and right reverend Lord for the amazing amount of work that he and other noble Lords have undertaken to achieve that purpose.
I regret very much the speed with which we have moved from Report to Third Reading and that we did not have a genuine opportunity—we only had a comparatively few hours yesterday—to look at this together. I regret even more that any amendments passed today, whether government amendments or others that are passed by your Lordships’ House, will be considered by the other place within 24 hours. The short period for discussion of any necessary improvements is very unfortunate. Had his amendment simply brought in the point raised by the Minister about leafleting, and therefore stuck rigidly to the simplicity of the first provision in his amendment, I would be much happier about it.
My Lords, I intervene briefly in this debate because I am struck time and again in the exchanges in this House by the endless pursuit of perfection in an area where I do not think that perfection can be achieved. We have to accept that the best compromises that we can get are the best that we can do by this Bill at this late date. I know that it reflects the failure of pre-legislative scrutiny and I know that it reflects the lack of consultation, but given that we are where we are, I think that the recent amendments put forward—not least the ones by my noble friend and those by the noble and right reverend Lord, Lord Harries of Pentregarth—further improve the Bill. We should be pleased with having produced that effect as the matter goes to the other place.
I completely accept what my noble friend has said that it is a great shame, given the lack of pre-legislative scrutiny, that the gap between the deliberations in this House and those that are starting in the other place tomorrow is, frankly, ludicrous. It does not enable the other place to take into account the very careful and deliberate thought that has been given in this House, not least by the noble and right reverend Lord, Lord Harries of Pentregarth, and his very impressive commission, which most people here agree went into this Bill in great detail, produced some excellent amendments and really gave us the opportunity to say that the House of Lords has made a constitutional contribution of the kind for which it is distinguished in a large range of legislation.
I do not want to detain the House, but I share the view that there are certain limitations on the whole issue of dealing with leafleting and all the rest of it. I also recognise that what has come out of this is the best attempt we could make to simplify an extremely complex Bill and to keep as largely as we can the concept of constituency limits.
I have the greatest respect for outstanding intelligence, but I think that, in what the noble Baroness, Lady Mallalieu, said in her defence of the position she would like to see, she went a bit far. I think that she should have been a bit more fair about the extraordinary efforts made by Ministers in this debate to try to meet some of the points that she so forcefully made about the need to protect the freedom of speech and expression of the non-party campaigning groups. She is quite right about that, but I think that she was less than generous in her failure to recognise the extent—by raising the threshold and other ways—to which Ministers have tried to meet some of the arguments that she and some of her colleagues have made.
Having said that, I hope that Ministers will be able to pay particular attention to elements of what has been said in this House and to draw the attention of the other place—which means that they will have to work very hard tonight, I appreciate—to the points that have been made here that have not altogether been carried out. Having said that, in a very constrained situation, I think that this House and the commission can legitimately say that they have made a very substantial contribution to making this complicated Bill as good as it could be made.
My Lords, I come in briefly, having listened to the arguments surrounding this amendment. The noble Baroness is quite right that we cannot get perfection, but I wish that we could put on record and give due consideration to the men and women who, when a general election or municipal elections come, put their names forward as parliamentary candidates. I had the good fortune to be in a constituency where, although I hated the term “safe Labour seat” and cringed whenever anyone said it because the seat had to be worked at, I had significant admiration for those candidates who came into that constituency and said that they were flying the flag for their party—Conservatives, Liberals or the SNP. Remember that many of us get to our feet and talk about the new democracies in Africa and those that used to be behind the iron curtain, but one thing that we have to do as parliamentarians is to teach people how to be parliamentary candidates.
That brings me on to these campaign groups and it is why I asked the noble Lord, Lord Cormack, whether they might be registered charities. The noble Lord, Lord Tyler, said that they might be, if I picked him up correctly. Let me look at the registered charities which embark on campaigns. I know that the situation is different now when a general election is called, because we have got ourselves this five-year election term and people see that we can go right to the wire on a given date, five years from the previous election. In the old days, we used to sit in the tea room in the House of Commons wondering when the Prime Minister was going to go to the country, which meant that the campaign groups could not put the kettle on and say that it would be on a certain date—even those who were closest did not know that. Now that we have this five-year situation, perhaps I might send a message out to people in charities that they should use their heads. If they want to campaign, they have four years and three months, I think, in which to campaign. They should let the general election take its course with the parliamentary candidates because there is a danger here.
Let us take hospital closures, which the noble Lord mentioned. We all hate to see hospital closures, but we know that certain people have sinister reasons for being involved in a campaign, which is to embarrass a certain parliamentary candidate. I have heard the term “putting up score-cards” used during this debate. Some of these campaigns put up score-cards and say, “This is a good candidate, who has campaigned against the closure of a given hospital”. What if it was a Minister in that constituency who was holding office and had another portfolio? That Minister would not be allowed to say, “Don’t close that hospital”, yet some of these campaigners choose not to see that and say, “This is the good guy who is prepared to campaign, while your sitting Member of Parliament has been silent”. We know full well that the reason he or she has been silent may be that they are holding the office of Secretary of State. They could be holding the office of Prime Minister. However, what they have been doing in the background may have been excellent in fighting for the local community and its hospital.
I say to the charities that they really have to watch what they are doing. Every time I give to a charity, I am asked whether I am a taxpayer. If I am, the Inland Revenue will give money to that charity, so a high proportion of what charities are receiving involves the public purse and they should be careful about what they are doing. Also, it might be argued that a campaign body in an area that has no charitable status may call on other groups that have charitable status to support it.
I do not know if I am articulating my point properly, but we must give serious thought to the fact that decent men and women get into these constituencies during the general election and fight in good faith. It is wrong for some of these campaign groups to get involved when the democratic process, such as a general election, is on.
My Lords, first, I endorse the words of the noble Baroness, Lady Williams, about the work of what by way of shorthand we call the Harries commission. The noble and right reverend Lord and his colleagues have done both the charity sector and this House an enormous service.
As we have emphasised, we have two problems about the Bill’s brand-new constituency limits, which obviously apply to the wider issues covered by the Bill, which might in theory have an effect in one or more constituencies. The major problem has already been articulated: it is not their intention or purpose, in the words of the noble and right reverend Lord, Lord Harries, but their workability. Charities and campaigners simply do not organise or do their accounts or even think in constituency terms. They focus on the proposed path of the HS2, the flight paths around Heathrow, the ground under where fracking will take place, the location of badger sets or the location of a polluting factory. That is the focus for their work.
For them, therefore, a requirement to record and account for their staff time and expenditure on a whole new geographical basis—indeed, on boundaries which are probably unknown to their accounts department—will be highly problematic. It will add enormous bureaucracy when, as we have said before, the Government are elsewhere trying to reduce red tape. Accounting for expenditure on the basis that it might have an effect on a constituency would require those charities and other groups to develop a whole new financial accounting system, a demand which surely cannot be achieved even by the new and welcome date of September.
Our second concern is also one that has already been mentioned. It is the worry of the Electoral Commission about whether the new constituency limits are enforceable in the timescale of an election. There is nothing worse than having a rule or a law that is unenforceable, because it undermines the rest of the law. The Electoral Commission considers that Amendment 11 would at least reduce its enforceability worries, although it still fears that it would often be difficult to get the information and evidence for any breach of constituency-level spending and deal with it before polling day. Amendment 11, which, as we have heard, limits the new reporting requirements to telephone calls, literature to households and physical distribution in a defined area, seems to us eminently sensible. That sort of spending is preplanned and easy to measure. As the Electoral Commission says in supporting the amendment,
“We see benefits in defining the scope of activity covered by the constituency controls more narrowly than in Part 2 of the Bill generally”.
Given the widespread support across the House for the amendment, I think that the Government would be well advised either to heed the wise words of the noble Lord, Lord Cormack, and accept the amendment or, at the very least, to undertake not to implement their new constituency rules until after the 2015 election. That would give charities time to think about whether it is possible to do their accounting in that way, and it would give the Electoral Commission the opportunity to sort out those demands on enforceability. I think that the former course is better—to accept the amendment. We certainly support it.
My Lords, I thank the noble and right reverend Lord, Lord Harries, for this amendment and for the opportunity to discuss these issues on constituency limits. It is an issue that has featured in discussions not only today but at previous stages of the Bill’s passage. It is appropriate that we give consideration to this, which members of the commission might see as the outstanding item still to be addressed. The amendments are very similar to those tabled by my noble friend Lord Tyler on Report. My noble friend’s amendment, which we discussed last week, sought to narrow the range of activities which would be considered controlled expenditure for the purposes of constituency limits. Although I made no commitment on the part of the Government to returning to this at Third Reading, I indicated at the close of the debates on Report that we would ensure that officials raised these matters with the Electoral Commission.
I understand the point about simplicity. We have sought in many respects to reduce the administrative burden, but it was clear from the discussions that took place subsequently with the Electoral Commission that there was no technical fix. My noble friend Lord Tyler was almost asking me the same again at the end of his contribution to the debate on this amendment. There was not a technical fix but there might be a policy fix. It is a policy fix that is inherent in the amendment of the noble and right reverend Lord, Lord Harries, which would remove some categories of expenditure from being counted towards the constituency limit. For reasons that I will explain, the Government are unable to accept that there should be that policy switch.
First, I acknowledge that, in moving the amendment, the noble and right reverend Lord, Lord Harries, accepted the principle of constituency limits and sought to address one of the points of concern I had raised with regard to the amendment of my noble friend Lord Tyler. He also sought to address the practical issues raised by the Electoral Commission. In the context of trying to relieve some of the administrative burden—going back to the earlier debate, just to remind your Lordships’ House—it is also important that the original proposals had a limit for the constituency spending and a smaller limit for the post-Dissolution period. There was a much smaller limit for campaigning activity that could be spent between the date of the Dissolution of Parliament and the election. We have taken away that interim threshold, again in an effort to help smaller organisations which may be campaigning in one constituency.
We believe that these amendments would require that any expenditure on election material addressed or delivered to households, and any unsolicited telephone calls made with a view to ascertaining households’ voting intentions, would be attributed to a particular constituency or constituencies for the purposes of the limits. The noble and right reverend Lord’s intention appears to be that only expenditure on such activities should count towards constituency limits. He goes further than my noble friend Lord Tyler did last week to suggest considering the costs associated with the distribution of materials otherwise in a constituency—which was the example I gave. I fully accept the example that I gave of activity in a shopping centre, which clearly would relate to the one activity.
I was somewhat bemused by the point made by the noble Baroness, Lady Mallalieu, when she complained that there was a loophole. It appears to me that if you take away other activities which have to contribute towards controlled expenditure, the loophole gets bigger. She indicated that it could be a loophole to have a rally just over the constituency boundary. First, whether a rally against a hospital closure that promotes the electoral success of one particular candidate counts towards a constituency limit depends on whether it has a significant effect in that constituency. Albeit that it takes place over the boundary in a neighbouring constituency, it could still have a significant effect in the first constituency and would therefore come within it. Of course, the loophole that would be created by this amendment would be the rally in the constituency itself—over the boundary it would not count at all. I believe that is a criticism: there are activities that would not therefore come within the definition of “controlled expenditure”.
Constituency limits for third parties mean that they cannot outspend and overwhelm candidates and political parties, who after all are the main actors in an election. The noble Lord, Lord Martin of Springburn, made an important point, reminding us that elections are about the names of candidates on the ballot paper. It is not right that a candidate or a party campaigning in a constituency could be targeted by a third party with greater means and a greater spending limit at its disposal.
Taking into account both the long and short campaigning period limits, the most a candidate at the last parliamentary general election could have spent was £55,000; that is for the entire period. I may have misunderstood what the noble Baroness, Lady Mallalieu, said, but I thought she said at one point that parties could spend without limit. That is not the case. There is a limit on political parties. Indeed, in the course of the election period—the short campaign from the Dissolution of Parliament—it is roughly £12,000 to £13,000, depending on the number of electors, a figure that was mentioned by my noble friend Lord Cormack in one of our earlier debates.
However, a third party could choose to spend the entirety of its current spending limit in one small area, campaigning against that and other candidates or the parties they represent. That could be very substantial if one allows a range of activities not to be in any way brought into controlled expenditure. We have previously heard concerns that third parties, although an important part of the democratic process, can also be so closely aligned to a political party as to be effectively campaigning to promote that party. It is right that we take account of that. That is why the Bill introduces a number of provisions to give greater transparency to the activities and expenditure of third parties. The limits on constituency spending are a key element of the entire package in the Bill. The controlled expenditure incurred on the entire range of activities, not just those few proposed by the noble and right reverend Lord, Lord Harries, should be attributable to constituency limits.
Third parties are not merely in the business of distributing leaflets. They arrange and hold events, rallies and press conferences. They bus campaigners from area to area, delivering large groups of people to distribute those leaflets, or to take part in rallies or other events. Not to include these activities would mean that third parties could still continue to hold local media events on a weekly, or even daily, basis in the run-up to an election without any of that expenditure being brought within controlled limits. It would mean a third party could hold a rally on the eve of an election, secure in the knowledge that it need not account for the cost other than on a nationwide basis. It would mean that a third party could bus hundreds of campaigners into marginal constituencies and overwhelm the work of the candidates in that constituency.
These are all significant activities, and it is right that third parties should be required to account for them on a constituency basis. Narrowing the scope of constituency limits would address only half the problem. On that basis, recognising that in an election the actors are the candidates themselves, it was unfair, particularly in the period from the Dissolution of Parliament until the election, that they were limited to a relatively small sum of money—£12,000 or £13,000—while if you got two third-party groups in the same constituency, they could spend up to £19,750. We do not think that it is reasonable that a loophole should be created.
I would be most grateful if the Minister would reflect on one suggestion. I think that he would agree with me that Clause 29 is not the easiest of clauses to understand, particularly for those who are not familiar with legislative language. Would the Minister be prepared to have a conference with the Electoral Commission to try to draw up some mutually agreed guidelines to, and interpretation of, this new law? It is very important, and that would be extremely helpful—particularly bearing in mind that we have this ridiculous businesses of the Bill being in another place tomorrow. I cannot see the reason for that; maybe the Minister could comment on it.
Before the Minister finishes his speech, may I, too, ask him a question, to which I would be grateful for a response? All the examples that he has cited seem to be hypothetical. What examples does he have of the kind of conduct that he is railing against actually taking place? Where is the mischief that he seeks to legislate against?
My Lords, it was probably at one of the consultation meetings that my noble friend Lord Wallace of Saltaire held when we were discussing these matters that we heard about one substantial organisation that spent a considerable amount of money at the last election—and, indeed, registered the fact that it had done so. It was made clear that one of its activities was to focus on individual constituencies. I do not criticise that organisation for doing that, but if people are going to do such things, there should be proper limits so that there is proper transparency.
With regard to the point made by my noble friend Lord Cormack, whether I speak personally or on behalf of Ministers and officials, I think that a conference with the Electoral Commission to ensure clarity of guidance on the constituency limits could be very worth while. I say “guidance” because interpretation is, ultimately, a matter for the courts, not the commission. I am not even sure—I am making this up as I go along—whether it should be restricted to Ministers, or whether it might also include the Opposition and other parties, and representatives of campaigning groups. Some sort of round table discussion might be very helpful before the final guidance is produced by the Electoral Commission. On the basis of what I have said, I again invite the noble and right reverend Lord to withdraw his amendment.
Before I focus on what the Minister has said about the amendment, may I thank him, and the noble Lord, Lord Wallace of Saltaire, for responding on a whole range of issues to the concerns that have been expressed in this House? The Government really have moved a significant way; there is no doubt about that. But I think we are all aware that the Bill as it came to us in the first place was an appalling piece of legislation. A parliamentarian of very many years’ experience said to me that it was the worst piece of legislation that they had ever seen in a long parliamentary career. “Not quite”, I am hearing, so there must be some other cases as bad.
Again, the value of this House has been shown, as has the willingness of Ministers in this House to listen, so I genuinely thank them. I also thank noble Lords on all sides of the House who have supported some of the amendments tabled in my name and in the names of others. Not least, I thank members of the Electoral Commission, whose expertise I have had the privilege to share. The people there have worked extraordinarily hard. When I look at my e-mails in the morning I find that, night after night, they were sent off in the small hours of the morning; that gives you some indication of how hard they have worked.
Focusing on the amendment, I am disappointed that the Government have not been able to respond more positively. We made a genuine attempt to meet the point that they made about distributing leaflets, and the need to define very carefully what was or was not meant by a constituency in which there was an attempt to affect people’s voting intentions. Rallies have just been mentioned, but as the noble Baroness, Lady Mallalieu, said, if people want to get round restrictions on rallies they could easily do so by having a rally just outside a constituency where there is a narrow majority. There are all sorts of ways round, even as the Bill now stands.
My final point is about the Electoral Commission. I reiterate that it supported the amendment that has been moved today in my name and in the names of others. It said that there were still some difficulties with monitoring, but those would be nothing like the difficulties that it will have if the Bill goes through with the provisions on constituency limits unchanged. That will be extremely difficult, if not impossible, for the Electoral Commission. It is slightly surprising that the Government have not listened more carefully to what it has said. I think that the strength of feeling in the House on this issue is such that I ought to test the opinion of the House.
21 January 2014
Division on Amendment 11
Amendment 11 agreed.View Details
12: Clause 29, page 18, line 24, leave out “controlled” and insert “third party constituency”
Amendment 12 agreed.
Clause 30: Targeted expenditure limits
Amendments 13 to 17
13: Clause 30, page 21, line 1, leave out from “parties)” to “(as” in line 2 and insert—
“(a) in subsection (6), after “the purposes of this section” insert “, sections 94D to 94H”;(b) in subsections (8) and (10), after “sections 94A and 94B””
14: Clause 30, page 21, line 4, leave out “section 94A” and insert “section 94B”
15: Clause 30, page 21, line 39, leave out “3(2), 9(3) or (5), 10(3) or 11(3)” and insert “3, 9, 10 or 11”
16: Clause 30, page 22, leave out lines 7 and 8
17: Clause 30, page 22, line 40, at end insert—
“( ) It is a defence for a third party charged with an offence under subsection (2) or (3) to show—
(a) that any code of practice for the time being issued under paragraph 4 of Schedule 8A was complied with in determining whether any expenditure is controlled expenditure for the purposes of this Part, and(b) that the offence would not have been committed on the basis of the controlled expenditure as determined in accordance with the code.”
Amendments 13 to 17 agreed.
Clause 34: Returns as to controlled expenditure
18: Clause 34, page 33, leave out lines 13 to 16 and insert—
““(1) Subsection (1A) applies where—
(a) during a regulated period, any controlled expenditure is incurred by or on behalf of a recognised third party in a relevant part of the United Kingdom, and(b) the incurring of that expenditure would, if the third party had not been recognised, have been an offence under section 94(4) (whether because it was incurred in excess of a limit mentioned in section 94(5) or 94(5ZA)).”
Amendment 18 agreed.
Clause 35: Statements of accounts by recognised third parties
Amendments 19 and 20
19: Clause 35, page 33, line 25, at end insert—
“( ) In sections 90(3) and 94(8), (10) and (11), for “99” substitute “99A”.”
20: Clause 35, page 34, leave out line 22
Amendments 19 and 20 agreed.
Clause 39: Post-election review
21: Clause 39, page 39, line 41, at end insert—
“( ) The report under subsection (6) shall be laid before Parliament not more than 18 months after the date of the first relevant parliamentary general election.”
My Lords, I need not speak to this amendment for very long. We very much welcomed the Government’s commitment to have a review of the Act after the 2015 general election and that they will set up a person to monitor the election itself. That is all very much to be welcomed—not least of course because, even with the amendments that the Government have accepted, there is still a great deal of concern about this Bill.
We all know that there is a tendency for reviews to be spun out and spun out. That is why some of your Lordships were very keen to have a sunset clause. I believe that Amendment 21 will ensure that Parliament has a proper opportunity to see that review and respond to it well before the election following the 2015 election. We believe that 18 months is about the right time for a proper review to take place and for all the consultations that are necessary. I beg to move.
I want very briefly to support the amendment but also to remind your Lordships’ House that the Joint Committee on Human Rights expressed concerns about the implications of the Bill for freedom of association and freedom of expression. I would be very grateful if the Minister, in responding, could assure your Lordships’ House that the effects of the Bill on freedom of expression and association will be part of this review, the importance of which was underlined when discussed in Committee—although I do not think that this particular point was raised.
My Lords, I very much welcome the noble and right reverend Lord’s amendment. I believe that it is preferable to a sunset clause because it will start the process of analysis of what is happening under the Bill before the general election happens, rather than having to wait till a later stage. I hope that it gets an equally warm welcome from my noble and learned friend on the Front Bench.
My Lords, as the noble and right reverend Lord, Lord Harries, has indicated, the Government brought forward at Report an amendment so that there will be a review. The Government are committed to appointing a person to undertake the review within 12 months of this Bill receiving Royal Assent. That came out of one of the meetings that we had with one of the campaign groups, which suggested that it might be useful to have someone in place during the election. We thought that that was a very sensible suggestion and one for which we have provided.
I have discussed with the noble and right reverend Lord, Lord Harries, the merits and demerits of perhaps putting more in the Bill about what the review might or might not do, and we concluded that the minute we start adding things it begs the question as to what has been left out. There is no intention to limit the review, and I take the point made by the noble Baroness, Lady Lister. If people wish to make representations on that point in terms of the review, we would not anticipate anything stopping it—certainly there is nothing in the Bill that would stop it. I emphasise, however, that we believe that freedom of association and expression are vital. They are not impinged by the Bill; rather, what we have is transparency. We are not trying to stop people campaigning, but if they are campaigning in a way that seeks to influence an election it is not unreasonable that that should be transparent.
The next scheduled general election will be the opportunity on which the Bill will operate, and will provide a timely opportunity to review the effectiveness of those controls. On completion the person conducting the review must produce a written report which must be published and laid before Parliament by the Minister. The noble and right reverend Lord, Lord Harries of Pentregarth, tabled the amendment proposing that the report must be laid before Parliament within 18 months of the general election. It is right that Parliament should have the opportunity to consider the outcomes of the review well before the following 2020 election. It is appropriate that the review is done to an established timetable, and the Government are therefore pleased to accept the amendment.
I thank the noble and learned Lord for accepting the amendment. I do not know whether he can give any kind of indication, or feels that he would like to at this stage, about the groups or constituencies of people who would be consulted as part of the review. Perhaps he is not yet in a position to do that.
My Lords, I do not want to pre-empt the person who is appointed to undertake the review or in any way constrain what he or she will do. It might be an opportunity to reiterate something, not just in the context of the review, but on the point made in the previous debate by my noble friend Lord Cormack. I accepted the point that he made on the constituency issues: there might be merit in having groups—not just parties, but campaigning groups—involved in any guidance that emerges from the Electoral Commission. I readily expect that any review would involve submissions from the political parties that have been involved in the election, from charities, non-charitable campaigning groups, and people who have something relevant to contribute. As I said yesterday, we can always bet our lives that some issue will emerge that none of us has thought about, in spite of our very exhaustive discussions and debates. That is why it is important not to be prescriptive.
I thank the Government for their willingness to accept the amendment.
Amendment 21 agreed.
Clause 40: Duty to provide membership audit certificate
22: Clause 40, page 40, line 23, at end insert—
“( ) No union shall have to submit a membership audit certificate to the Certification Officer before August 2016.”
My Lords, at Report the Minister said that he was happy to offer reassurance that unions will have the time that they need to comply with this new legislation. He said that unions would,
“have at least 17 months to comply from the point at which the legislation takes effect, because the provisions will not apply retrospectively”,
“17 months is the combination of the 12-month reporting period plus the five months that is allowed after that period to submit the annual return”.—[Official Report 13/1/14; c. 92.]
So if Parliament granted Royal Assent next month, the earliest that the provisions could take effect is May 2016. However, this timetable is complicated by the fact that the Minister for Employment and Consumer Affairs gave an assurance in the other place that the Government will undertake a public consultation prior to commencement on the order that will set out who is eligible to be an assurer. In a recent letter, the noble Viscount also announced that the Government will use this consultation to inform the development of guidance for employers and employees, to support implementation, and he will be seeking further evidence to revise and republish the impact assessment before commencement. That was agreed when we were discussing the Bill earlier.
Our point at Report was that this section of the Bill will operate successfully only if the legislation gives the unions, and particularly the larger unions, adequate time to comply with the requirements in a way that is cost-effective, economical and practical from their point of view. Under questioning from my noble friend Lord Monks, the noble Viscount conceded that,
“this is not the most straightforward of timetables to set out and I would be very happy to meet the noble Lords, Lord Stevenson and Lord Monks, and any other noble Lords to clarify the timings”.—[Official Report 13/1/14; c.92.]
He also mentioned that there were ongoing discussions with the TUC and others.
That is the background to this amendment. My noble friend Lord Monks and I had a further meeting with the Minister when he confirmed that the department did want to adjust the timetable for the unions to comply. In a letter following the meeting, the noble Viscount wrote:
“Further to concerns raised about the time unions will require to prepare for the new requirements, and discussion both at Lords Report and separately between BIS and the TUC, I can also now confirm that the Government intends to work towards commencement in April 2015”.
It is indeed a complex picture of calendars. Our understanding is that this will mean that no union will have to submit a membership audit certificate to the certification officer before August 2016.
I hope the Minister will accept this simple amendment, which does, I think, reflect the Government’s intention. If not, I hope he will use the opportunity to spell out precisely the timetable for the unions so that we are all clear about what is required.
In closing, while we on this side of the House deplore this part of the Bill, which places costly and unnecessary burdens on the larger unions and poses a threat to the security of their data, the noble Viscount has, as usual, been unfailingly courteous to all of us who spoke in this debate, and he and the Bill team have been able to assist us on all our queries over these last few months. We thank him for that.
My Lords, I support the remarks of my noble friend Lord Stevenson. I hope the Minister will be able to confirm the points that are being raised and in particular the points that have already been covered to a high degree in a letter to my noble friend Lord Stevenson.
We still do not know why we have Part 3. It is onerous, it is expensive and it is uncalled for. There is no evidence of any problem that it addresses. There is no evidence that any questions of public interest about union membership cannot be addressed by perfectly adequate existing remedies, particularly the existence of independent scrutineers in ballots. There is no information about who wants this Bill, who has been pressing for it or what lobby is behind it. Transparency, which is in the title, certainly does not extend to the reasons why this part of the Bill exists. We simply do not know. We do not know who thinks this is deserving of public interest. The Government have still to explain that. I hope that one day—perhaps not today—we shall get an explanation of what this was really for and what it was all about.
This morning I received a petition organised by the TUC and others. It is signed anonymously by nearly 12,000 people. They do not give their names, they give their occupation and location details. The trade unions have got the information about their names. The individuals trusted the unions with this information. They do not trust these public officials who the Bill proposes to turn loose on union membership records. This is not an academic issue. We currently have over 2,000 cases in the construction industry of allegations of blacklisting—of people who have been out of work, in some cases for years, because of misuse of confidential information, allegedly by some of the most prestigious names in the construction industry.
This part of the Bill has no practical value. I regret it. I hope the Minister can confirm now that the problems, at least in terms of its introduction, will be eased. We do not respect Part 3 because we do not know why we have got it. We do respect the Minister and the courteous way in which he has dealt with us. I hope that next time he comes to the House with something about trade unions and employment, he has a real issue to address rather than the fiction which is in this part of the Bill.
My Lords, first, I take this opportunity to thank all noble Lords who have provided thoughtful and constructive contributions to debate throughout the passage of Part 3 of the Bill. I personally understand how sensitive many of these issues—some of which the noble Lord, Lord Monks, has iterated just now—are to some noble Lords. In particular, but by no means exclusively, I thank the noble Lord, Lord Stevenson of Balmacara, for his kind words earlier; the noble Lords, Lord Monks, Lord Whitty, Lord Beecham and Lord Lea of Crondall; and the noble Baronesses, Lady Donaghy, Lady Turner and Lady Drake. I also thank my noble friends Lord Tyler and Lord Balfe and, in particular, my noble friend Lord Cormack, whose brief contribution I failed to acknowledge on Report. Finally, I give my sincere thanks to the Bill team for all their hard work.
I know that the intention behind the amendment of the noble Lord, Lord Stevenson, is to probe the Government’s plans for commencement of Part 3 and to ensure that trade unions are given sufficient time to be able to comply with changes requiring them to report annually on their membership registers. On Report, I offered to meet the noble Lords, Lord Stevenson and Lord Monks, to discuss this matter in more detail. Indeed, as they alluded to, that meeting took place two days following Report, on 15 January. Noble Lords may like to be reminded that, on Report, I suggested that the earliest the provisions would be commenced was October 2014. I am pleased that I was able to say at the meeting last week, and can confirm to the House today, that commencement will not occur before April 2015. This follows careful consideration of what has been said during the parliamentary stages and concerns raised during the BIS consultation, as well as discussions between the Secretary of State for Business, Innovation and Skills and Frances O’Grady, the general secretary of the TUC.
Commencement in April 2015 would mean that the very earliest any trade union would be required to submit a membership audit certificate to the certification officer would be August 2016. In practice, it is likely to be later than that for many unions, as many have a calendar reporting year and would not be required to submit their first certificate until June 2017. Noble Lords will recall that this is because unions will submit a membership audit certificate for the first full reporting year after the changes become law. The 17-month period that I referred to on Report is a combination of the union’s 12-month reporting period and the five months that is allowed after that period to submit the annual return.
I hope that this thoroughly reassures noble Lords as, in the meeting that I had with the noble Lords, Lord Stevenson and Lord Monks, I was led to believe that the reassurances that I personally gave were accepted. However, we will continue to work closely with trade unions as we head towards commencement, in particular by discussing with them the guidance that will be needed as well as consulting on the draft order that identifies eligibility to be an assurer. I believe that an April 2015 commencement date will give trade unions the time that they need to prepare and to amend their rules, and understand that the general secretary of the TUC agreed that this was achievable. I have written to the noble Lords, Lord Stevenson and Lord Monks, and placed copies in the Libraries of both Houses confirming this. The Secretary of State has written in similar terms to Frances O’Grady. I hope therefore that the noble Lord is reassured and that he will withdraw his amendment.
My Lords, I thank the Minister for his very full response to our amendment. I am obviously sad that he will not accept the amendment as laid, as it seems to exactly mirror what he has announced, but maybe these are days when the Government do not want to see too many concessions being scored, so I understand the problems. Assuming that what he has said is exactly what we think it is, and given that we have letters and documentation to support that and that letters are also being written separately to the TUC confirming it, I beg leave to withdraw the amendment.
Amendment 22 withdrawn.
Clause 46: Transitional provision
23: Clause 46, page 52, leave out lines 24 to 31
Amendment 23 agreed.
24: After Clause 46, insert the following new Clause—
“Power to make consequential provision
(1) The Minister may by order made by statutory instrument make provision consequential on any provision of Part 2 or section .
(2) An order under this section—
(a) may include provision amending or modifying any provision of or made under PPERA 2000 (including any provision inserted by this Act),(b) may include incidental, supplementary, transitional, transitory or saving provision, and(c) may make different provision for different purposes or cases or for different areas.(3) A statutory instrument containing an order under this section that amends or modifies any provision of PPERA 2000 may not be made unless a draft of the instrument containing it has been laid before, and approved by a resolution of, each House of Parliament.
(4) Any other statutory instrument containing an order under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(5) No order may be made under this section after the date of the poll for the first relevant parliamentary general election.
(6) In this section—
“the first relevant parliamentary general election” has the same meaning as in section ;
“the Minister” means the Secretary of State or the Lord President of the Council;
“PPERA 2000” means the Political Parties, Elections and Referendums Act 2000.”
My Lords, Amendment 24 introduces a power to make any provision consequential on Part 2 by order. At the outset, I wish to reassure noble Lords that the power is narrow in scope and will only allow the Government to make consequential amendments—it would not allow the Government to amend the fundamental principles and provisions included within Part 2. Any changes to the primary legislation would be subject to the affirmative resolution process.
The power is also time-limited, so that it could only be used until the date of the next general election. I emphasise that I hope this power will not be needed, but I consider it prudent to insert it into the Bill. Indeed, Amendment 7, which has already been agreed to by your Lordships today, was a starred amendment on the Marshalled List because it came up even since the Government tabled our amendments on Friday. We believe that we have introduced a number of amendments of significant benefit to campaigners and we would not wish to risk them becoming ineffective for any technical reason.
The Electoral Commission says it is important that Ministers should consult it, at least informally, before using the power. We agree that it is important to consult the Electoral Commission. I assure the House that we will consult it before making an order under this power, and the commission has agreed with that approach. Should the commission make a recommendation to use this power, we will consider it extremely carefully, but the circumstances in which we anticipate the need for this power would be to deal with any minor or technical drafting changes that are identified to ensure that the legislation is effective. They may be identified by the Electoral Commission or by officials or lawyers in government, and it would be counterproductive to suggest that only a commission recommendation could justify the use of this consequential provision. I beg to move.
My Lords, I remind the House that I am a member of the Electoral Commission. This new clause gives the Government the power to deal with any consequences of the Bill that turn out to be radically different from those intended. Such consequences may indeed include the workload and the efficacy of the Electoral Commission, which has been greatly commented on today and in previous debates. The noble Baroness, Lady Mallalieu, talked about headaches and nightmares for the Electoral Commission. I hope it is not quite as bad as that but I appreciate her point. My noble friend Lord Cormack called, in the right spirit, for sensible and simple advice from the Electoral Commission. Given the hideous complexity of the Bill, that is more than ever necessary in this case.
I wish to draw the Minister’s attention to a point about the consequences for the workload and efficacy of the Electoral Commission. Clause 38 alters the legal language in which the remit of the Electoral Commission is incorporated. The Government have done this without any prior consultation with the Electoral Commission. This non-consultation, while fairly common in this Bill, is unusual generally in legislation and is doubly so when one considers that the Electoral Commission is not a government body but one that reports to Parliament through the Speaker of the House of Commons. It is deliberately independent of government yet the Government have altered the wording of its remit without any prior consultation with the Electoral Commission or with Parliament.
The Lords Constitution Committee noted that the regulatory duties of the Electoral Commission had been extended and advised that:
“The House may wish to consider the implications”
of that. The Political and Constitutional Reform Committee in the other place actually said that the clause should be withdrawn, pending consultation with the Electoral Commission. Of course, that has not happened.
It is fair to say that the Government’s motives in doing this were well intended but, as has often been said, the road to hell is paved with good intentions. The Government’s contention is that the change in emphasis of the Electoral Commission’s remit provides reassurance to non-party campaigners and the Electoral Commission itself that its role and responsibilities are important and necessary and that it has the appropriate statutory backing.
That is commendable but, on closer scrutiny of the Bill, it is not helpful. The main thing Clause 38 does is to change “general function” to “duties” and change taking “appropriate steps” to taking “all reasonable steps”. The problem with this is that it reduces the flexibility of the Electoral Commission to deal with spurious or politically motivated allegations that are clearly unfounded. The lawyers in the House will appreciate the difference between “appropriate” and “all reasonable” steps. The problem is compounded by the fact that, as a result of the Bill, many more campaigners are likely to be regulated, as has been acknowledged by the Government and other speakers. Any allegations may peak at the climax of the election and thus lead to confusion and loss of confidence in the new regime.
As has been acknowledged, many provisions are untested. On the one hand, the Government are giving the Electoral Commission more to do; on the other, they are making it harder to deal with simple and unsubstantiated cases quickly and cost-effectively. I am sorry to raise this point so late in the deliberations on this Bill, but I think that the Electoral Commission has shown admirable self-restraint in wanting the House to concentrate on the content of the Bill rather than on the problems that it may have in enforcing it and regulating subsequently. It is important to raise that point before the Bill is finalised here. I would therefore be grateful if the Minister would ensure that the Government talked to the Electoral Commission about this problem, which may occur over the next few months, and if necessary take corrective action by means of the powers which they are taking under this new clause.
Finally, perhaps I may say as a new Member of your Lordships’ House that the debates on this Bill have brilliantly illustrated this House’s role as a scrutineer of legislation. The Bill has been much improved as a result of the House’s efforts, and pride of place in that respect must go to the noble and right reverend Lord, Lord Harries, and his supporters on the Commission on Civil Society. They have, in common parlance, played a blinder.
Occasionally, their supporters outside the House have gone over the top. A certain co-ordinated “holier than thou” attitude has sometimes been apparent. I have lost count of the number of campaigners who have told me in identical words, “This is a deeply unpopular Bill the need for which has yet to be substantiated”. Letter after letter contained that particular clause; they could have been a little more differentiated in the way in which they approached this issue. Those campaigners have also attempted to portray themselves as defenders of democracy. Actually, in my view, it is the Government who are in this case the defender of democracy. As my noble friends Lady Williams and Lord Tyler have said in a Guardian article, this Bill has a noble intent, which is to defend the democratic process from distortion by excessive interference by outside interest groups. Quite rightly, the Government want to make the electoral process as level a playing field as possible. The noble Lord, Lord Martin of Springburn, whose great expertise in this area we acknowledge, made that point forcefully in the previous debate. The Government have also shown a creditable willingness to be flexible, having originally consulted too little and drawn the Bill too tightly. I commend my noble friends for that.
The end result, I believe—and I believe that it is the view also of the Electoral Commission—is a Bill which is workable. If it proves that the unintended consequences can be dealt with by a review process, that should happen and I commend my noble friends on making provision for it. I therefore commend them on the way in which they have handled the Bill in its totality.
My Lords, is there a connection between the substantial powers inherent in the new clause proposed in government Amendment 24 and the fact that the Bill is to be returned to the Commons with there being inadequate time for substantial consideration of potential Commons amendments?
My Lords, concerns have been expressed about this government amendment allowing a Minister to have these powers on an Act which will go to the very heart of democracy—they are rightly called Henry VIII powers, I believe. The Government have given assurances that these powers are strictly limited and that they will consult the Electoral Commission. In view of the lessons learnt as a result of this Bill going through the two Houses, they may think that it is worth consulting more widely if they feel the need to bring orders before this House. It should be put on record that concerns have been expressed, but we are grateful, from what the Minister said, that the powers are strictly limited.
My Lords, very briefly, we are much indebted to my noble friend Lord Horam for what he said. He has clearly demonstrated admirable restraint during this Bill, knowing—as he has now made clear—that the Electoral Commission was far from happy and that he, as a member of that commission, shared at least some of that unhappiness.
This is an object lesson in how not to do things. I warmly commend my noble friend and my noble and learned friend—the brace of Lord Wallaces—for all they have done to make a very bad Bill palatable. They have exercised infinite patience, great care and unfailing courtesy, and we should all be extremely grateful for that. But that does not absolve the Government from blame for bringing in a Bill of this complexity in this way. I have said before, and will say again for the final time on this Bill, that if ever a Bill cried out for pre-legislative scrutiny it was this one. I sincerely hope that that lesson has been learned and that in future complex Bills of this nature, touching as they do on constitutional and parliamentary issues, will have the benefit of pre-legislative scrutiny. We have had a series of patch, make-do and mend amendments, many of them introduced by the noble and learned Lord, Lord Wallace, himself. I repeat: we are grateful for that, but that is not a substitute for a carefully drawn-up Bill that really meets a need.
My noble friend Lord Horam touched on the complexity of the Bill. Legislation should be readily understandable by those to whom it applies. When one brings in a whole range of new provisions that many of the bodies with which the noble and right reverend Lord, Lord Harries, has been involved never anticipated, they really should have the benefit of consultation. We now have placed before us what is a bit of a catch-all, Henry VIII clause. In principle I do not like Henry VIII clauses, but I concede that in this particular Bill something like it is probably necessary.
I am grateful to my noble and learned friend for responding so positively to the suggestion I made earlier about a round-table conference. That is good and he rightly said in that context that he wanted to go beyond the Electoral Commission. It is also very necessary that there are detailed discussions with the Electoral Commission directly. I suggest those involve leaders of the Opposition, too, because this Bill is likely to last quite a long time. As it is worked through, we need to make sure that all—or most of—the things we have said we feared do not come to pass.
My final words on the Bill in this House are that this has been an interesting exercise. I do not believe that we have produced something truly worthy of the important subject, but I agree with my noble friend Lord Horam that we have been able to demonstrate the value of this House in making a very bad Bill palatable in the way we have.
My Lords, I dip the tiniest of toes into the waters of this Bill, not as chair of the Delegated Powers and Regulatory Reform Committee but as somebody who knows a tiny bit about Henry VIII clauses, just to reassure noble Lords that this kind of power is well precedented and here it is very narrowly drawn. The House need not worry that the Government are in some way exceeding their powers or doing something they should not on this occasion. That is all I wish to say on this, but it has been very instructive to sit here and listen to the last few hours of debate on the Bill.
My Lords, my noble friend Lady Thomas of Winchester said, with typical modesty, that she had only a tiny knowledge, but she has more knowledge than most of us present in the House put together on the subject of Henry VIII clauses. I entirely endorse what she said. In fact, I do not think this is a Henry VIII clause because of its very limited impact. I think it is more, in terms of longevity, like an Edward VI clause, as Henry VIII ruled for quite a long time whereas Edward VI ruled for a relatively short time. It is more likely that that is the more appropriate historical analogy. As my noble friend just said, the power is only about consequential provisions; it includes the affirmative procedure; it is effectively sun-setted, because it is limited to the general election; and it is well precedented.
My noble friend Lord Cormack said just now that these were his final words on the Bill. He presumably assumes that the other place tomorrow will accept all our amendments or produce amendments in lieu that are so acceptable all over your Lordships’ House that we do not return to the Bill again. Let me be as optimistic as he is, just for a minute, and assume that that is the case. I therefore want to place on record my gratitude and congratulations to noble friends all around the House who have done some hugely important work on what I think is now a much better Bill and a necessary Bill. I am not sure that everybody in the House agrees with that, but I certainly said at Second Reading that I thought it was necessary and it certainly has improved.
I really think that we owe a very considerable debt to the Wallace duet. Ministers in the other place should perhaps take lessons from the way in which they have responded to very important proposed improvements to this Bill, which leaves this place in a much better state than when it arrived and that is very much to their credit. I am grateful to them for the way in which they consulted many Members of your Lordships’ House.
I think the noble and right reverend Lord, Lord Harries, would agree that the engagement of a large number of other people outwith the Westminster bubble—outside Parliament—in this process was actually a plus for your Lordships’ House. We must recognise that they were stirred by concerns and anxieties that were very real. I wish it would happen on many other occasions with many other legislative proposals. We may need to build on that in future. Perhaps it may be that those organisations will take more notice in future of the way in which your Lordships’ House scrutinises legislation, and that must be to the good reputation of Parliament as a whole.
I am glad that I have had the opportunity to contribute at all stages of this Bill and I welcome the way it is now leaving this House. That is due not only to the assiduous way in which many Members of the House contributed to these debates but to the engagement of a large number of others outside the House. That is a good result.
My Lords, we have some concerns about this power, but if we are given the reassurance that the Electoral Commission will be consulted and involved, that will reduce those concerns. I think the noble Baroness, Lady Thomas, has also added her imprimatur to that. I am sure that the Government will listen to the sage advice that they get from the Electoral Commission, should this be necessary.
I am much more optimistic than the noble Lord, Lord Tyler, so I think this will be our last outing on this Bill. I am sure that the good offices of the noble Lords opposite will be able to ensure that all is accepted down the other end tomorrow and they will not send it back as ping-pong. That is my assumption. Having already learnt, from the noble Lord, Lord Horam, on Report, the words “harrying” and being “harried”—referring to the noble and right reverend Lord—I am not sure what being “wallaced” is, but I think it must mean being heard with sympathetic ears. In this case, of course, it was four sympathetic ears and not just two.
We have complained about the timing of this and the shortage of time. Our complaints are of nothing compared to what it must mean to the Bill team. We are about to finish with this, but they are now going to have to scuttle down and do the whole thing again. Therefore, not only for their efforts but for the time constraints we put on them, we should give them a big thank you.
I thank my colleagues, some of whom are here. My noble and learned friend Lord Morris and my noble friends Lady Lister, Lady Pitkeathley and Lady Mallalieu are just some of those who have contributed. I also make a small thank you to a newish member of our own team, Byron Orme. This was the first Bill which he saw through this House so perhaps we can also thank everyone who, by their umpteen amendments, have helped him learn how to do that. He has been superb for us.
I thank the third sector, which I do not think went over the top. I saw an enormous amount of practicality—certainly when we from this side of the House said, “Look, that amendment just isn’t on”, they would say, “All right”, and come back with some different words, which showed practicality and an involvement in the political process at its best. I also put my thanks to them for the briefing which they gave to us all, whether we agreed with it or not.
My Lords, it is almost inevitable that concerns are expressed when an amendment of this nature comes forward. That is a quite proper function of the House, and the Government should be made to justify putting forward such an amendment.
First, I say to the noble Lord, Lord Campbell-Savours, that the proposed clause has nothing whatever to do with the fact that there will be Commons consideration of Lords amendments tomorrow. The concern is that because the agreement on the provisions relating to coalitions came so late in the day, we want to be certain that we can deliver the policy which we reassured the campaign groups that we would deliver, and that if things emerge at a later stage, not necessarily in the next 24 hours, there will be an ability to do so. I am reassured by the comments of my noble friend Lady Thomas that, as clauses of this nature go, this one is limited and consequential. Indeed, it has a sunset clause and I also welcome the fact that this was noted by my noble friend Lord Tyler.
My noble friend Lord Horam raised the Electoral Commission’s remit, which is being amended by Clause 38. The Government believe it is appropriate to emphasise the importance of the commission’s regulatory role and to remove any potential understanding of its responsibilities. Clause 38 requires the commission to,
“take all reasonable steps to secure”,
campaigners’ compliance with campaigning rules. The Bill further provides for transparency of the commission’s work by introducing a new requirement for it to set out in its annual report what steps it has taken to secure compliance with the relevant provisions of PPERA. By requiring an account of its activities, the Government are seeking to make clear that the commission’s work is vital and that its regulatory approach is being empowered by the Bill.
The point was made by my noble friend Lord Horam, and I have heard it mooted in other quarters, too, that every small, malicious or vexatious complaint or query would have to be investigated. We do not agree, as the provision in Clause 38 imposing a duty on the Commission to investigate complaints does not mean that the commission would have to investigate complaints that it knows to be unfounded, malicious or vexatious. However, I believe that any change to the Electoral Commission’s remit could and should form part of the review of Part VI of PPERA, to which your Lordships have already agreed and which was the subject of further discussion earlier today.
In relation to the Electoral Commission, perhaps I might also reassure the noble Baroness, Lady Hayter, of what I said in moving this amendment. We agree that it is important to consult the Electoral Commission before any use of the powers in Amendment 24. I assure the House that that is indeed what we would do before making an order under this power. My noble friend Lord Horam suggested that the power in this amendment might be used with regard to any changes in the Electoral Commission’s remit. In disappointing him, perhaps I might reassure the rest of your Lordships that we think it unlikely that any changes to the commission’s remit could be considered as consequential provisions under this power, and therefore would not be within its scope. However, it would be appropriate if the review we discussed were to look at the remit of the Electoral Commission.
Finally, I take this opportunity on this last amendment to say thanks to many people but particularly to your Lordships’ House for the scrutiny which the Bill has had here. I can say without doubt that the Bill returns to the House of Commons much improved, and in doing so we have shown evidence of the value and merit of the revising role that this House undertakes, which it does with great seriousness.
I acknowledge with thanks the kind words that have been said about my noble friend Lord Wallace of Saltaire and me. In turn, I thank the noble and right reverend Lord, Lord Harries of Pentregarth, and the noble Baroness, Lady Mallalieu, for their excellent work on the Commission on Civil Society and Democratic Engagement. They have made a valuable contribution to the work that we have done in this House. Along with them and other members of the commission, I thank the many organisations which have engaged with us and them: third-parties and campaigning groups, charities and non-charities, all of which have made an important contribution. We have not necessarily always agreed, but they have contributed to making the Bill better.
I also thank those who have contributed in other ways through amendments and speeches: the noble and learned Lords, Lord Morris of Aberavon and Lord Hardie, my noble friends Lord Hodgson, Lord Horam, Lord Tyler and Lord Cormack and the noble Baroness, Lady Hayter, as well as the noble Baroness, Lady Royall, and the noble Lord, Lord Stevenson, who have at times contributed to our debates. Although there are many people in your Lordships’ House who have had experience as Members of Parliament, the noble Lord, Lord Martin of Springburn, brought a welcome reminder in his contributions that these are practical provisions which affect people who actually fight elections.
I also thank my noble friends on the ministerial Bench, Lord Wallace, Lord Gardiner of Kimball and Lord Younger of Leckie. I also acknowledge the tribute paid by the noble Baroness, Lady Hayter, to the officials—some in the Box and some not. On their behalf—because, obviously, they cannot speak—I express appreciation of that and add mine. They have worked with considerable equanimity and good humour. At least one of them attended almost every meeting which we have had with groups and they have assisted my colleagues on the ministerial team greatly. I certainly very much value the work that they have done and the very long hours, including over Christmas and New Year—one sometimes noticed the times and dates when e-mails were sent. I express appreciation for that.
Having said that, I very much hope that your Lordships will agree to the amendment.
My Lords, before the noble and learned Lord sits down, I gave a range of thanks before and I shall not repeat them, but there is one group of people who have not been mentioned and thanked. For a person who is not a very experienced parliamentarian, such as me, those people been particularly helpful. They are the staff of the Public Bill Office. They have been very helpful in guiding me on what might be allowable and possible. I express my thanks on behalf of others to them.
Amendment 24 agreed.
Schedule 3: Controlled expenditure: qualifying expenses
25: Schedule 3, page 59, line 1, after first “of” insert “, or in consequence of,”
Amendment 25 agreed.
Amendment 26 not moved.
Bill passed and returned to the Commons with amendments.