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

Debate between Lord Bishop of Oxford and Baroness Mallalieu

Tuesday 21st January 2014 Lords Chamber

[Lord Harries of Pentregarth (CB)]

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.

[Baroness Mallalieu (Lab)]

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.

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

Debate between Lord Bishop of Oxford and Baroness Mallalieu

Wednesday 18th December 2013 Lords Chamber

[Lord Harries of Pentregarth]

My Lords, I take seriously what the noble Lord, Lord Tyler, has said and what earlier on the noble Baroness, Lady Williams, said. Clearly, if there is a possibility of abuse, that must be guarded against. The commission takes that seriously. However, we must also take into account a number of other factors, not least that the Electoral Commission regards constituency limits as they are in the Bill at the moment as unworkable and unenforceable. It states:

“In our previous briefings on Part 2 of the Bill we have noted that except in extreme cases, the new year-long constituency controls may be unenforceable within the regulated period, given the difficulty of obtaining robust evidence to determine and sanction breaches”.

That seems to be a key point. If the Electoral Commission believes that these controls cannot be enforced, there must be something fundamentally wrong with the law.

It should also be noted that political parties’ national campaigning during the year before a UK general election is not subject to limits on spending at constituency level. Why is there one rule on this for political parties? Perhaps I can ask the Minister to reply to this. Why, when according to the Bill there is to be a limit on what third-party campaigners can spend, should the political parties have a rule that says that there is no limit on what they can spend in a particular constituency? Furthermore, PPERA did not contain the provision for constituency limits. We have heard a lot about the threat of abuse at constituency level, but there was no clear evidence of abuse at the 2010 general election.

The Electoral Commission states:

“The existing controls for constituency level campaigning are set out in separate rules under the Representation of the People Act 1983 (RPA)”.

These controls cover constituency campaigning by candidates who are standing for election and spending by non-party campaigners who campaign for and against those candidates, as, for example, in “vote for this candidate”. Earlier on the noble Baroness, Lady Mallalieu, made a point of this. Any potential abuses of the kind that the noble Lord, Lord Tyler, and the noble Baroness, Lady Williams, have pointed out are the responsibility of the police to investigate. The Electoral Commission does not have any enforcement powers in relation to these rules.

The main burden of the commission’s report, backed up by a number of vivid case examples, is that it would be impossible to comply with this law because a fair amount of campaigning crosses a number of different constituencies. For instance, the Save Lewisham Hospital campaign operates across three parliamentary constituencies. So far, the campaign has collected and spent around £36,000. The hospital serves a number of different constituencies. How on earth would the campaigning groups involved in the campaign allocate the different amounts of expenditure per particular constituency?

A similar problem arises in relation to Stop HS2. As well as the national organisation, there are 120 local action groups. In the Kenilworth and Southam constituency alone, there are 11 separate action groups. Stop HS2 goes through a whole range of different constituencies. How are the groups that are part of this campaign to allocate their expenditure to the different constituencies? Even if they were able to do that, how would the Electoral Commission be able to enforce it?

I shall not repeat other examples because of the shortage of time. They are all set out at the back of the report. One example relates to stopping climate change. We must take seriously what the noble Lord, Lord Tyler, has said. It may be possible for the Government to bring forward a very sharply focused amendment to deal with that problem. As it stands at the moment, for the reasons I have given, it would be difficult if not impossible for campaigning groups to comply with the law and the Electoral Commission would have great difficulty in enforcing it.

[Baroness Mallalieu]

My Lords, I, too, intend to oppose the Question that Clause 28 stand part of the Bill. I shall be brief.

Clause 28 needs to come out altogether. First, it is written in gobbledegook. At Second Reading I took up some of the House’s time by reading out part of Clause 28. I recommend it to the noble Lord, Lord Tyler, for his insomnia. It is impossible for a criminal lawyer like me, not a charity lawyer or an electoral lawyer, to begin to understand it. It is inconceivable that any small charity or campaigning organisation without its own legal team would be able to look at it and understand it. They would be bound to have to seek expensive legal advice that would take money and staff away from the objects and the work that they were doing. Whatever else happens in relation to Clause 28, this present clause should be taken away and written in English.

Secondly, if the Government insist on having a clause of this nature, perhaps I may also point out, as has already been done by the noble and right reverend Lord, Lord Harries, that it is unworkable. It is impossible to divide some of the expenditure by campaigning organisations between constituencies. Where does it leave the rally that draws people from a number of different constituencies? Where does it leave the battle bus that drives around the streets and crosses some constituency boundary? How on earth does an organiser who is running a national campaign apportion the particular pieces of his time to the various constituencies that may or may not be covered?

Thirdly, it is unenforceable. The Electoral Commission, comprising the people who are meant to be doing that, has said so, as your Lordships have just been reminded. One can well imagine the avalanche of complaints that are likely to be made to the Electoral Commission during and after a campaign, especially if a result has been close. Its resources are now stretched beyond what it is being required to do. It is unlikely that it will receive adequate additional resources to help with the Bill. If it does, they will be inadequate for investigating and dealing with the process of investigation and adjudication of these complaints.

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

Debate between Lord Bishop of Oxford and Baroness Mallalieu

Wednesday 18th December 2013 Lords Chamber

[Lord Harries of Pentregarth (CB)]

My Lords, in putting my name down to oppose Clause 29 standing part of the Bill, I hope that the Minister will be able to explain what this whole clause is really about, and what mischief it is intended to block. I went to the Public Bill Office, whose staff have been extraordinarily helpful on this occasion, as on so many others. In order to run through my amendments and to make sure that I understood the Bill properly and what I was putting forward, I asked about this clause, and what it really meant. I said to them, you are all highly trained lawyers; you will be able to tell me what it is all about. They said that they deliberately do not have lawyers in the Public Bill Office because it is very important for people to understand legislation, and that is why they are lay people and not lawyers. I said, “That’s very good—I’ll leave this with you for a day, and perhaps you can tell me what all of this is about”. I went back the next day and they said that they were very sorry but they did not think they would be able to help me with this one. I then contacted the lawyer who specialises in electoral law who has been advising the commission, and asked her. She sent me a reply. I am still not quite sure that I understand what it is all about, but this is what she says:

“Clause 29 imposes limits on the amount non-parties can spend on activity that could reasonably be regarded as promoting a particular party and none other, to £38,500, unless they have the party’s authorisation. This limits the freedom of expression association beyond the limits of proportionality”.

She adds:

“Although not a focus of the commission’s work, it is another position that would leave groups open to inadvertence, and the onus on what parties do, as opposed to campaigners’ intent. If the rest of the commission’s recommendations are implemented, this would be a highly peculiar—and, from a regulatory viewpoint, bizarre—provision to remain”.

I hope that the Minister will be able to explain what this clause is really about, and what mischief it is intended to block.

[Baroness Mallalieu (Lab)]

My Lords, my name is also down to oppose the question that Clause 29 stand part. We had some powerful speeches from Welsh Members of your Lordships’ House the other day about the living language that is Welsh. This is another part of the Bill that is written in the living language of gobbledegook, although that is living only in parts of Whitehall. I, too, was completely puzzled by it. I obtained the Explanatory Notes, read them with care, and was none the wiser at the end of it. This, I hope, will also be included in the undertaking that the Minister gave when he said that he felt an obligation to look at those parts of the Bill that are incomprehensible. This certainly needs translating; it has been written by lawyers for lawyers—of a specialist sort—yet not for the people who have actually to apply it, particularly those in small charities and organisations. They have to be able to understand the detail of the Bill. I hope this clause can be completely rewritten, if indeed large parts of it are at all necessary.