Committee (2nd Day) (Continued)
Clause 22: Prohibition on entities being registered political parties and recognised third parties at same time
31B: Clause 22, page 32, line 4, at end insert—
“(7B) Subsection (7A) does not apply to a party registered in the Great Britain register in pursuance of a declaration falling within subsection (2)(d) (a minor party).””Member’s explanatory statement
This amendment is intended to probe the application of this Clause to minor parties.
My Lords, I shall speak to Amendments 31B, 32 and 32A in this group in the names of my noble friends Lady Hayman of Ullock and Lord Collins of Highbury. Amendments 31B and 32 relate to Clause 22, which prohibits an entity registering as both a political party and a third party, which would allow them to access multiple spending limits. I cannot see any reason to oppose this, which would remove a loophole from the level playing field—those words which have been so often mentioned—and maintain the integrity of the existing system.
In the debate on this clause in the other House, a Minister explained that this change was necessary after an entity registered as both during the 2019 general election, therefore abusing the system. Can the Minister confirm which party this was?
Specifically, Amendment 31B intends to probe the application of this clause to minor parties. While we can assume that major political parties, which tend to have governance units, will be aware of these new changes and will be very unlikely to register in both classifications, we should consider whether the same can be said for minor parties. This brings me to Amendment 32, which is intended to probe how the Government will inform third parties of the impact of this section. On the first day in Committee my noble friend Lady Hayman of Ullock touched on the importance of consultation, and I ask the Minister what consultation there has been on informing third parties of the impact of this section. In particular, I ask about impact assessments on this section. Consultation is particularly important for this Bill. Many of the groups which fall within the definition of third parties can be considered minor organisations which also may not have the necessary structures.
Amendment 32A touches on a similar subject of informing involved parties but relates instead to Clause 23. This clause deals with transitional provision for groups which appear on both registers and would permit them to spend only in one capacity.
I understand that the Minister has been very kind and has had discussions on these matters with my noble friends, but I really hope he can confirm what plans the Government have to involve, engage and inform the relevant parties, and we would really welcome further discussion on this matter. I beg to move.
My Lords, I will follow up on the remarks of the noble Lord, Lord Khan. It is quite puzzling to see how extensive a problem it could be to have entities registered as both political parties and third parties. Indeed, when the noble Lord, Lord Hodgson of Astley Abbotts, did his review of the legislation governing third-party campaigning, he said specifically that he did not see this as a significant problem.
I would like to ask the Minister when he comes to reply whether that situation has changed because of the increase in digital campaigning and therefore ask how this would be monitored and enforced. Whose responsibility would it be? Presumably it would be the Electoral Commission’s, but would it require a new set of digital enforcement measures that it has not had previously?
The other issue that I would like to probe is what engagement there will be with entities that might fall into this category. It is not at all clear to me from the Bill where this proposal has come from and how it is envisaged it will work. I think there is considerable concern among non-party campaigners out there which are small entities that they might fall foul of this when not doing anything intentionally wrong. It would be very helpful if the Minister could tell us the extent of the problem that has led to this having to be put into primary legislation.
I thank noble Lords who have contributed to this short debate. Our view is that no group or individual should have access to multiple spending limits at an election. Spending limits exist to ensure that there is a level playing field, a concept that I think we have agreed on already in this Committee, and any opportunities to unfairly expand spending limits should be removed.
The noble Lord opposite asked about specific examples. What is propelling the legislation is principle but, obviously, there is the case from the 2019 UK parliamentary general election when a group claimed that it could do that—that is, expand spending limits by registering both as a political party and as a third-party campaigner. The organisation that we have in mind is Advance Together, which was used to sidestep election spending rules. It registered both as a political party and as a third-party campaigner, effectively to double its spending limits. I do not want to go too deeply into the motivations there, but that organisation ran negative attack campaigns against incumbent MPs who were supporters of Brexit in five target constituencies. It was mainly staffed by former Liberal Democrats seeking to stop Brexit. Indeed, they admitted on Twitter:
“Our candidates are there to be tactical. Not to win.”
Whatever the politics, this was a clear abuse of third-party local spending limits, which are limited to £700 per constituency under the RPA. That dual registration leap-frogged the £700 third-party spending limit in the constituency, allowing the third party to spend the higher candidate limit locally, and obviously to benefit from the national third-party spending thresholds. It is hard to believe that many groups would wish to circumvent the rules in this way, but I think noble Lords would agree that it is probably best to be prudent in this regard.
Just out of interest, with the application for registration as a political party, was there an awareness of the other application as a third party? Did that not get questioned, and could not the existing rules have addressed the issue? Were the two registrations just allowed to take place?
I would have to be advised on that matter. I understand where the noble Lord is coming from, because I agree that it is hard to believe that a group would want to proceed in that way. I shall share with the Committee what information is available on this.
We on these Benches are totally unaware of this organisation, but I am glad to hear that it was staffed by Liberal Democrats. I am sure the Minister would expect it to be a dastardly Liberal Democrat plot, but I am completely unaware of it. Could his private office provide us with some information and background—there must be some—to inform us of the case, how serious it was and how it was dealt with? It somehow did not hit the Sunday Times on my Sunday morning, just before I got to my allotment.
The noble Lord will be taken to task for not reading the Observer if he keeps coming out with his Sunday morning reading. I was not there and the Government were not there but, looking at the empirical record, we believe that this was a prima facie case. I can report only what information I have: that it was staffed by former Liberal Democrats and operated in five target Liberal Democrat constituencies, but I accept the noble Lord’s assurance that he knew nothing about it.
The clause that we have put in the Bill will prohibit recognised third-party campaigners registering as political parties and gaining access to a spending limit for each registration. The list of individuals and entities permitted to be on the third-party campaigner register will also be amended to remove political parties.
The noble Lord, Lord Collins of Highbury, raised an important issue, asking that the Secretary of State be required to notify any person who, immediately before the commencement date, is both a registered party and a recognised third party—indeed, that is implicit in the remarks of the noble Lord, Lord Wallace. We have to hope that that can be recognised and dealt with in advance, rather than afterwards. The Government will work closely with the Electoral Commission on the commencement of these clauses as we work towards bringing in the Bill, and the commission will be in a position to notify affected groups if a political party or a third-party campaigner attempts to register as the other between now and commencement.
I was also asked about what we are doing to communicate the change to third parties. As discussed earlier, the Electoral Commission is responsible for producing guidance for campaigners on complying with electoral law. Again, the Government will be working closely with the commission across the Bill on this aspect of implementation and guidance and will continue to do so following the approval of the Bill. From our discussions so far and given the general interest across parties, across the House and outside, it is clearly important that, whatever happens to the Bill’s progress into law, the Government continue to keep your Lordships informed in the implementation stage as we go forward. Certainly, we will take away that spirit of the debates. That certainly needs to be shared and there needs to be scrutiny of the progress towards implementation.
The noble Lord, Lord Collins, also tabled an amendment seeking to probe the application of Clause 22 to minor parties. I am grateful to him for raising the topic—the noble Baroness, Lady Barker, also raised that point. We are keen to close any loophole and prevent registered parties or campaigners taking advantage of multiple spending limits. Registered minor parties are indeed registered parties, therefore it is right in principle that this clause applies to them. However, again, I am happy to consider this point further and will ask my officials to further test this particular point raised in the debate. With that in mind I urge that these amendments be withdrawn.
I thank the Minister for his detailed response. There were some very good contributions from noble Lords; in particular I welcome the point the noble Baroness, Lady Barker, made on monitoring, enforcing and digital campaigning with regard to this clause. The noble Lord, Lord Collins, rightly probed the whole aspect of communication with the Secretary of State in particular and being a third party as well as a political party.
When I asked the Minister a question, I did not want to cause a debate in the Chamber—it was done with good intentions. We look forward to working further with the Minister and I hope that on Sunday, when he is at his allotment, after he has read the Sunday Times, he can reflect on how he will further involve, engage and inform relevant parties. For the moment, I beg leave to withdraw.
Amendment 31B withdrawn.
Amendment 32 not moved.
Clause 22 agreed.
Clause 23: Section 22: transitional provision
Amendment 32A not moved.
Clause 23 agreed.
Clause 24: Restriction on which third parties may incur controlled expenditure
33: Clause 24, page 33, line 26, after “during a” insert “reserved”
Member’s explanatory statement
The amendments in Lord True’s name relating to Clause 24 restrict the provision made by that clause, so that it applies only in relation to periods involving parliamentary general elections or general elections to the Northern Ireland Assembly.
Amendment 33 agreed.
33A: Clause 24, page 33, line 26, at end insert—
“(za) could not reasonably be expected to have known they were campaigning within a regulated period,”Member’s explanatory statement
This expands the conditions under which a third party may incur controlled expenditure during a regulated period.
My Lords, in moving Amendment 33A, I will speak also to Amendment 39. I am very grateful to the noble Lord, Lord Blunkett, for putting his name to the first of those. He has emailed me to say that he is very sorry that he cannot be here and has asked me to apologise to the Committee on his behalf.
This is the first amendment that I have moved. I beg the indulgence of the Committee for a moment so that I can briefly explain the background to all the amendments I propose to this section of the Bill. This preamble will serve as a preamble to all the other amendments we will come to on Thursday—Amendments 39A, 45B, 48A and 54A—and I will therefore foreshorten my speeches on that occasion.
As I explained at Second Reading, I was appointed by the Government to undertake the official review of Part 2 of the inelegantly named Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014. Section 39 of that Act required the Government to appoint a person to undertake a review of Part 2 of that Act in the light of the 2015 general election. My report, in the preparation of which I was greatly helped by a tremendous team from the Cabinet Office, was published in March 2016 and entitled Getting the Balance Right.
What is the balance we should seek to achieve? If we all agree that a vibrant civil society is a really important part of a vibrant democracy, in which everyone feels that they have a chance to have their voices heard collectively as well as individually, we need to ensure, on the one hand, that civil society organisations can speak truth to power—power does not always like having truth spoken to it—and on the other that the activities of those organisations are subjected to a proper degree of transparency. That is the balance that my report sought to achieve.
Finally, I make it clear that all my amendments are probing at this stage. I am looking forward to hearing how the Government react to the shape of the amendments I am putting forward before we get to the next stage.
So with that, to horse. These amendments are concerned with what is known as the regulated period. Members of the Committee will be familiar with the regulated period, but for those who are less familiar I will give a very quick summary. The regulated period is the period during which a third party has to keep a total of all qualifying expenses, which are those that can reasonably be regarded as intended to promote a person or procure electoral success at any relevant election. We shall come back to the intent test later, but the Committee can already see that this will not be as simple as it might be.
Accurate data is very important for third-party campaigners, because the total will determine what category of regulatory regime they come under. Nought to £9,999 means there will be no regulation at all. From £10,000 to £19,999 is the new lower tier; and above £20,000 is the tier that exists, which will continue under the Bill and which requires full registration.
The regulated period was set in the 2014 Act at 12 months. The Bill does not plan to change it. There is a strong argument that this is too long a period. It does not reflect the realities of political life outside the Westminster/Whitehall bubble and it imposes a considerable administrative burden on third-party campaigners, especially smaller ones. As such, it might serve to inhibit third-party campaigning unnecessarily.
Let me explain my thinking a little further. It is important to be clear about what the Government’s legislation seeks to achieve and, in consequence, what it seeks to capture. The strategic, overarching approach must be to increase transparency and reduce the possibility of undue influence.
Most third parties tend to have a primary purpose not connected with campaigning at elections. Only a few third parties have been set up solely to campaign, and we were dealing with some of the by-products of that in the amendments that we have just been discussing. I argue that you can divide the activities of a third party into three broadly discrete areas. The first I describe as advocacy, which can be seen as business as usual. This is the work that a charity or voluntary group does year in, year out: the regular pattern of events and activities, such as setting up branches, recruiting people and trying to get some local or national press. In many cases, it is the bread-and-butter purpose of the particular organisation’s existence.
The second part is what I call political campaigning, which comes more directly in the run-up to a general election. It particularly seeks to attempt to influence the wider debate and political process, to shape the form of the debate and hopefully—this is the gold standard—get one of the major political parties to put some aspect of the third-party campaigner’s objectives into the party manifesto. Of course, the targets of this are primarily Ministers, MPs and Members of your Lordships’ House. I argue that people in that particular category should be well able to look after themselves and aim off if they are being unduly pressurised.
The third area is electoral campaigning, which is activity intended to influence people’s voting choices in the run-up to and during an election, at a time when the general public, defined as the people in the saloon bar of the Dog and Duck or on the Clapham omnibus, are switched on and are thinking about and interested in the political process. So the three key elements can be identified in any campaigning as: when the campaigning is taking place, who the audience is and whether the intent is to influence that audience.
In my view, the regulation of third-party campaigners should be only in respect of electoral campaigning—that is, activity intended to influence people’s voting choices in the run-up to or during an election campaign. It should not be seeking to capture or deal with business as usual advocacy or political campaigning.
So when does the electoral campaigning period begin? In the review, I found little evidence—none, really—of electoral campaigning by third parties a full year ahead of the general election. Such research as there is suggests that, outside the Westminster village, the level of interest among the general public in the campaigning activities of third parties, other than in the immediate period, is very limited. Indeed, you could argue that, if you are doing it, you are probably wasting your money.
So what should then be an alternative period to 12 months? Well, we are exceptionally lucky because we have some real-life examples of alternative periods. The regulated period for the devolved legislatures is four months. My noble friend will no doubt say, “Well, that’s devolved Administrations. It isn’t the same as a national event”. But the regulated period for European elections, when they were held, was also four months, and they were national elections. It is not clear to me why a UK general election should have a regulated period that is three times as long as those required in Scotland and Wales, particularly as I have found no evidence of third-party campaigning abuse in elections in those devolved Administrations with only a four-month regulated period.
That takes me to Amendment 39 first—the other one that I am speaking to—which, quite simply, reduces the regulated period from 365 days, or one year, to 120 days, or four months. In one stroke, the bureaucratic burden on third-party campaigners is reduced, without any reduction in effective regulation, in my view.
But, in the spirit of constructive ingratiation that every Back-Bencher should adopt when he is seeking that the Government follow his point of view, I have also tabled Amendment 33A, which takes a different approach, although it has the same objective of clarifying the position of those third-party campaigners. Proposed Section 89A in Clause 24, on exemptions from restrictions, says:
“No amount of controlled expenditure may be incurred by or on behalf of a third party during a regulated period unless the third party”—
after which my amendment would insert the words
“could not reasonably be expected to have known they were campaigning within a regulated period”.
In other words, you give them a general bye because they could not have known.
The Government have used the word “reasonably” in connection with the intent test, which is
“reasonably be regarded as intended”
to promote, so there is a nice symmetry of wording here that I hope my noble friend will find attractive. My preference is for the simple one year to four months, but if the Government were inclined to accept Amendment 33A, I should be happy to take half a loaf off the table.
Whichever route the Government prefer, in my view, there is an unanswerable argument for a change to the regulated period, and the need for change has been made more important as a result of the ending of fixed-term Parliaments. I make no comment on the desirability or otherwise of fixed-term Parliaments, but the by-product of having them was to give third-party campaigners increased visibility of the likelihood of a general election coming along. Now, for better or worse, that forward visibility has disappeared. With that, I beg to move.
My Lords, I support the noble Lord, Lord Hodgson, in his amendments. I am acting as a kind of understudy for my noble friend Lord Blunkett, but I cannot say that what I shall say would be his lines, but in his absence, at least there is a Labour Back-Bencher speaking in favour of the amendments.
I should perhaps first declare my interest as vice-chair of Compass, which is a left-of-centre campaigning organisation that has been promoting a progressive alliance for some years, and as honorary president of the Child Poverty Action Group. I worked for CPAG for many years and, during that time, worked on trying to get child poverty raised as an issue in many general elections.
The question of the 365-day limit was raised in the Public Bill Committee: why is it so long? I think the noble Lord, Lord Hodgson, made a strong case for it being too long. When questioned, the Minister in the Commons had three arguments. The first was that we all have a fairly good idea of when an election will be. Do we? There is already speculation that there could be an election next year. Indeed, those who have been lobbying about the Bill, sometimes groups in combination, could find that they are in the regulated period already. We simply do not know, now that we are outside fixed-term Parliaments. A prudent organisation would need to start taking steps very soon not to get caught out.
Secondly, the Minister argued that, in effect, we are all in it together: we all have the same amount of information, so it does not matter. I will not be affected by this legislation, but the kind of organisation that I am associated with could well be.
Thirdly, and most worryingly, the Minister said:
“People will need to take that into account when they are campaigning politically.”—[Official Report, Commons, Elections Bill Committee, 26/10/21; col. 314.]
Well, exactly. That is the problem: what is often called the chilling effect will take effect. If organisations involved in campaigning take account politically, that could stop them campaigning for large periods of the electoral cycle. That cannot be right. The noble Lord made helpful distinctions. Looking back, when I was at CPAG, there would have been big periods when we could not try to make child poverty an issue because we would have been caught by this legislation.
Perhaps the Minister will have stronger arguments for why 365 days is appropriate, but certainly the arguments put in the Commons were either weak or worrying. I am not clear why we need any retrospective regulated period. Why can it not just start when the election is called? However, in the spirit of compromise, I am happy to support one or other of these amendments and am very interested to hear what the Minister has to say about them.
My Lords, the scars are still on my back from having taken the transparency of lobbying Bill, now an Act, through this House. I remind the Minister that we paused it when we ran into waves of criticism from all sides and arguments that we had not entirely got our own arguments in line. It was not quite as messy as this Bill, but we did at least manage to sort out something which did not displease everyone too much.
I have read the very useful report by the noble Lord, Lord Hodgson, which I compliment him on. It does its best to strike the balance between a number of very difficult and different priorities. All of us who have been involved in politics know that there are many civil society organisations. Some are easily politically neutral—as the Church is, most of the time—while others are inherently a bit on the right. Those of us who are old enough to have fought campaigns that the Society for the Protection of Unborn Children was active in will remember how vigorous, to say the least, it could be in its campaigns and how biased it was. Development NGOs and poverty NGOs, being in favour of greater public sector spending and greater equality, tend naturally to be more on the left. The balance between advocacy and electoral campaigning, as the noble Lord has said, is a difficult one, which we must all strike. In debating this issue with some of the organisations concerned, there were those who felt that they were entitled to campaign entirely as they liked because they were morally right and therefore should not in any sense be controlled in an election campaign.
I agree strongly with the noble Lord, Lord Hodgson, that 120 days is much better than 365 days. We no longer know when the election will be. It is one of the many bits of incoherence of this Government that putting through the abolition of the Fixed-term Parliaments Act in the Dissolution and Calling of Parliament Bill has not sorted out entirely the knock-on effects of that for this Bill. If I recall correctly, in his report, the noble Lord, Lord Hodgson, said that looking back on how various NGOs and civil society groups have spent on their advocacy and campaigning, the spending does come very much in the last few weeks and months before the election, rather than being spread evenly over the previous year.
Therefore, I strongly support Amendment 39 and hope that the Minister will accept that this is a reasonable adjustment in the Bill which the Government could accept, and which makes life simpler for those civil society groups which we all want to see engaging in campaigns and public debate. This tidying up would be a help to all concerned.
I thank the noble Lord, Lord Hodgson, for introducing these amendments at this stage. I know that we will have further debates but, like him, I think it is really important to set this in context. I am grateful to my noble friend Lady Lister for doing so. She has an incredible record of promoting civil society and action groups focused on particular issues. I know from my own experience that civil society activity is really important; one of the most important groups I have participated in is one that my party, the Conservative Party and other political parties were a bit uncomfortable dealing with—LGBT rights. It took a civil society, cross-party campaign to change things and influence manifestos.
I said at Second Reading that a thriving democracy is not limited to Parliaments and parliamentarians. Countries that fail to protect their citizens force civil society to stand up for them and defend human rights. That is really important. The noble Lord, Lord Hodgson, and my noble friend, who was more explicit, talked about that chilling effect. That is what we must look at. Perhaps it is even an unintended consequence. However, it is a simple fact that we do not know the date of the general election; it is in the gift of the Prime Minister to set, and sometimes it can be a long campaign and sometimes it can be short. We do not want those civil society organisations campaigning throughout a five-year period, raising issues such as child poverty, to stand back because they fear that they might be caught in this regulated period.
I agree with my noble friend that the simplest solution is to say that the regulated period should start when a general election officially starts, but I will compromise with the noble Lord, Lord Hodgson, on four months. Importantly, in some of his later amendments we will come to issues such as defining what might reasonably be regarded as campaigning, which he rightly raised. I agree about a code of practice being brought before Parliament.
Even if the Minister cannot accept these amendments today—I have no doubt that he cannot—I hope he will take away that this will have an impact on civil society that will impact negatively on our democratic activity. I hope the Government will listen to both the noble Lord and my noble friend Lady Lister.
My Lords, I fear I cannot be as accommodating with these amendments as with some earlier ones on which I invited further discussion. However, I say to my noble friend Lord Hodgson that there are parts later in the Bill where I hope we may be able to have fruitful conversations. However, those are for a future day.
I accept that there is a balance to be struck in these matters, but starting, illogically, with my noble friend’s Amendment 39—I suppose that is the upside-down, Whitehall way of looking at things—on reducing the length of the regulated period, I am sure many would agree that any campaigning up to 12 months before a parliamentary general election could have a significant influence on its outcome. This is not a new principle, nor has it come in since the Fixed-term Parliaments Act. The principle of 12-month regulatory periods has been in place for over 20 years, in which period civil society groups, including the group the noble Lord, Lord Collins, referred to—I nearly called him my noble friend—have been able to be very effective and move mountains within the electoral system.
It is the Government’s view that reducing the established period, notwithstanding the arguments I have heard from my noble friend—and I have the highest admiration for the care and concern he has put into studying these matters and his championing of the civil society sector and charities—would allow unregulated, uncapped spending and provide less transparency for the electorate than we have had over the past two decades.
The Minister referred to the established 12-month period. I was not aware of it as an established principle. Perhaps now or in a letter, the Minister will tell us when it was established, how long it has been in effect and how it has been tried and tested, since he is so good at telling us that.
My Lords, I will stand corrected if it is not the case, but the principle of a 12-month regulatory period has been in place for more than 20 years. That is the advice I have and if I am wrong, I will gladly correct that; no doubt my noble friend behind me will correct me very fast.
The closely related Amendment 33A seeks to create an exemption from expenditure rules for third-party exempt campaigners where they could not reasonably be expected to be aware that they were campaigning during a regulated election period. One understands the arguments that were put, but regulated periods have been in place for years. Third parties engaging in election campaigning should be aware of the rules and of the existence of regulated periods. However, the Electoral Commission has produced extensive guidance to help third parties understand the rules. It states:
“Most campaign activity undertaken before an election is announced is unlikely to meet the purpose test”.
It is an important test that is specifically intended to protect civil society, because
“you are unlikely to be reasonably regarded as intending to influence people to vote in an election when you do not know or expect that the election is happening.”
I have heard arguments around the corner of that, but the basic principle of the purpose test is there, and therefore the Government do not accept the idea that regulated periods for third parties are overly burdensome. It is important that spending is regulated and transparent and it is right that spending that promotes a political party in the lead-up to an election is regulated, whether that is undertaken by the party itself or by a third-party campaigner. Therefore, with great respect, I fear that I cannot accept my noble friend’s amendment and ask him to withdraw it.
I thank noble Lords who have participated in this debate. The noble Baroness, Lady Lister of Burtersett, and I can disagree violently, have done and will no doubt do so again in the future, but sometimes we can agree violently, and I am glad that tonight is one of the evenings when we do. I thank her for coming along at 9.20 pm to lend her support. The noble Lord, Lord Wallace of Saltaire, is quite right to remind us that third-party campaigners can be self-regarding and feel that they are by definition good. They are not all good, and we always need to bear that in mind. As I have said before, they are not populated entirely by angels. The noble Lord, Lord Collins, made a point about inadvertently catching people who are trying to do their best, but it all goes wrong.
I would not be happy about linking this to the calling of a general election. Some general elections come out of blue, but usually there is a period of electoral tension building up, and that is when efforts that would be part of electoral campaigning mode could be made. Not always, but most of the time, elections build up a bit and you know a month or two beforehand that something is likely to happen. That is why I think that four months is the right period.
However, my noble friend is not going to accept these proposals. He is entirely right to say that the Electoral Commission has worked hard on guidance. This takes us back to the old question of whether the guidance will hold true when something goes wrong—but the commission has tried very hard and I want to put that on the record.
As far as the period is concerned, 2014 made it the law; before that, it was practice. I, too, stand to be corrected. It had been understood that a year was about the time we should be keeping an eye open but, from the 2014 Act, it was the law. I can only say that “What we have, we hold” is not always a good answer. I do not think that it is a good answer here but, for the time being, I beg leave to withdraw the amendment.
Amendment 33A withdrawn.
34: Clause 24, page 33, line 32, after “during a” insert “reserved”
Member’s explanatory statement
See the explanatory statement relating to the amendment in Lord True’s name at page 33, line 26.
Amendment 34 agreed.
35: Clause 24, page 33, line 33, leave out “£700” and insert “£699”
Member’s explanatory statement
This amendment would probe the decision to limit expenses at £700.
My Lords, a couple of the amendments in this group relate to Clause 24, and then one moves on to Clause 25. Amendment 35 in my name is specifically an amendment to Clause 24. I should say at this stage that the noble Lord, Lord Wallace of Saltaire, has given notice of his intention to oppose the Question that Clause 24 stand part of the Bill. We have had quite a wide debate around Clause 24 during our debates on earlier groups, so I do not intend to go into any of the detail on it. The Committee and the Minister are clear about our concerns, so I will leave the noble Lord, Lord Wallace of Saltaire, to go into more detail when he speaks on the reasons why he wishes to oppose the Question.
In many ways, Amendment 35 is similar to earlier amendments of mine that we discussed in previous groups, which probed how certain figures had been reached in the Bill. This one is particularly about the decision to limit expenses to £700. I had a look at the Explanatory Notes to this section of the Bill. They say:
“Third-party campaigner controlled expenditure is only regulated during a regulated period. The offence under new section 89A(4) or (5) will only apply during a regulated period. New section 89A(2) outlines that 89A(1) will not apply to third-party campaigners spending below £700”.
I hope noble Lords will bear with me; I am going to put my specs on to be certain that I am reading this correctly. The Notes say that
“this mirrors section 75(1ZZB)(a) and (1ZA) of the RPA 1983.”
My first thought was, “Aha, perhaps that’s where the figure of £700 comes from”. However, Section 75ZA of the RPA says:
“The returning officer or the Electoral Commission may, at any time during the period of 6 months beginning with the date of the poll at a parliamentary election, request a relevant person to deliver to the officer or Commission a return of permitted expenditure in relation to a candidate at the election who is specified in the request.”
It goes on to clarify:
“‘Return of permitted expenditure’ means a return—(a) showing all permitted expenses incurred by the person in relation to the candidate, or (b) stating that the person incurred no such expenses or that the total such expenses incurred by the person was £200 or less.”
I may have missed further amendments to this, but I would be grateful if the Minister could clarify that I have read that correctly.
I also looked at Section 75(1ZZB) but could not find a reference to a figure there, either. However, it did provide a link to the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014. I sympathised with the noble Lord, Lord Wallace, when he said he still has the scars on his back from that Bill; I am rather glad I was not here at that stage. I took a look at that, but again I could not find a spending amount specified.
The Minister and noble Lords may be beginning to think that I do not get out enough, but I like to try to understand what is being presented to me. Therefore, I would be grateful to the Minister if he could shed any light on how the amount of £700 was reached. Perhaps I am just looking in the wrong place.
Amendment 45A sits within Clause 25. The noble Lord, Lord Wallace, has given notice of his intention to oppose Clause 25, and I have added my name. Amendment 45A would require the Secretary of State to
“consult the Electoral Commission before making an order under subsection (9)(a).”
As the Explanatory Notes clearly say:
“Clause 25 makes provision for the amendment of the list of eligible categories of third-party campaigners in section 88(2) of PPERA 2000. This allows for the ability to add, remove or amend categories of third-party campaigners from the list in section 88(2). This will allow for any new categories to be added to or removed from the list should that be necessary. Any change would have an impact on who is permitted to incur controlled expenditure during regulated periods under new section 89A.”
We will discuss Clause 25 in greater detail when we come back next week. That is the time to have the big debate on this. Time is getting on—it is nearly 9.30 pm—so I do not intend to go into a lot of detail on Clause 25 at the moment.
Our concerns reflect those of trade unions, charities and other third-party organisations, mainly around the fact that the effect of bringing together Clauses 24 and 25 would be to allow the Secretary of State by statutory instrument to add, remove or define permitted participants in election campaigning and effectively to prevent categories of organisation spending more than £700 on election campaigning in the 12 months leading up to a general election.
I have spoken to a number of charities recently. They have said to me that they can perfectly properly campaign on political issues in support of their charitable aims, including during elections. The activity is already appropriately regulated, including by the Charity Commission. They cannot pursue their charitable aims solely through political campaigning, nor support or oppose a political party or candidate. This comes back to some of the points that the noble Lord, Lord Hodgson, made previously. In many ways they exist for public benefit. They are engaged in campaigning to further their charitable purposes and support policies that achieve them—not for a specific political party. Their expert and independent voice is an important aspect of a well-functioning democracy and is vital in raising awareness, educating the public and scrutinising policy-making.
We know that registering with the Electoral Commission as a third-party campaigner is necessary to be able to spend above certain limits on election-related campaigning. For example, many animal welfare groups want to promote animal welfare as an electoral issue or highlight the different views of parties and candidates. This is perfectly acceptable within an election campaign, but the broad power that these two clauses bring together has the effect of potentially allowing the Government to prevent charities, or any other category of campaigner, registering as a third-party campaigner.
The amendment in this group we are considering in relation to this specifically looks at new subsection (9)(c), which gives the Secretary of State the ability to vary
“the description of a third party”
in the list. We are asking that:
“The Secretary of State must consult the Electoral Commission”
before he is able to make an order under this subsection.
Under Clause 58, regarding information to be included with the electronic material, the Government are able to make regulations under the powers in Part 6 of the Bill only following a recommendation from the Electoral Commission or consultation with it. My question to the Minister is: why are the Government happy to put in the Bill consultation with the Electoral Commission in that section, on electronic materials, but not in this section, regarding the ability of the Secretary of State to amend the list of recognised third parties, which could have far more serious consequences?
As I said, we will have a wider debate next week on Clause 25. I beg to move.
My Lords, at this late stage, I want to thank the noble Baroness for her introduction. I do not intend to repeat many of the points that she put forward, which were entirely valid.
The history of legislation in this area over the past 20 years is of fundamentally confused aims which are compounded over time and, particularly these days, are exaggerated by new forms of digital campaigning. It becomes increasingly difficult to achieve the stated aims of the legislation, which is to understand who exactly is undertaking campaigning, how they are doing it and where their funding is coming from. Until such time as we sort out some of the points that the noble Lord, Lord Hodgson of Astley Abbotts, directed us towards, about what legitimate advocacy is and what party-political campaigning is, we will never sort this out entirely.
At every stage of this legislation, we have to ask what problem it is supposed to be answering. Do you know what? It is never very clear. That is a fundamental problem. My understanding of Clauses 24 and 25 is that they try to limit third-party campaigning to specific UK-based bodies and therefore to stop foreign interference. I am not entirely sure about that. As somebody who spent an awful lot of time in the charity world, I look very carefully at the description of entities. The Explanatory Note for Clause 24 states that it
“inserts new section 89A(1) of PPERA, which will prevent any third party from incurring controlled expenditure (including notional expenditure) during a regulated period, unless it is either eligible to register under section 88(2) of PPERA or an unincorporated association with the requisite UK connection”.
Does “unincorporated association” mean a charitable entity? What does “requisite UK connection” mean? Does it mean registered as a charity in the United Kingdom or not? As the noble Baroness said, under Clause 25, the Electoral Commission has something that we might welcome; that is, an ability to stop whole classes of organisations or entities registering, but, at the moment, we do not know what they are or what they might be. If we did, we might agree, but there is something about the way in which this is all written that is unclear.
That leads us on to the key problem that that creates, which is how the Electoral Commission or the police will enforce this, particularly if it is entities of an uncertain nature outside the United Kingdom. It sets up yet another problem. I would therefore welcome it if the Minister could unpick all that and explain to us precisely what is going on here and what it is that we are trying to sort out.
My Lords, the noble Baroness, Lady Hayman of Ullock, very generously attributed to us two items of business on this string that were actually submitted primarily by her colleague, the noble Lord, Lord, Collins—that is Amendment 45A—and herself in respect of opposing the Question on Clause 24. I refer to page 8 and 9 of the second Marshalled List of amendments to support the validity of the counterclaim I am making.
The intention to oppose the question of Clause 24 was tabled in the name of the noble Baronesses, Lady Hayman of Ullock and Lady Meacher, who is in her place and may well want to speak to that proposition. All I wanted to say at this stage is that the noble Baroness, Lady Hayman, has opened up the big questions that lurk in relation to Clause 25. We will very certainly and definitely want to return to that, and we have stated our intention to oppose the Question that Clause 25 stand part of the Bill. But that is clearly not part of this string, and I think we will be resuming discussion on that at another time.
My noble friend Lady Barker has quite rightly pointed at the fog that surrounds the intended purpose of Clauses 24 and 25, and the lack of what I would describe as a credible justification for the alterations proposed in these two clauses, particularly in relation to Clause 24, seeing as that is the one that is in front of us at the moment. My noble friend Lady Barker pointed out some of the questions that arise from that. My understanding—maybe the Minister in replying could confirm it—is that an unincorporated association would, for instance, include an organisation which I believe is called the West Midlands Industrialists, which channels funds directly to the Conservative Party—entirely legitimately; I am not suggesting anything different. An unincorporated association could be a trade association, formal or informal; it could be some kind of NGO; it could just be an informal grouping that has got its constitution together. It is an entirely separate issue whether they are legitimate bodies to be funding elections—but the law as it stands says that that is legitimate. Except insofar as deleting Clause 24 might form part of the agenda for the rest of this evening, there is no proposal before us to change that. But I think we should perhaps ask the Minister if he or she can rehearse the unincorporated associations question, so we can understand, perhaps a bit more fully, what we will in essence eventually finish up this evening by nodding through. With that, I defer to the noble Baroness, Lady Meacher, who I am sure will want to speak on Clause 24.
My Lords, I rise to support the proposal on Clause 24 in the name of the noble Baroness, Lady Hayman of Ullock, to which I added my name. I think most of the points that need to be made have been made very well. I have some sympathy with the proposal from the noble Lord, Lord Hodgson; I think four months is a great improvement on a year as a bar on campaigning that might possibly be understood to be electioneering by small voluntary organisations—a very great improvement, actually. The real thing is whether we need this at all. I am very conscious that Clause 24 actually creates an offence. A small, rather vulnerable voluntary organisation could be setting out why its cause is so important and subsequently find it has done this within an election year; and it may be fined, I suppose, for this breach and for committing an offence.
So many bits of this Bill seem contrary to the whole essence of our democracy. Civil society contributes so very much to our political life through its work drawing attention to vulnerable groups and so on. I worked with the Child Poverty Action Group, as did the noble Baroness, Lady Lister. I was there for some years. When you are trying to draw to the attention of political parties just what really poor people are going through, how on earth could you be committing an offence if someone later calls an election?
I have a lot of worries about Clause 24, particularly because it creates that offence. It is a bit strange to me that Clause 24 stand part and Clause 25 stand part have been split because a lot of my concerns about Clause 24 are in fact deep in Clause 25—so much is left to regulations and Ministers can determine all sorts of things in relation to this provision. We will get on to that next time. I think that Clause 25 compounds the worries about Clause 24; I hope very much that the Minister will take this seriously and that the clause ultimately will not stand part.
My Lords, I wish to speak in support of the probing Amendment 35 in the name of the noble Baroness, Lady Hayman. We have to ask what my noble friend asked. What is this trying to solve? In the regulated period of one year and at a figure of £700, we are saying that an organisation that spends £1.91 a day for 12 months before a general election could be committing an offence. That is the amount that would have to be spent per day by the organisation or £13.46 a week or £58.33 a month. The very simple question I would like to ask the Minister is: how was that daily amount of £1.91 calculated? Why is it deemed to be illegal if an organisation exceeds that amount and exactly what problem does it solve?
My Lords, may I ask the Minister a question? I do not entirely understand this clause and the unincorporated association element is the least clear to me. I googled “unincorporated association” this morning and came away more confused than when I started. I think we would all be very grateful if the Minister’s office could circulate a letter explaining why this is there, what sort of organisations they have in mind, whether there is a history or problems with unincorporated associations and, if so, what they were, so that we have some idea of why this is necessary. I get a sense from others who have spoken that we are puzzled by where this clause is coming from, why it is there and what it is intended to do.
My Lords, I have to confess that I irritate my wonderful team in the Box when I say—and this of course plays straight into the attack—why is this not a consolidation Act? Of course, in the great scheme of things, consolidation Acts on all sorts of things would be wonderful. As I have said, this is intended to be a reforming Act dealing with some matters which are relatively urgent, but I agree that the way that it operates is relatively opaque and I understand why noble Lords have asked these questions.
Like others, I am not going to stray into Clause 25, although I realise there is an interrelation between the two. I know from the engagement I have had with colleagues on all Benches that Clause 25 is an issue which the House wants to consider in some detail, and I am fully ready for that. If the House will forgive me, I will not go into that except in so far as it deals with this matter.
Clause 24 is intended to do something that we would all like to do, which is to ensure that campaign spending comes only from UK-based or otherwise eligible sources. The clause is intended to address some of the concerns raised by the DCMS Select Committee in the other place in a 2019 report on disinformation—so-called fake news and foreign interference in UK elections.
The clause will restrict all third-party campaigner spending during a regulated period to entities that are eligible to register with the Electoral Commission. As has been said in the debate—the noble Baroness, Lady Barker, referred to it in her question—these are the bodies listed in Section 88(2) of PPERA. There is a long list there that includes charitable incorporated organisations under Part 11 of the Charities Act and Scottish charitable incorporated organisations. The clause also refers, in new Section 89A(7), to an unincorporated association with “the requisite UK connection”, which is connected to overseas electors.
The problem we seek to address is that, currently, foreign third-party campaigners can legally spend on UK elections underneath the recognised third-party campaigner registration thresholds, which are £20,000 during a regulated period in England and £10,000 in Scotland, Wales and Northern Ireland. This kind of activity becomes illegal only beyond those thresholds because foreign campaigners are unable to register with the Electoral Commission. We seek to control those campaigners. I think the Committee would agree that it is important that only those with a legitimate interest in UK elections are able to spend money campaigning and seeking to influence the UK electorate. Actually, the Electoral Commission recommended a specific ban on any campaign spending from abroad in its 2018 report Digital Campaigning. Again, I think there is agreement across the Committee that this is something we should seek to deal with.
Therefore, the clause is designed to remove the scope for any legal spending by foreign or otherwise ineligible third-party campaigners underneath the existing registration threshold. It brings that down to a £700 de minimis level, which is consistent with the “permitted sum” that a third party can incur when campaigning for or against a candidate without being authorised by an agent. That is in Section 75(1ZA) of the Representation of the People Act 1983. It is there; someone flashed it to me. I must not say that someone sent it to me on WhatsApp, otherwise I will appear all over the newspapers. It was sent to me in a hurry.
The sum in the Representation of the People Act 1983 has been increased over time. It went up most recently in 2014, after the ECHR held in the case of Bowman v United Kingdom in 1998 that the original limit in the 1983 Act was so low as to amount to an unjustified restriction on freedom of expression, so we were required to raise it.
Therefore, although I understand the puzzlement about the way this has been drafted, I hope that we can discuss the interlocking between Clauses 24 and 25. I understand the concerns about what organisations should and should not be there, but the purpose of this is the inclusion of the £700 de minimis threshold. It balances the desire that we all have to prohibit spending by foreign and other ineligible third parties with not criminalising low-level, potentially inadvertent breaches that are unlikely to adversely impact an election, and where there has been jurisprudence on the matter. I will not go into Clause 25, but I understand the concerns expressed on other Benches. We will address that.
We are conscious that legitimate categories of third parties which are not currently on the list of categories of campaigners may emerge in the future. Under Clause 24, if they did so, they would be significantly restricted in their ability to campaign—they could only go up to £700, rather than the existing threshold—if they could not be added to the list quickly. So, the interlocking is intended to allow the Government to amend the list of categories of third-party campaigners as necessary, subject to parliamentary approval via affirmative resolution.
While there may be issues in relation to Clause 25 that we will wish to address, I hope that, with that explanation, noble Lords will understand that we are seeking to restrict foreign campaigning.
I am sorry to be obtuse. I do not entirely understand Clause 24(7), which defines the requisite UK connection of an unincorporated association. I think I understand it as meaning that there must be at least two people associated with it who, while they and anyone else in the unincorporated association may be living overseas, are at least on the register. Is it therefore envisaged that we will have more unincorporated associations which are based overseas but campaigning in Britain?
My Lords, it is required to have a UK connection. I will write to noble Lords to explain that clearly. In the two days that I have been listening in Committee, your Lordships have rightly—sometimes gently, sometimes aggressively—asked the Government to deal with foreign intervention. That is what this clause is intended to bear down on. We can have further discussion on the meaning of subsection (7) and I will undertake to write on that but I hope that, with those assurances—
I apologise for intervening at this time of night, but it would be so helpful if the Minister could be absolutely clear. My understanding is that charities are all on a list and can campaign; that is fine. Can he confirm, to me anyway and perhaps to the House, that UK-based organisations that are not necessarily charities but nevertheless promote all sorts of interests will not be covered by this offence and by these regulations?
Again, to help the House, I will write to clarify that. The clause refers to the bodies which the clause applies to—sorry, that sounds very circuitous. A third party that falls within any paragraph of Section 88(2) of PPERA is exempt from the provision. I will make that clear in more correct legal language, but that is how I understand it as a lay person. I hope that I can reassure the noble Baroness absolutely on that. I will check it with my officials tomorrow. I hope that, leaving aside whatever questions there may still be about Clause 25, your Lordships will accept that Clause 24, however imperfect, should not be excised from the Bill.
The change refers to foreign or otherwise ineligible third-party campaigners. I do not know how many foreign organisations there might be that might want to be caught, but if I had such information, I would gladly share it with the noble Lord. As I have said—if I could just complete the explanation—the Section 88(2) organisations are not caught by this provision.
Organisations which at the moment spend below £20,000, which will now go down to £700, will be affected. My question is: how many UK-based organisations that will spend between £700 and £20,000 will be affected by the change? I accept what the Minister says vis-à-vis foreign interference, but there will be organisations in the UK that spend between £700 and £20,000 within the 365-day period that will be affected by this, that are not registered. How many organisations have the Government assessed will be affected?
My Lords, there are other provisions in the Bill in relation to lower-tier and upper-tier spending, and in relation to the £10,000 and the £20,000. It is not specifically related to these provisions. I repeat my undertaking to the noble Lord that I will try to give him the advice he is asking for. Whether my officials, or the Electoral Commission, have a full list I cannot tell him at this hour. I understand that he might be concerned, but I urge noble Lords to understand that this clause is intended to apply to foreign entities.
I thank the Minister for his response to these amendments and other noble Lords for their contributions to the debate. I apologise to the noble Baroness, Lady Meacher, for forgetting to say that her name was with mine on the notice of our intention to oppose Clause 24 standing part of the Bill, and I thank her for her contribution.
The debate has raised some important issues that we will come back to, not just next week but further on in the debate. The Minister explained that Clause 24 is intended to bear down on foreign interests, and that only people with legitimate interests to influence UK elections should be able to contribute. I do not imagine that anyone would disagree with that aim, but there are still concerns about it. I am sure that we will revisit issues around foreign donations when we reach the clauses on overseas electors.
Regarding my inability to find the £700 in the RPA, if the Minister has a moment, or if one of his officials could send me the link so that I can see it with my own eyes, that would be marvellous. One concern here is the effect of the combination of Clauses 24 and 25 together; there is a bigger concern around that. I am sure we will revisit these concerns about Clauses 24 and 25, because they are so interconnected. I am sure that other noble Lords, as well as myself, would very much welcome further discussion with the Minister on this area, because there are very genuine concerns, particularly among a number of other organisations, including charities. For now, I beg leave to withdraw my amendment.
Amendment 35 withdrawn.
Amendments 36 to 38
36: Clause 24, page 34, leave out lines 25 and 26 and insert—
““reserved regulated period” means a period in relation to which any limit is imposed by paragraph 3, 7, 9, 10 or 11 of Schedule 10 (periods involving parliamentary general elections or general elections to the Northern Ireland Assembly).”Member’s explanatory statement
See the explanatory statement relating to the amendment in Lord True’s name at page 33, line 26.
37: Clause 24, page 34, line 36, after “to” insert “reserved”
Member’s explanatory statement
See the explanatory statement relating to the amendment in Lord True’s name at page 33, line 26.
38: Clause 24, page 34, line 38, leave out subsection (4) and insert—
“(4) In subsection (3), “reserved regulated period” means a period in relation to which any limit is imposed by paragraph 3, 7, 9, 10 or 11 of Schedule 10 to PPERA (periods involving parliamentary general elections or general elections to the Northern Ireland Assembly).”Member’s explanatory statement
See the explanatory statement relating to the amendment in Lord True’s name at page 33, line 26.
Amendments 36 to 38 agreed.
Amendment 39 not moved.
Clause 24, as amended, agreed.
Clause 25: Third parties capable of giving notification for purposes of Part 6 of PPERA
40: Clause 25, page 35, line 4, after “(2)” insert “, as it applies for the purposes of a period in relation to which any limit is imposed by paragraph 3, 7, 9, 10 or 11 of Schedule 10 (periods involving parliamentary general elections or general elections to the Northern Ireland Assembly),”
Member’s explanatory statement
This amendment limits the order-making power conferred by the inserted subsection (9) for section 88 of the Political Parties, Elections and Referendums Act 2000 so that the power can be exercised only for the purposes of periods involving parliamentary general elections or general elections to the Northern Ireland Assembly.
Amendment 40 agreed.