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

Lord Phillips of Sudbury Excerpts

Wednesday 15th January 2014 Lords Chamber

Moved by

[Lord Phillips of Sudbury]

36: Clause 26, page 13, line 19, at end insert—
“( ) In subsection 8(a) after “body” insert “(except a body which is a charity)”.”

[Lord Phillips of Sudbury (LD)]

My Lords, first, I should like to say how good it is to see the other Lord Wallace—my noble friend Lord Wallace of Saltaire—back in his place on the Front Bench having, I hope, had restorative attention.

In Committee, there was a long debate on this amendment, which has a simple purpose: to remove charities altogether from both the Bill and PPERA 2000. I am bound to say that in the intervening period there has been a great deal of discussion, meetings and lobbying. It is fair to say that the dear old charity sector —which must be one of the slowest of any sector in our society to get the hang of things, while being a most invaluable element in our society—is now showing its support, late in the day, for the proposal that charities are taken right out of the Bill. It is a pity that this movement did not show itself a good deal earlier.

I must also explain that in Committee there were three different supporting names on this amendment: my noble friends Lady Williams, Lord Tyler and Lord Greaves. They—how shall I put it?—stood back at this stage of the Bill to enable Peers from other parts of the House to put their names to an amendment which is felt strongly about. It is a great resource and support to have the names of the noble and learned Lord, Lord Mackay of Clashfern, and the noble Lords, Lord Best and Lord Low of Dalston, on the amendment. They are, respectively, an ex-Lord Chancellor, an ex-chief executive of the Joseph Rowntree Foundation and an ex-chief executive of the Royal National Institute of the Blind.

We have put this amendment forward today and continue to feel really strongly about it because we are convinced that to draw charities into this net is counterproductive, legally illogical, because they are the subject of a completely separate and rigorous branch of law in a way that no other NGOs are, and wasteful of scarce and valuable volunteer time and philanthropic resources if we persist in so doing. I shall address only a few points. I am very mindful of the time and my colleagues will deal with different points relating to the amendment and its consequences.

The one word that keeps coming back to me in relation to all this is “practical”—or, in this case, “impractical”. It seems a thoroughly impractical proposal to lump charities in with NGOs, which can range right across the board from being relatively public-spirited—as, for example, most of the supporters of the Harris commission certainly are—to completely self-interested NGOs, some of them acting as fronts for commercial organisations and others with political aspirations. The one thing you know for certain and beyond peradventure about a charity is that it exists exclusively for the public benefit. Private benefit and charity are wholly incompatible dimensions.

This branch of our law is not some Johnny-come-lately or some rather weak branch of law, if I may put it that way; it is about as fiercely and strongly embedded in our culture as any aspect of law. What is more, the Charity Commission, which has been doing its job for more than 150 years, is a committed body with vast experience, though admittedly with inadequate resources, which is there to try to police this extraordinary sector. Extraordinary it is because it actually needs wonderfully little policing. The amount of fraud and—how shall I put it?—manipulation in the charity sector is a tribute to the best in British society and culture.

The duty on us as legislators, when touching on this sector in particular, is to act with extreme caution because one can so easily damage that which one hopes to assist. Above all, we need to avoid confusion in the legislation that we shower on the British public. There is one way of avoiding confusion in the issue of the regulation of NGOs: to avoid shackling charities of all organisations with duplicatory regulation and thus the responsibility for two sets of regulations and indeed regulators. Of all the groups in our society that surely do not need that, above all others by far are charities. Although of course the Bill is vital and it is good that amendments have been introduced—we thank the Government for being so receptive—it is important that we retain our civic vitality, which, let us be honest, is languishing somewhat. However, in the process, we must not damage that which we seek to uphold.

The confusion surrounding charities in relation to the Bill is quite extraordinary. I can illustrate that by referring the House to the letter written last night by the Charity Commission to a number of us now in the Chamber. It deals in particular with this amendment because the Charity Commission considers it of such importance. I confess that many of us have been trying for some considerable while to get the Charity Commission to come out of its shell and be clear about what it thinks of the arguments advanced on each side of this debate. At least now we have a letter, written by the public affairs manager of the Charity Commission at 6.30 pm last night. Pretty early this morning, as one might guess, I was on the telephone to seek clarification.

The letter has four paragraphs. Can one ask Peers to put up their hands if they have had this letter? It is probably unprecedented, but I have seen one, anyhow. I suspect that a minority of those here have seen this letter and that it will be helpful to quote from it. It is important given that the Charity Commission is the kingpin in this field. The first point that it makes in relation to this amendment is under the heading “Charity law and electoral law—the current situation”. It states:

“Charities must never support political parties or candidates for election”.

That is the basic premise. It continues:

“A charity can engage in campaigning to influence public policy but only in the context of supporting the delivery of its charitable purposes. We recognise that there are some circumstances where a charity’s activities can adhere to charity law but may still require them to register with the Electoral Commission during an election period”.

I have to be honest. I was slightly crestfallen when I saw that because my proposition hitherto has been that charity law and election law in this bit of the landscape are so similar as to be no different from each other. I argued this with the senior member of the commission who is fielding calls in relation to this letter and after a while, she said, “Well, perhaps we did not put this as we intended”. It then became apparent that when the Charity Commission made this statement it was talking about the law as it stands now, not the law as it will be after the Bill is enacted.

[Lord Tyler]

I am grateful to my noble friend because I shared his confusion about that missive last night. I too quite separately raised a question with the same person at the Charity Commission and was sent back this very explicit statement:

“We are by no means suggesting that CC9 is not fit for purpose. Instead we believe that CC9 provides clear and concise guidance on what is and is not acceptable for charities when campaigning. This is an issue that we regulate firmly and take action where necessary”.

In other words, far from saying as seemed to be the first impression that I had from the previous letter that the Charity Commission was not up to this job, it thinks it is up to the job and does not think it is necessary to change the situation so that another commission is so actively involved, as the Bill would suggest.

[Lord Phillips of Sudbury]

I am grateful for that. My noble friend is lucky in having had a letter. When I finished the conversation, the Charity Commission said to me that it would send a new communication forthwith to everybody who received the first one to make clear that this statement did not relate to the law as it will be after the passing of this Bill. That is just one small example of—

[Lord Harries of Pentregarth]

I am fortunate enough to have the original letter before me. I wonder what the noble Lord makes of the statement:

“We do not believe that in the best interests of public trust and confidence in charities an exemption for charities is the most appropriate method for the regulation of charities during an election period”.

There cannot be anything clearer than that. I know it is very disappointing for the noble Lord, but the Charity Commission has come out unequivocally in opposition to his amendment and I think he will have to face that.

[Lord Phillips of Sudbury]

My Lords, the noble and right reverend Lord, Lord Harries, is actually addressing a different issue in this letter. I was dealing with paragraph one. He is dealing with paragraph two, about public trust and confidence in charities, which I was about to come on to and which, if I may, I will deal with in a second.

I emphasise the fact that the Charity Commission has delivered to those in this House who are particularly involved with this issue some guidance in relation to the law—comparing electoral law with charity law—that leaves us at best in a state of some confusion. I think, as I will say in a minute, that the approximation of charity law and electoral law is now so close that to all intents and purposes it is in practical terms the same. However, as we know better than anybody on earth, the capacity of lawyers—and not only lawyers—to argue about that is infinite. When you get a letter such as this from the Charity Commission, you can see why.

--- Later in debate ---

[Noble Lords]

No.

[Lord Phillips of Sudbury]

My Lords, that is, on the face of it, a compelling argument. However, I am trying to put it to the House that the Charity Commission’s own advice here is faulty. It admitted as much in our conversation this morning and said that it would circulate a letter forthwith.

[Baroness Royall of Blaisdon (Lab)]

Which it has not done.

[Lord Phillips of Sudbury]

Which, of course, it has not done. I suspect the reason is that when the person I was speaking to went back to the chief commissioner and the chief executive, they said, “My goodness, we can’t go into print admitting that we’ve made a mistake”.

[Lord Cormack]

I am very grateful. Of course, I was also minded to support my noble friend. However, time is at a premium. There is clearly a problem here. Would it not be better to have discussions with the Charity Commission and the Minister between now and Third Reading, and then, perhaps, to table an amendment that does have their support? We can waste an awful lot of time on this. I am not being critical of my noble friend, for whom I have very real regard, but he has been speaking for a quarter of an hour or more and we have very important issues that we must determine today.

[Lord Phillips of Sudbury]

My Lords, I am in a cleft stick; I have indeed got 15 minutes on the Clock, but my noble friend will accept that I have been interrupted five times now, which takes a wee bit out of one’s available argument time. I will keep this as short as I can. It is unfortunate—let us put it that way—that we have a letter at the 59th minute of the 11th hour which is, at best, unclear.

I know that a number of my colleagues have different points to make. It has been said, time and again, that there should be a level playing field between non-charitable NGOs and charitable NGOs. Well, yes and no. First, we have a whole lot of improvements for the non-charity NGOs. Secondly, however, the reason we persist in seeking this important change is precisely because charities are basically different in kind, not just because they have a separate branch of law and a separate regulator.

The bureaucratic consequences for charities having to meet the demands of two regulators will be significant. Although the thresholds have been raised, which is important, the number of charities that will still be swept up by this legislation is far greater than many Members of this House may think. It will be many thousands. It does not take a great deal to rack up £20,000 if you are a charity with a few branches around the country.

Secondly, given that the vast majority of charities have no paid staff, the people who will have to implement this complex bureaucratic stuff are not professionals but volunteers. Simply tooling up a charity that is wholly run by volunteers to cope with this new regime and all that it means will be a massive and demoralising task for so many of them. Frankly, volunteers do not want to spend their precious hours getting to understand the legislation that we are in the process of putting on the statute book and then trying to get to grips with it in practical terms, filling in the forms and all the rest of it. The consequences, I put it to the House, will still be huge, despite the number of charities that are, on the face of it, taken out of the purview of these provisions by the raising of thresholds and the rest of it. I cannot emphasise that too strongly.

Let us suppose that you are a trustee of a charity. You will not have a paid chief executive, so it may be a senior volunteer who comes to you and says, “Look, Mr Phillips, we have this new legislation. We do not think we are touched by it because we do not think we will reach the threshold, but what do you want us to do?”. I am afraid an awful lot of trustees will say—

[Lord Hodgson of Astley Abbotts (Con)]

Not only the Charity Commission opposes this amendment; the Electoral Commission does, too. Also, we have a situation where the Government have given way on the review period. We argue there is going to be a review of this piece of legislation, so if the matters that the noble Lord is so concerned about come to pass, the review will pick them up. We are now in supposition territory. I hope that the noble Lord will reflect on that before deciding what to do with his amendment.

[Lord Phillips of Sudbury]

I certainly will. I am grateful for that point, because I was going to say that a review of this will be essential in light of what happens at the next general election. Indeed, the noble Lord, Lord Hodgson, tabled an amendment that I think—

[Lord Hodgson of Astley Abbotts]

It is a government amendment.

[Lord Phillips of Sudbury]

It is now a government amendment, so we are going to get it—and that is vital because we will learn a great deal after that. I will just finish the point that volunteer trustees, perfectly understandably, are going to be cautious about this new legislation. The last thing in the world they will take a risk with is the prospect that things may get a bit out of hand or may not be perfectly understood, and that they, the trustees, will end up being personally liable. As I am sure everybody hearing this debate knows, they are personally liable. It does not matter if they are a limited-liability charity.

All in all, therefore, these are some of the reasons—I think other contributors to the debate will add others—that we should avoid the huge confusion that will follow if we subject charities to both charity law and electoral law. For good reason, I will not detain the House now beyond saying that this is still a very important issue that touches a hugely important part of our civic society—the very part of our civic society that does so much to uphold and vivify election campaigns. I beg to move.

[Lord Mackay of Clashfern (Con)]

My Lords, I am extremely well aware that the Charity Commission has given us a document to say that it is against this amendment, but the charity commissioners do not actually do legislation; that is our responsibility. They have set out in this missive that we got about 6.30 pm yesterday some of the reasons for their opposition.

Charities are, as I understand it, very fully regulated by law. Charities are those bodies that are established for charitable purposes only, and charitable purposes are defined as falling into certain classes, with the general provision that a charitable purpose is one that must be for public benefit. When I got this missive and had a chance to look at it, I e-mailed back the writer of the document asking, “Are you saying that a charity can lawfully, under existing charity law, engage in activities regulated by this Bill?”. I got an e-mail back to say that he was out of the office today and that, if it was urgent, I should ring a number. So I rang the number, and no one answered—although these things happen, even in the best regulated circles.

This is an extremely important point, as I see it. Charity law is sufficiently robust to require charities to obey the rules, which state that they can use their expenditure and efforts only in support of or in pursuance of their charitable purposes. As the missive says:

“Charities must never support political parties or candidates for election”.

At the moment, I cannot see why it is necessary that the Bill applies to charities. However, the Charity Commission, in the missive we got last night, goes on to explain that if the charities were exempted, its task of making sure that the charities obeyed the law in this regard would be too much for it, particularly in an election period. The Government have cut its budget so much that it cannot support this or do it properly. If that is the reason for passing the responsibility for seeing to this from a government organisation, the Charity Commission—which has a very long history of 150 years or so—on to charities, which depend on voluntary contributions for their financial support and to a great extent for their personnel support, it is an extremely bad one. Why should the government organisation pass on its responsibility to ensure that this is happening to the charities themselves and have them registered for that purpose?

This is an extremely serious matter that the Charities Commission has raised in this missive to us. So far as I am concerned, it requires the Government to look into the matter. I would like to see the Government undertake to look into this between now and Third Reading. I do not wish to pursue the matter further today. I originally raised this matter with the noble Lord, Lord Wallace of Saltaire, before he was away, and I am extremely glad to see that he is able to be back with us again. This is an important matter that I feel strongly about, and one that your Lordships’ House should not just pass over. We do not need to spend long on it, because it is a short but very important point.

--- Later in debate ---

[Lord Harries of Pentregarth]

The whole point of those provisions, which is where the sting is, is that you can campaign on and focus on an issue and that can be reasonably regarded as indirectly supporting a particular candidate or party, or you can even do so inadvertently. Let us be quite clear: charities are able to campaign on issues.

[Lord Phillips of Sudbury]

I am grateful to the noble and right reverend Lord for giving way, but he really cannot get away with that. You cannot inadvertently satisfy the requirements of Clause 26 when it says that you “intend” to promote or procure electoral success. Intention is not the same as inadvertence at all, and it is a very strong test. The fact that there are other matters that you are trying to advance at the same time does not get away from that test.

[Lord Harries of Pentregarth]

Then why does the Charity Commission guidance—and I have read carefully both its main guidance and its guidance in relation to the Electoral Commission—include a series of examples, just like the Electoral Commission, where charities may or may not be caught? This is a borderline area. Charities are able to campaign and to campaign vigorously, and many trustees encourage them to do so. Therefore, it is always possible for them to come within the scope of this provision.

If you take out charities, only two courses are open to you. Either you have an unlevel playing field so that you have a charity campaigning against a campaigning group which is not a charity, and the charity, if it were taken out, would be able to spend an unlimited amount of money, whereas the non-charitable campaigning group would have very strict limits on what it was allowed to spend, or the Charity Commission could set up a much stronger policing body than it has at the moment—one which would match that of the Electoral Commission.

[Lord Harries of Pentregarth]

My Lords, I take the point but it was important to state the argument because some people are understandably initially very attracted to this idea. It would lift the regulatory burden, and people are attracted to the idea of taking out charities. However, there are very strong, compelling and rational reasons why this should not be done, and that is why it is opposed by the Electoral Commission, the Charity Commission, the commission that I chair, the NCVO, ACEVO and all the others.

[Lord Phillips of Sudbury]

The NCVO has taken up—

[Noble Lords]

Order!

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, that has been the legal position since 2000. It is very rare that it would happen but, conceivably, there is a very limited range of activities that could fall within that. It would not be the intention of the charity but it might be reasonably seen by others to be the intention of the charity. It is because of that very limited possibility that it is important to maintain the provision as it is rather than implement the exemption proposed by my noble friend.

[Lord Phillips of Sudbury]

My Lords, I am grateful to my noble and learned friend the Minister for the way in which he summed up the debate. I am grateful to all those who have participated in discussing this important amendment. Given that Third Reading is on Tuesday, realistically there is not time to have the sorts of discussions that some noble Lords have looked for, particularly in terms of the speed at which the Charity Commission will move in relation to these sensitive matters. One has to look to the review of the workings of this legislation in the wake of the 2015 election. That will be vital. Having said that, I beg leave to withdraw the amendment.

Amendment 36 withdrawn.

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

Lord Phillips of Sudbury Excerpts

Monday 16th December 2013 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

I too am grateful to the noble and learned Lord, Lord Hardie, for giving us a chance to discuss this very important matter this afternoon. I have not participated in the Committee stage of this Bill so far, so I need to declare an interest as a trustee of various charities, which are in the register of interests, and as the official reviewer of the Charities Act, appointed by the Government 18 months ago.

I would like to ask my noble and learned friend for some reassurance on the implications of Clause 26(2); in particular, I am following through the remarks of my noble friend Lord Tyler about unintended consequences. The noble Baroness, Lady Mallalieu, referred to round-robin meetings at general election campaigns, and I want to use that as a practical example. If a charity were to invite all parliamentary candidates in a particular constituency to one of the round-robin meetings, I presume that it would not then be caught, because it is not promoting or procuring the electoral success of one or more particular registered parties. However, suppose it was decided by the charity specifically not to invite one party: does that then mean that it is caught because—by leaving one party out—it is promoting or advocating the policies of the rest?

The particular concern that has risen in my correspondence was from black, minority and ethnic charities, which may not wish to invite—for obvious reasons—the British National Party to one of their round-robin meetings. They are concerned that, by so doing, for perfectly obvious reasons, they may inadvertently fall into the trap of, or the category caught by, the provisions of Clause 26(2). This is a narrow but important point for these quite vocal minority charities, and I hope that in due course, perhaps by writing to us, my noble and learned friend will put on record whether these people’s fears are groundless.

[Lord Phillips of Sudbury]

It may help my noble friend to know that, in the most recent guidance put out by the Charities Commission, entitled Charities, Elections and Referendums, there is quite a large section on public meetings and who is invited to them. It is profoundly commonsensical, so he will have some reassurance. It will not, of course, apply to non-charitable NGOs, but at least it applies to charities.

[Lord Hodgson of Astley Abbotts]

I am grateful to my noble friend. Of course, we are now talking about the Charity Commission: the question is, will the advice from the Charity Commission and that from the Electoral Commission be joined up? This is an issue which we shall come back to later, with amendments. I do not doubt what my noble friend has said, but the heart of the problem is the confusion about whether the thinking is joined up and what might fall through the cracks between the two sets of guidance.

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

Lord Phillips of Sudbury Excerpts

Monday 16th December 2013 Lords Chamber

Moved by

[Lord Phillips of Sudbury]

160: Clause 26, page 13, line 19, at end insert—
“( ) In subsection (8)(a) after “body” insert “(except a body which is a charity)”.”

[Lord Phillips of Sudbury (LD)]

My Lords, Amendment 160 is very short and innocuous, but it is of significance in terms of its impact on the Bill in that it would remove charities from the scope of the Bill and the 2000 Act. Like everybody else, I must declare interests, which are largely to be found in the register, but I should add that I have been for 40 years a charity lawyer—if that does not sound a contradiction in terms—and have great sympathy with all those trying to get their head around the relationship here between charity law and electoral law because it is far from simple.

Thanks to the work of the Library staff, I got an insight into the debates when the 2000 Act was legislated. It is fair to say that charities got short shrift. In fact, during the passage of the 2000 Act, the awareness in the Chamber was pretty extraordinary and at no point did a clear statement on the impact on charities find its way into print. I am sure your Lordships will also have noticed that the vast majority of charities are as amazed as anyone that they have ever been part of the 2000 Act. Most of them went through the previous election in complete ignorance of that fact.

I fear that the misunderstandings that attend this Bill are not inconsiderable. I am afraid that that misunderstanding finds its way even into the Harries report, if I can so call it. I, like everybody else, greatly admire the energy and astuteness that has been put into this report and I agree with the vast bulk of it. I happen not to agree with recommendation 11, which is that charities should not be exempt from regulation. To make my point and because it is germane: recommendation 11 is preceded by three statements. The first—in favour of my amendment, so to speak—is that the commission heard evidence from charities of the “disproportionate regulatory burden” on them registering as third parties. That burden is at the heart of my wish to see charities removed from this Bill and the 2000 Act.

There are two reasons given for the recommendation about not exempting charities. Incidentally, it is fair to say that the commission itself was made up of representatives of the charities sector and the non-charity NGO sector. The first reason is that,

“the regulatory system should not be structured such that the status of being registered as a charity could be a mechanism for avoidance”.

That is a little gnomic, perhaps, but were we to agree to take charities out of the Act and this Bill, the authors of the Harries commission report decided that this would represent a mechanism for avoidance. I beg to differ. Charity law and electoral law are in all essentials the same. Being bound by charity law rather than electoral law is not a soft touch. Indeed, some charities have made the point that they are afraid of not being part of the Bill—and therefore under the aegis of the Electoral Commission—because they fear that if left to the devices of the Charity Commission alone things might get rather more brutal than they already are.

The second reason given for that recommendation is that,

“campaigning with non-charities is so central to many charities’ activities”.

That is as if to say that if charities were not part of the Bill, they would not be able as they currently are to campaign with non-charities. Again, that is completely misconceived. The position of charities vis-à-vis joint campaigning—coalition campaigning, if you want to call it that—will not be affected significantly; in fact, I could not put my finger on any single difference between being outside and inside the Bill. I repeat: charity law on its own is very severe and, as I shall explain, very similar to electoral law on this point.

--- Later in debate ---

[Lord Hardie (CB)]

My Lords, I seek clarification from the noble Lord, who is recognised as an expert in the field of charitable law. One concern that has been expressed to me is that, if charities are exempt from these provisions, there may be a means for others to use charities to avoid the measures. Could the noble Lord address that concern, which others may have? If people could be reassured on that matter, we would be with the noble Lord.

[Lord Phillips of Sudbury]

I am grateful to the noble and learned Lord, Lord Hardie, for raising that issue. It is one of two issues used by the Harries commission to justify its recommendation to keep charities in the net. But it simply does not stack up in any way. Would the noble and learned Lord give an example of where he thinks the problem that he has enunciated would be found?

[Lord Hardie]

Simply, a concern has been expressed. As the noble Lord has observed, it is referred to in the report. The noble Lord may wish to have time to reflect on the matter and come back. To my mind, if that concern could be answered, I would be reassured.

--- Later in debate ---

[Lord Phillips of Sudbury]

I think that the concern may relate to a misnomer, which is that a non-charitable NGO that wants to escape the limitations of the Bill could simply form a charity which, if charities are taken out of the Bill, would be able to do all sorts of things that it could not do as a non-charity within the Bill. There is a very simple answer to that. A charity may be the brainchild of, and have come into existence through the efforts of, a non-charitable NGO—and there are a number of non-charitable NGOs, such as Amnesty International, which have brought into being a charitable arm that does things that can properly be done by a charity and which is therefore more tax efficient to have done through a charity, because of the tax provisions attaching to charities. A number of non-charitable NGOs have a related charity—perhaps even the Countryside Commission has. Many of them do it. But the misunderstanding comes in this element. Some people think that because Amnesty and the Countryside Commission took the initiative in creating a charity, they can control it and tell the trustees to do their bidding, what to do and when to do it. But they cannot. It is a fierce rule of charity trusteeship that the trustees of any charity do not and cannot take their orders from any outside body, even one that is in that sort of relationship.

To take another example, where I, as an individual, set up a charity with funds that I provide, unless there is some express power which I retain to require the trustees to make charitable gifts as I indicate, I cannot tell them what to do. The trustees must act independently. It is a fierce and fundamental provision of charity law, precisely to protect it from prostitution by the means that I think was behind the noble and learned Lord’s question.

[Baroness Mallalieu (Lab)]

My Lords, I take issue with one or two of the matters that the noble Lord, Lord Phillips, has just raised. The commission came to the view that there should be no exemption for charities and that was based squarely on the evidence that we heard. As everyone else is doing so, perhaps I should make a full declaration of my involvement with various campaigning organisations. I am president of the Countryside Alliance and president of the Horse Trust; one is a charity and one is not. I am a member of the National Trust, the RSPCA and the Humane Slaughter Association and I am a supporter—whatever that may mean at the end of this Bill’s progress—of the Stop HS2 campaign. There may be others, but I cannot, at the moment, remember them.

[Lord Phillips of Sudbury]

I am so sorry to interrupt the noble Baroness so early in her speech, but it is directly germane to her first point. I think she said that the Charity Commission came to the conclusion that charities should not be exempt.

[Baroness Mallalieu]

I was not referring to the Charity Commission; I was referring to commission of the noble and right reverend Lord, Lord Harries. I am afraid this had led to some confusion. I noticed someone else fell into the same error. If I did, I apologise. Except for those who have put their names to the amendment on the Marshalled List—and no doubt there will be others who will speak—I am not aware of anyone among those to whom we have already spoken, who shares the view of the noble Lord, Lord Phillips. Not one of the charities which came and gave evidence before us asked for there to be an exemption. Nor, as far as I am aware, does the Electoral Commission suggest that it is a good idea. I am not certain about the view of the Charity Commission, but my understanding is that it does not seek it either. As I understand it, this is because it is generally felt that transparency in the way people campaign during elections should run right across the board, for charitable and non-charitable campaigners. The spending limits, which are a key difference, should be the same across the board. No charity asked to be exempt, but we did hear evidence from some which felt that, if they were exempted, some charities would bring others into disrepute, and that it was a possible route for avoidance.

The argument of the noble Lord, Lord Phillips, is predicated, I think, on a belief that the guidance given by the Charity Commission at present works well—and he knows a great deal more about charity law than I do. That was not entirely my understanding of the evidence that we heard, and there has been concern that it has not always been rigorously enforced in this area. It is, perhaps, not surprising, given the number of registered charities. I think there are something like 130,000; he will know the figure better than I do. Indeed, there have been a number of public complaints about charities and how they have campaigned recently. It was for that reason particularly that I drew attention to my involvement with the Countryside Alliance.

It seems to me that there must be equality across the board, not only with obvious transparency, but with the way in which people are permitted to campaign. If the situation were—as the noble Lord, Lord Phillips, would wish it—that non-charities continued to be regulated under the Bill as amended and charities were removed, there could be two organisations campaigning on precisely the same issue, but bound in different ways by different forms of regulation. There could be an argument during an election period, for example on hunting, which has already raised its head a number of times in this debate. This would have the Countryside Alliance as a non-charity, restricted in a variety of ways, required probably to register as a result of whatever the new limits might be, to observe strict spending limits, and with no regulatory burden. Whereas the League Against Cruel Sports, which is a charity, would have no spending limits and would not have to put in the sort of rather onerous reports that are required otherwise. This is a cross-party issue which is seen by some as being politicised. There may well be complaints about it.

My noble friend Lord Gardiner—I call him my noble friend even though he sits opposite because he is from the “barricades” days—has tried to reassure us that the Countryside Alliance would not be caught by this measure. However, I am not so sure. We wait for that matter to be tested or, I hope, clarified as the Bill progresses. The noble Lord, Lord Phillips, says that it is wrong for one body to be doubly regulated, but he is overlooking the fact that charities are in a privileged position in many ways. They have a great many advantages and it is right that they should be regulated not just during election periods but all the time so that they do not infringe the rules. As I say, whether that is enforced is a matter of considerable controversy. Surely the Bill is about the transparency of those engaged in campaigning at election times. It is not a Bill about charities—that is something quite separate. There should be a level playing field and the public should be entitled to know what is being spent and by whom, whether the body in question is a charity or not. Therefore, although I have enormous sympathy with what the noble Lord says, and I share his concern that charities are very worried about the Bill, so are NGOs, and for precisely the same reasons.

[Lord Phillips of Sudbury]

The noble Baroness refers to a level playing field between charities and non-charity NGOs. However, there is no level playing field because non-charity NGOs can politick any way they like until the cows come home, whereas charities cannot.

[Baroness Mallalieu]

The noble Lord is correct on the face of it but, in reality, when one looks at some of the forms of campaigning that have taken place in recent years, it is very difficult to discern a difference between the two. The two organisations to which I referred earlier are a case in point. If the charity guidance—CC9—and the appendix to which the noble Lord referred were enforced rigorously, and the Charity Commission had the means to do that, perhaps I would take a different view. However, given that the Charity Commission cannot possibly have a handle on 130,000 charities during an election period, it seems to me important that there should be one rule that applies to all.

--- Later in debate ---

[Lord Harries of Pentregarth]

I absolutely agree that it is right to take precautionary steps, but I am sure that the noble Baroness would also agree that we must ensure that they are not disproportionate. The main complaint at the moment by charities and other campaigning groups is that this legislation is grossly disproportionate in the way that it bears upon them—I see the noble Baroness nodding her head.

I also have the utmost respect for the noble Lord, Lord Phillips, who is the leading charity lawyer in the country. But I have to agree with the points made by the noble Lord, Lord Hodgson. Perhaps I can approach the argument from another way. I carefully read CC9, which is the Charity Commission guidance. I also read the additional guidance that it provides for election campaigns. It makes it quite clear that charities are allowed to politically campaign. That is absolutely crystal clear. But as the noble Lord made abundantly clear, it is not always easy to draw a distinction between political campaigning in general and political campaigning that might be interpreted as supporting a particular party.

The noble Lord drew his hand across and said that there was a kind of hazy line. Does that not lead to the conclusion that the noble Lord, Lord Hodgson, made: namely, that if charities were taken out, they would have to have their own separate regime, employ extra staff, and keep in day-by-day contact with the Electoral Commission to make sure that their guidance agreed with the guidance of the commission? Would that not be a waste of resources? If charities are in fact in the same position as other groups, would it not be better for them all to be under the same regime?

I absolutely agree that there is a major difference and that charities cannot have political campaigning as their prime purpose. That is absolutely right. If the suggestion of the noble and learned Lord, Lord Hardie, about the definition of political expenses were accepted, of course charities could come out—but as long as they are allowed to politically campaign, that campaigning could be interpreted as supporting a political party or candidate.

[Lord Phillips of Sudbury]

Does the noble and right reverend Lord not agree that it is one thing politically to campaign—which is what charities can do—but another to do that in a partisan way? They cannot do that. That is a huge and fundamental difference between them and non-charitable NGOs.

[Lord Harries of Pentregarth]

I could not agree more, but as the noble Lord made clear, the difference between the two is sometimes a bit hazy and judgments have to be made as to when a particular charity has gone over the line.

[Baroness Lister of Burtersett (Lab)]

My Lords, like the noble Baroness, Lady Williams, I speak as a non-lawyer. Indeed, my background was originally in the charitable sector; I was the director of the Child Poverty Action Group and worked there for eight years, and now I am its honorary president. I also have links with non-charitable NGOs.

The noble Baroness talked about the political and legal aspects of this. While I am sure that the noble Lord, Lord Phillips, has tabled this amendment from the very best of motives, there is a danger of it being seen as the politics of divide and rule. The two things that strike me are, first, that charities themselves are not asking to be exempted. Surely that must count for something. The noble Lord said that charities are worried. Yes, they are worried, but they do not want to be exempt.

[Lord Phillips of Sudbury]

My Lords, I am most grateful to the noble Baroness and I am sorry to interrupt so often, but I am being challenged. The noble Baroness, Lady Mallalieu, said that the charities she has talked to do not want to be exempted. All I can say is that the overwhelming majority of those I have been speaking to, and indeed know of because perforce I know a vast number of charities, want exemption. Perhaps I can take as examples the Charities Aid Foundation which only has charities as members or the Directory of Social Change which only has charities as members as compared with, say, the NCVO, which has both. The organisations I have mentioned are keen for charities to be exempt for all the reasons I have tried to explain. The impression must not be left tonight that charities somehow want to be kept in this Bill. My experience is quite the reverse.

[Baroness Lister of Burtersett]

I do not have that evidence and no charity has written to me asking to be exempt, but there may be other noble Lords who can act as the referee in this dispute.

A point which has not been made yet is that the Electoral Commission has said explicitly that it does not support this amendment, and surely that must count for something. The noble Lord, Lord Hodgson, talked about what have been very seductive arguments, but I say to the Minister that I hope he will not listen to the siren voices of his noble friends.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, I thank my noble friend Lord Phillips of Sudbury for introducing this debate, which has been very interesting. Different views have been expressed. The noble Lord, Lord Low, said that charities do not speak with one voice on this matter, and that confirms my experience from having engaged with charities, admittedly not as extensively as my noble friend Lord Wallace of Saltaire. I have heard different views expressed about whether there should be an exemption for charities. Therefore, it is important that the arguments that have been put forward on both sides are given proper examination. My noble friend’s amendment would amend Clause 26 so that charities were excluded from the regulatory regime governing controlled expenditure for third parties. At present, under charity law, charities are organisations which must be established for charitable purposes only and which are for the public benefit. An organisation will not be charitable if—as my noble friend pointed out—it engages in partisan political activity.

Campaigning and political activity can be legitimate and valuable activities for charities to undertake. However, they must be undertaken by a charity only in the context of supporting the delivery of its charitable purposes. As we have heard, the Charity Commission produces comprehensive guidance—CC9—for charities on campaigning and political activity. However, the Charity Commission also acknowledges that there may be circumstances in which charities may legitimately operate within the regulatory regime established by PPERA 2000, even if their campaigns remain within the rules on party political activities by charities.

When the Bill was in the other place, the Electoral Commission highlighted a situation in its briefing. If a charity distributes material to the public that highlights the views of candidates from different parties on issues related to the charity’s objectives, this may in some circumstances reasonably be regarded as intended to promote the election of those candidates and, as such, would require compliance with the rules in PPERA. That echoes our earlier debate about when what would not be registrable becomes registrable. In such cases, Parliament decided through the passing of the 2000 Act that such activity should be regulated as it could potentially influence electors during an election. Indeed, Parliament chose then—as indeed we replicate in this Bill after amendment in the other place—to go down the road of an objective test. It may well be that it is not a subjective thing by the charity but seen objectively it could fall within the provisions set out in the Bill.

I find some of the arguments against difficult. The noble Baroness, Lady Pitkeathley—who is now in the Chair, so am I allowed to say this?—in a point picked up by my noble friend Lord Tyler, seemed to suggest that the limits on charities would be much more flexible. They would not be as tight as they would be on non-charity third party participants. Indeed, I think that was reflected in the opening comments made by the noble Baroness, Lady Hayter, when she seemed to suggest all the things that Beatrice Webb could have done if she had registered herself as a charity and that none of these things would have been available had she not been a charity.

As my noble friend Lord Phillips said, charities are not allowed to engage in partisan politics and charity law is pretty strict. Trustees of charities are only too well aware of the limitations. Sometimes I got the impression during the debate that we were comparing a free for all—if you registered as a charity—with the registration and regulation of controlled expenditure that would apply to third parties that are not charities under the provisions of this Bill. I do not think that is a proper comparison. That is why I think there is a genuine dilemma, as my noble friend said.

The Electoral Commission is clear that charities should not be exempt from the PPERA regime. That point was made clear by the noble and right reverend Lord, Lord Harries. The position has been endorsed by the Commission on Civil Society and Democratic Engagement which states in its report that,

“it is the Commission’s view that it is right that charities are not excluded from within this legislation, and we believe the Government’s approach to distinguish by activity rather than by type of organisations is correct”.

The Government have taken the view that the nature of the PPERA test and the constraints of charity law will inevitably mean that the circumstances in which charities are caught by the PPERA rules will be rare.

There have been some important points made that I want to reflect on as I do not think it is as quite clear cut. There are clear views on why Parliament did what it did in 2000, and why that has been endorsed by the Electoral Commission and by the commission chaired by the noble and right reverend Lord, Lord Harries. The Government should be cautious about taking as significant a step as exempting charities from the regulatory regime. We would want to see more evidence and would pray for reassurance that this would not create a loophole. There are issues about—and this is an unfortunate expression that has been used in some discussions I have had—a “sliver” of activity, which could take charities which are abiding by charity law into an area which would nevertheless be regulated under the PPERA regime. I would want to be satisfied that it would not lead to avoidance, although I certainly hear the strong arguments asking whether there is any point in setting up a charitable arm which is going to be restricted by charity law. However, it is clearly an issue. It was raised by the Electoral Commission, the Commission on Civil Society and others, and was queried by the noble and learned Lord, Lord Hardie.

The noble Baroness, Lady Mallalieu, raised a point that was mentioned when I talked to people involved in the charitable sector in Scotland at the end of last week. Although charities could have their activities restricted because of charity law if they engaged in any activities which could otherwise have taken them into PPERA regulation, what we do not have is transparency. Transparency is an important issue, which I would ask my noble friend to reflect upon. I am more than happy to have these discussions.

The points made by my noble friend Lord Hodgson on important operational issues are why I would not rush forward to say that we will accept an exemption. However, there are concerns about double-regulation which have been expressed to me, and many will sympathise with those who have the potential to be regulated by both the Electoral Commission and the Charity Commission.

I thank my noble friend for raising this issue. The position which has been taken up until now, as endorsed by the Electoral Commission, has commended itself to the Government. However, some important challenges to that position have been raised and I would therefore not wish to shut the door on further consideration of it. I would be happy to engage not only with my noble friend in picking up some of these points, but also with others who clearly take a strong view that charities should be in the same position as non-charitable organisations in respect of the application of this part of the Bill.

Finally—I know that my noble friend will make the point in his wind-up if I do not respond to it in advance—he said, and I know from previous conversations, that the Charity Commission should perhaps be given more money and resources. This is not the debate, nor am I the Minister with any responsibility, to commit more funds to do that. I hope that I am not misrepresenting my noble friend Lord Hodgson, who I think was making the point that if more resources were going, there were perhaps greater priorities than undertaking a task on electoral regulation which is already done by the Electoral Commission. That is a point, and one I am sure that my noble friend Lord Phillips will articulate when he comes to wind up. In the mean time, I ask him to withdraw his amendment.

[Lord Phillips of Sudbury]

My Lords, I thank everybody who has taken part in this debate. It has swayed to and fro in the best traditions and everybody has made useful points. I have not the time to cover all the offerings, and your Lordships would not want me to at 10.23 pm. However, one or two things I must just say.

The first is to take up the point my noble friend made at the end of his speech, concerning the role of the Charity Commission. My noble friend Lord Hodgson spoke very forcibly about the disparity between the theory of charity law and the actuality of oversight. I accept that, and there is no shadow of doubt in my mind but that if my amendment is accepted on Report, it must and can only be on the basis that the Charity Commission will do a more thorough job than it currently does. I fully accept that, but I am hopeful that that is something which would be very much in the Government’s mind, because if we take a third of a million charities out of the regulatory oversight of the Electoral Commission, we can make major savings, part of which can be deployed in beefing up the Charity Commission’s efforts.

Having said that—forgive me if I bang home the point that I have lived in this sector, so to speak, for 40 years—in my experience there is astonishingly little abuse of charity law. There is an astonishingly high level of public trust as well, and there is a deep revulsion in the sector of trying to play games with it, let alone corrupting it. I emphasise, however, that that does not take away from the point I started by making: there needs to be better enforcement.

The noble Baroness, Lady Hayter, gave an example whereby, I think she said, you could have a biased charity that concentrated its efforts in certain constituencies in order to achieve a certain outcome. That would not be allowed under charity law. It is not that daft. It looks at the whole picture and the substance of what a charity does and if a charity pretended not to be engaged in partisan pursuits but actually was—by, for example, putting its effort only into constituencies where the candidate that it wanted to win was holding a view that it was pushing—that would be wrong and illegal. I am not saying that it would always be picked up by the Charity Commission, but people are on the qui vive these days. I think noble Lords will agree that complaints to the Charity Commission are made regularly and without inhibition.

[Baroness Hayter of Kentish Town]

The point is not to support the candidate in order to get that candidate elected but to put pressure, usually, on a Minister to have those views heard, be it about drink-driving or something else. That is why, believe me, we do not do this stuff without the Charity Commission okaying it, because it is not to influence how people vote but to use the fact that the Minister is in that particular constituency to go there. It is not to get people to vote, so it is acceptable.

[Lord Phillips of Sudbury]

I am sorry if I misunderstood. Perhaps we can talk about this outside the Chamber, because this is not the place or the time to go into it in any more detail. All I am saying, and I will assert it without equivocation, is that the law is clear. I say that it is clear, but the law is there and it is well used and old and practical. The Charity Commission needs more resources but the amount of abuse is minuscule in relation to the size of the sector and I remain utterly opposed to lumbering this sector, of all sectors, with double regulation.

The non-charitable NGO sector includes some wonderful organisations but also some very shady ones. There are, I am afraid, a number of non-charitable NGOs that are used for violent political purposes. Money is poured into them, either for commercial or extreme political purposes, and there is nothing to stop them, as things stand. We have quite different categories to deal with and that is why it is entirely right, sensible and practical to have separate categories in terms of regulation. To lumber the charity sector with double regulation should be the last of our intentions. That is my fundamental point and on that note I beg leave to withdraw the amendment.

Amendment 160 withdrawn.

Civil Procedure (Amendment No. 5) Rules 2013

Lord Phillips of Sudbury Excerpts

Monday 29th July 2013 Lords Chamber

[Lord Bew]

My Lords, I will speak only to the Northern Ireland section of the Motions before the House tonight. I will ask the Minister two questions in the spirit of the remarks that have been made, particularly by my noble friend Lord Pannick, not in opposition in principle to the Minister’s proposals this evening but with a sense that we ought to proceed with great care, caution and circumspection in what is undoubtedly a significant change.

The Minister, in his introductory remarks, referred to consultation between the Lord Chancellor and the Lord Chief Justice of Northern Ireland, and I was delighted to hear that. However, there is also a question in my mind as to whether there was any consultation with the Northern Ireland Human Rights Commission, either by the Lord Chief Justice or through the Lord Chancellor’s office, and just how wide that consultation actually went in Northern Ireland.

My second question very specifically relates to the special advocates, and to vetting procedures for special advocates in Northern Ireland, where I think it is a more difficult matter perhaps than in the rest of the United Kingdom. When the Rules of the Supreme Court (Northern Ireland) (Amendment No. 3) came before this House at the end of January 2009, I asked the noble Lord, Lord Bach, who was then the Minister, about the vetting of special advocates in Northern Ireland. He replied that there was a high level of vetting. He referred to credit checks, checks on criminal convictions and so on—similar to those for a civil servant. The documents that I have received so far, either in that case or in the case of the Motions before the House tonight, refer not at all to the special advocates and the level of vetting. I just want reassurance that it is still regarded as a high level of vetting, given the sensitivity of the matters, which inevitably come under the purview of the special advocates, and I ask whether, in the difficult circumstances of Northern Ireland, that level of vetting is, in fact, sufficiently high.

[Lord Phillips of Sudbury]

My Lords, I will make one brief comment. I start by commending my noble and learned friend the Minister for the way in which he has dealt with this extremely complex set of issues and for the way in which he opened the debate tonight. It is commonplace to observe that closed material procedures touch on matters as sensitive, in terms of the fundamentals of our system, as anyone can imagine. Having heard the extremely thoughtful contributions of fellow Peers tonight, it occurs to me that, if it were at all possible, it would be advisable—if I can put it that way to the Minister—to take away the issues that have been raised here tonight rather than push them through.

There are only a dozen of us in the House at this time. We have heard some extremely thought-provoking points made by the noble Lord, Lord Beecham. The noble Lord, Lord Pannick, referred to the five Neuberger principles—if I may call them that—which all require, I think, considerable further thought. The noble and learned Lord, Lord Goldsmith, raised the issue of potential vetting, so to speak, of applications by the Attorney-General of the day. I hope my noble friend the Minister will not have any fear of going against precedent if he considers it advisable to postpone passing these rules tonight so that the matter can be further considered and brought back immediately after the Recess, because the issues could scarcely be more important.

Marriage (Same Sex Couples) Bill

Lord Phillips of Sudbury Excerpts

Monday 8th July 2013 Lords Chamber

[Lord Elystan-Morgan]

My Lords, I respectfully disagree with the noble Lord, Lord Deben, who made an excellent speech. Although I agree with his basic submission, I disagree with his argument that this is a wrecking amendment. It is not a wrecking amendment, but it is an amendment that, if carried, could defeat the whole purpose and objective of this legislation. It is on that basis that we should look at it this afternoon.

The issue is important but simple: whether you elongate the institution of marriage to include same-sex marriage as one indivisible institution, or draw a dividing line through it—a frontier line that will create two categories of marriage, one a gold standard and one a standard of baser metal. That is the issue.

There are three arguments that can be put very briefly in favour of opposing the amendment and accepting the elongated institution argument. First, marriage has passed through many different phases, definitions and concepts in the past 200 years. Before the 1836 legislation, all people who wanted to get lawfully married had to be married in the Church of England. Many, like my forebears, found that extremely distasteful but that was it—it was a fait accompli. Before the Married Women’s Property Act 1882, a married woman could not hold property; it became her husband’s upon marriage. All that she could cling to was what was called her paraphernalia. That changed everything. Before 1991, where two persons were married and no separation order had been made by the courts, a man could rape his wife and she would have no redress. Do you think that did not change the institution immensely? One may point to a number of other phenomena that have in total, and in many cases individually, changed the situation fundamentally. That is the first argument: there have been changes in the law that have fundamentally metamorphosed the whole concept of marriage.

Secondly—I say this with very great diffidence as a Welsh Presbyterian—there have been changes in the spiritual world as well. The Book of Common Prayer justifies marriage in three ways: first, for the procreation of children; secondly, so that the temptations of adultery and fornication should be removed; and thirdly, so that there should be a lifelong, devoted, loving partnership between two people. As far as the first is concerned, you might say that people who are beyond child-bearing age are logically in breach of that precept, but nobody in his or her senses would argue that. However, I know many young people who, for professional reasons, have married on the basis that they will not have children. That is the clearest understanding and agreement between them. Do you say that their marriage should be placed in some hermetically sealed compartment on that account? I would not argue that. Essentially, is one not justified, to a large extent, in saying that the essence of marriage today for so many people is that lifelong commitment of love, affection and loyalty? If that be the case, one can say, yes, in the spiritual world, too, there have been massive changes that have been accepted by society.

There is a third justification. Many Peers have already spoken of the days before 1967, when homosexuality was a very grave offence. I remember well over 60 years ago, when I was a young law student, going along to the assizes and seeing the local vicar, the nonconformist minister, the accountant, the solicitor and many similar people of high standing in society, all being sent to prison for four or five years for what we would today call “lavatory cases”. I remember thinking, “There must be some better way of dealing with this problem”.

I have argued with myself a great deal over the past few weeks as to where I stand in relation to this matter. I have asked myself whether this change—the concept of single-sex marriage, which is of course a massive change—is of such magnitude as to demean and in some way unsettle and undermine the concept of marriage. I have asked myself whether it any way demeans or changes my own marriage. I was supremely happily married for 48 years to a very splendid lady, who died six years ago. I am sure that if she were alive today, she would say to me, “Yes, there is a third argument: the argument of reasonableness and tolerance”.

As a community we have treated these people abominably, in a way that is a disgrace to our religion and to so many things that we believed we stood for as a community. Now we have a chance to make up for that, and we will do exactly that by elongating and not dividing.

[Lord Phillips of Sudbury]

My Lords, I apologise to my noble and learned friend Lord Mackay of Clashfern. British Rail prevented me from being here when he opened this debate. However, I have had the advantage of long discussion with him concerning his reasons for putting forward the amendment and I support it.

This is not an easy debate. I am sure that there are many in the House now who sway this way and that. The issues are highly complex and diverse and we have heard some outstanding speeches today. However, I disagree totally with one of the things that my noble friend Lord Fowler said when he put it to the House that if we passed this amendment it would add directly to homophobia in this country. If I was even a little in agreement with him on that, I would not be standing and speaking here. However difficult it is to assess the reactions of the great people of this country to matters such as this, far from increasing homophobia, Amendment 1 could ease the passage and consequences of this profoundly important measure for the millions of our decent, not prejudiced and not homophobic countrymen who currently believe that we may be foisting on them what they would call an untruth—they might call it dishonest or a public relations exercise.

Whether we like it or not, millions of our decent fellow-citizens will agree totally about same-sex couples having the same esteem, love and life-long commitment, and so on, but, as has been said many times, and so one need not elaborate on it, they believe that unions between same-sex couples and opposite-sex couples are different and that they have profoundly different potential consequences. To say that many opposite-sex couples are disabled, too old or disinclined to procreate is not an answer to the fundamental factual and real difference. That is where, I repeat, millions of our countrymen sit at this time. The noble Lord, Lord Pannick, talked about an inferior status, but they do not want to create anything of the sort. Nobody is interested in belittling the commitments made by homosexuals; there are a few, but, I maintain, not many. However, what they do say is, “Why are we pretending that it is exactly the same when it is profoundly different in one particular?” Why not use the word “marriage”, since that is the important thing, and then have the qualification? It is not even as though the qualification is very novel: it is in the Title of the Bill as we sit here. I believe that in time—and I do not think that it will be a long time—people will concentrate on the word “marriage” and the bracketed bit, frankly, will fade into lesser and lesser significance as the public mind progresses.

One might ask, “Why have that wording?” I actually believe—this is the nub of it—that we will ease the passage of this important measure if we put Amendment 1 in the Bill. We will salve the present discontent that so many people feel about the Bill as it stands. That is why I shall vote for Amendment 1.

[Baroness Howarth of Breckland]

Before the noble Lord sits down, does he not think that that has already been achieved by the lock? I am always interested when the right reverend Prelates join in the debate. The only other intervention I have made in these debates was to ask the most reverend Primate the Archbishop of York whether, if the Bill goes through, the Church of England will marry gay couples. We know the answer to that. Those people who object already have a huge lock—I am not sure that I am happy about that in itself—and that holds enough.

[Lord Phillips of Sudbury]

The noble Baroness raises an interesting point. The quadruple lock is important to people of religious faith. However, I am not talking just about people of religious faith. The current objection goes way beyond that category.

[Lord Winston]

Is the noble Lord aware of the research on children who are being raised by people who are gay—either lesbian or male homosexual? There is now a large and incontrovertible body of research evidence—particularly from Professor Golombok of the University of Cambridge—which shows that on average such children do better than children who are born in the normal way of current marriage. That is an important point as several noble Lords have raised the issue of procreation. We have to understand that there is no evidence at all that children are worse off as a result of having parents who are in a gay partnership.

--- Later in debate ---

[Baroness Northover]

I remind noble Lords that we are at Report stage and that interventions, if they must happen, should be very brief—namely, a quick question of clarification rather than, in effect, another speech. I also remind my noble friend that those who speak in each debate should be here at the beginning. I realise that there are problems with trains. Nevertheless, there are a lot of noble Lords seeking to get in.

[Lord Phillips of Sudbury]

If I may answer briefly the noble Lord, Lord Winston—

[Noble Lords]

No.

Justice and Security Bill [HL]

Lord Phillips of Sudbury Excerpts

Tuesday 26th March 2013 Lords Chamber

[Baroness Manningham-Buller]

No, but I am saying that if the amendment balances national security versus open justice, however much my former colleagues might seek to reassure human sources that they will be protected and the courts rely on that protection, I fear that they will be apprehensive and will not be willing to talk to us. That is already an issue. That is what I am talking about—not whether the courts and judges have mishandled things. I am not suggesting that for one minute.

Thirdly and finally, I wish to pick up the point made by my noble and learned friend Lord Brown about national security not being defined. If this material were such that it could be redacted or gisted, or if people could give evidence anonymously, we would not need this Bill. To use the words of David Anderson, who is new to this subject and as the independent reviewer of terrorism has looked at all this, these cases are saturated with it and, if it is redacted to that degree, there is nothing to put into the court.

I shall not say any more this evening but I remind the House of the potential damage that we have to continue to guard against.

[Lord Phillips of Sudbury]

My Lords, I fear that I have to disagree with two eminent judges—the noble and learned Lords, Lord Woolf and Lord Mackay of Clashfern. The noble and learned Lord, Lord Woolf, talked about the judges being in the driving seat and the noble and learned Lord, Lord Mackay, said that under the amendments to the Bill huge discretions are given to judges which we can safely leave in their hands. I agree with both, but the car of the noble and learned Lord, Lord Woolf, and the discretions of the noble and learned Lord, Lord Mackay, are bounded by the Bill we are debating. I believe that Amendments 6A and 6B extend further, although not radically, the protections that I consider necessary in such an important incursion into the ancient liberty of open justice.

Although the Minister made an exemplary opening speech in trying to explain this vast set of important amendments, I am bound to say that where the Government are trenching on open justice, the onus is on them to prove their case beyond peradventure. I do not think that that has been done. The very phrase, “closed material procedures” is a sort of euphemism. Out there people talk of secret courts and secret justice and, of course, they are right. We have had some wonderful speeches tonight, but I was particularly impressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who has behind him possibly a unique body of experience among those in the Chamber at this time through his work as a reviewer under RIPA. I think that I am quoting him rightly. He said that the important and salutary message that we need to send out from this House is one that persuades the country that while doing our difficult duty, and my word, it is difficult to strike the balance, we are none the less—if there is erring on one side or the other—erring on the side of open justice.

I shall finish by adding to the point that the noble and learned Lord made, and the points made by the noble Baronesses, Lady Berridge and Lady Kennedy of The Shaws. One cannot look at issues of extreme violence in some sort of academic vacuum. There is a propensity to violence among our fellow citizens and to extremism of different kinds—the kinds that the security services have to deal with, reminding us how enormously difficult their task is. That does not come out of a clear blue sky; it is the product of social and political contexts within which they live and of which they have experience. Although it is difficult to get one’s hands round this, if we can show that we have gone to every possible, sensible length to minimise trespassing on the principle of open justice, that will help to send out a message in relation to this Bill, which is being closely followed around the country. It will send out the best message, which is least likely to give cause in places we will never go for an increase in the extremism which is the very devil we are trying to guard against.

Amendment 6A, the widely balancing principle, and Amendment 6B, the exhaustion of all other remedies, so to speak, are significant improvements to a Bill that has been hugely improved by the Government, but which would benefit from these further two refinements.

[Baroness Butler-Sloss]

My Lords, I ought to declare that my daughter is chairman of Liberty, but I fear that she will be very disappointed with me this evening since I do not consider that Amendments 6A or 6B are necessary. Like many others in this House, during the passage of this Bill I have been extremely concerned about whether it was appropriate and whether it went too far. So many have spoken quite emotionally on the concept of closed courts and how inappropriate they are. I think that the Government’s original proposals were unacceptable, as did many others. Ministers have made enormous steps towards great improvements, and as the noble and learned Lord, Lord Woolf, said, they are to be congratulated on those changes. They have now put the judge in the driving seat. The judge now has control.

Proposed new subsection (1D) to Clause 6 refers to the “second condition”, about which not very much has been said. The second condition has to be approved by the court and,

“in the interests of the fair and effective administration of justice in the proceedings to make a declaration”.

One need only remember what the president of the Supreme Court said about the inappropriateness of making such a declaration in other circumstances, unless it is actually necessary and appropriate to see that judges really ought to be trusted not to close a court until they absolutely have to do so.

As we can tell from the various speeches this evening, this has become a very sensitive and somewhat emotive issue. However, there are other circumstances in which judges see evidence that almost nobody else is allowed to see. In a totally different area, as an adoption judge, I would see reports from the guardian and from the adoption agency, usually the social worker, that the birth parents and very often the adopters were not allowed to see. Like other adoption judges in the past—and I assume that the law has not changed on this—I ended up making decisions on evidence that was not shown to part of the court; that is, the most important people, the adopters and the birth parents. It is not unknown for evidence to be provided to judges that cannot be seen by parties, although national security is, of course, in a very special situation.

I respectfully agree with every word said by the noble and learned Lord, Lord Woolf. I had gone the other way at an earlier stage but I have now changed my mind; I am entirely satisfied by this Bill. I was discussing it with the noble and gallant Lord, Lord Stirrup, who cannot be here this evening. I agree with him that one has to strike a balance between these very difficult situations. He and I agree that balance is now reached by this Government and I will support the Government on this.

Justice and Security Bill [HL]

Lord Phillips of Sudbury Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Judd]

My Lords, I should like to add a word of tribute to the Joint Committee on Human Rights for the thoroughness and courage of its work, and I pay tribute to those who put these amendments forward.

I am not a lawyer, but what concerns me in all this is what lies behind the issues we are discussing—we are trying to protect a society that is worth having. Central to the society that is worth protecting in the United Kingdom, as I understand it, has been the evolution of the cause of justice and fairness in our legal system. That has been the central pillar of what has made Britain a country in which it is good to live. Alongside this, of course, has been the independence of the judiciary; and the judge has a key role—not a role that is perceived by just those in the know, but one that can be widely seen as the key role—in ensuring that this happens.

The first thing I will say is that I find myself troubled by the fact that if we compare ourselves now with how we were 20 years ago, the quality of justice in our society is not as good; there has been an erosion. Of course I understand the acute and sinister pressures behind this trend. We are up against sinister, ruthless techniques and people. I worry that we are giving them the victory and legislating to underpin that victory by taking steps that may diminish the quality of our justice.

Let us look for a moment at the kind of issues that are being considered in the cases about which we are worried. They include torture and human rights, which are sensitive and emotive matters. If it becomes a growing concern in society that things are not as they should be in the administration of justice in these areas, and if it should be thought that the Government and Executive want to conceal things that happened which should not have happened, that will play into the hands of the extremists who are trying to build anxiety, doubt and instability into our society.

This is the very time that we must stand steadfast. Of course I am not suggesting—it would be madness to do so—that there are no matters that simply cannot be revealed in a court case. However, we must not regard this as something that on balance is right. If we are going to diminish the normal standards that we expect and see as central to our justice system, it must be an absolute last resort because we have to do it, and it should be confined to the narrowest possible areas of control. The amendments in this group are a step towards resisting a further erosion of our system of justice.

[Lord Phillips of Sudbury]

My Lords, I accept that my noble friend the Minister has an acutely difficult task in dealing with this part of the Bill and with these amendments. I do not think that anybody in this House pretends otherwise. Balancing national security against individual liberty and due process is judgment-of-Solomon stuff. However, I concur with the virtually unanimous voice of those who have said that there is a want of balance and proportionality in the arrangements in this part of the Bill.

In particular, I support Amendment 36. I will not repeat what others said very well, but I will draw the attention of the House—and perhaps of some beyond the House—to a very plangent example of the failure of the Bill to balance as it should the two competing issues. As was explained, Clause 6 requires a judge—it is not discretionary—to grant an application for a closed material procedure if,

“disclosure would be damaging to the interests of national security”.

There is no qualification of “damaging”. There is no talk of “substantial” or “significant” damage. As it stands, a judge would have to grant such an application if the damage were marginal or even trivial. That is why it is essential to agree Amendment 36—and Amendment 37 with it—and some other amendments in the group that would ensure that no judge was put in the difficult, highly undesirable circumstance of having to grant a closed material proceedings application in circumstances that, on any common-sense basis, would not be warrantable.

[Lord Glentoran]

My Lords, I will step out of the courtroom and into the street. Most of my life I have lived close to terrorism or among it. I have lived close to those in the secret services and many in the police. One thing that we must not vote for tonight is a reduction in the abilities of the public prosecution services, lawyers and, more importantly, police, who to my personal knowledge are extremely frustrated, certainly in Northern Ireland and in other areas that I know of, that they cannot get convictions when they know that people are guilty. They cannot get the evidence into court because they are protecting our secret services—our police and undercover agents. Throughout the problems in Northern Ireland which I have known, and throughout some of the other ones which I have known in my lifetime, those people have done a wonderful, brave job. They must not be put at risk on account of the human rights requirements.

--- Later in debate ---

[Lord Phillips of Sudbury]

My Lords, Amendment 56A in this group is tabled in my name. I am afraid that it is a manuscript amendment and I hope that noble Lords have got it, but for those who were not given a copy when they came in, it is an addition to Clause 10 which is about the general provisions under Section 6 proceedings. It requires that the:

“Rules of court under subsection (2) shall only diverge from rules of court pertaining to proceedings outside the scope of this Act to the extent necessary to prevent disclosures of information damaging to the interests of national security”.

The whole point of the amendment is to put some constraint on the otherwise unacceptable breadth of the provisions in Clause 10(2) which allow rules of court to be made. Perhaps I may briefly give noble Lords a gist of the breadth of this provision-making power. The first set out in paragraph (a) is,

“about the mode of proof and about evidence in the proceedings”.

There are no qualifications, there is no limitation, guidance or definition, so they can just make rules about the mode of proof and evidence in the proceedings; paragraph (b) concerns whether the proceedings shall have a hearing attached to them at all; paragraph (c) concerns whether there shall be legal representations in the proceedings; and paragraph (d) concerns whether the person against whom the proceedings are launched shall have full particulars of the reasons for the decision reached in those proceedings, and so on.

I do not understand why the Government have produced a rule-making power relating to a highly sensitive and important clause with no constraint, limitation or definition. All my amendment seeks to do is to put a lasso around what I believe are unduly wide powers. It would provide that, in effect, the only use of these powers shall be,

“to prevent disclosures of information damaging to the interests of national security”,

which is what this part of the Bill is principally all about. I have put the amendment forward in the hope that the Government will accept it or, if the wording is not to their liking, that they will undertake to bring new wording back at Third Reading.

[Lord Beecham]

My Lords, for the avoidance of doubt, I should say that the Opposition support Amendment 56. My noble friend Lady Kennedy beat me to the Public Bill Office in putting her name to it. As she and the noble Lord, Lord Pannick, have said, it is important that the press and the media generally should have notification of applications of this kind. It complements a later amendment that will require the regular reporting of the number of applications that have been made, so to some degree the two things flow together.

The manuscript amendment tabled by the noble Lord, Lord Phillips, has arrived very late in the day and, given the other excitements we have been enjoying, I confess that I personally have not given it sufficient attention. I will be interested to hear the views of the Minister if she is replying to that particular amendment in due course. I would also be interested to learn the views of the noble Lord, Lord Pannick, on it, if he is able to give them. On the face of it, the amendment seems fairly persuasive, but it has been brought forward so late that I am finding it difficult to come to a decision, although other noble Lords may find it easier to do so. But certainly so far as Amendment 56 is concerned, and indeed the original amendment in this group, the Opposition are fully supportive.

[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Lords for their remarks. I will speak generally and respond to the noble Lord, Lord Phillips. The noble Lord, Lord Hodgson, has not said anything about his amendments in this group but what I will say applies to those as well.

The Bill does not seek to change the rules in relation to civil proceedings, save where this is necessary to have a closed material procedure; we are not otherwise changing the ordinary rules in civil procedures relating to disclosure of evidence. The noble Lord, Lord Phillips, in speaking to his manuscript amendment, talked about adding a lasso. We believe that the Bill already provides a lasso. We agree with the thrust of the points he makes but do not think it is necessary to accept his amendment, because the Bill provides for the essence of this point in Clause 9, where it says that, subject to securing closed material procedures, the ordinary rules of disclosure must otherwise apply. The way that his amendment is worded may also be a potential source of confusion in that it is unclear what is meant by the word “necessary” in the amendment in a particular case. More specifically, we are already providing for the concerns that he has raised.

[Lord Phillips of Sudbury]

I apologise again to my noble friend and to the House for the lateness of this amendment. I think her argument was that Clause 9 makes my amendment redundant, but am I right in thinking that Clause 9 relates to rules of disclosure whereas Clause 10(2) relates to rules across a much wider plain, governing standards of proof, evidence, whether or not there is a hearing, legal representation and so on?

[Baroness Stowell of Beeston]

I will address that point by saying that we are not seeking to change any of the ordinary rules for civil proceedings in this Bill. The normal rules for civil proceedings apply in the same way here except for where it is necessary to change them in order for us to meet the requirements of a closed material proceeding.

[Lord Phillips of Sudbury]

The noble Baroness says that the normal rules of civil procedure apply but Clause 10(2) gives extraordinarily wide powers to make new and different rules. That is my point and that is my concern.

[Baroness Stowell of Beeston]

It is probably easier if I turn to the other points that have been made in this debate. In the course of doing so, maybe I will receive some assistance that will allow me to answer the noble Lord’s question in greater detail. As if by magic, I have been handed a note. Clause 10(2) gives powers to make rules but these are in consequence of CMPs.

I move on to the question of media reporting and the points raised by the noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy. The amendment that I have moved, which hopefully the House will accept, means that the parties to CMPs will be notified when an application has been made. In essence, the point was that this is not sufficient in terms of notifying the media. It is obviously a matter for the parties to the claim to decide whether to inform the media. This amendment will ensure that the judge notifies the parties, such that this will be disclosed in the normal proceedings of disclosure that courts make. The noble Lord is looking at me quizzically. He will know more about this than I do, but when the judge notifies the parties that there has been an application, unless it is necessary for him not to do so in the interests of national security, that will be in the public record that exists in the court, which presumably the media are monitoring at all times. This is not about withholding information from the media.

Furthermore, if the media had the right to intervene in this process, it would be necessary for them to have access to all the material so that they could judge or come to a view as to whether it should be a matter for a closed hearing or not. That would be contrary to the whole point of a closed material procedure.

--- Later in debate ---

[Lord Beecham]

Before the noble Baroness sits down, in relation to the amendment of the noble Lord, Lord Phillips, would it be a way forward for her to take that back so that it might be raised, if necessary, at Third Reading? It is very late and the Minister is in difficulty—I think that we are all in difficulty—in terms of understanding the implications of the amendment, so this may be a way through the dilemma.

[Lord Phillips of Sudbury]

I am grateful for that suggestion. I do not want to keep apologising, but I do think, if the Minister agrees, that that is the way to deal with this.

[Baroness Stowell of Beeston]

I cannot commit to anything at this stage, but what I can do is to consider the amendment outside the Chamber and certainly to have a further discussion with the noble Lord.