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

Baroness Lister of Burtersett Excerpts

Tuesday 22nd October 2013 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, like many other noble Lords I have an interest in the Bill through my involvement with a number of organisations that stand to be affected by Part 2. Moreover, I spent the first half of my working life working for the Child Poverty Action Group and am therefore very sympathetic to the concerns raised by myriad voluntary sector organisations. Part 2 is the focus of the report of the Joint Committee on Human Rights, of which I am a member, and its report lists my relevant interest. It will also be the main focus of my comments. I will first make some general remarks about process and the overarching aim of enhancing transparency.

The Political and Constitutional Reform Committee states bluntly that,

“this is an object lesson in how not to produce legislation”,

as it is informed by neither proper consultation with stakeholders nor pre-legislative scrutiny. The JCHR has protested at the,

“unnecessary speed at which the Bill is being taken”,

when there are no grounds for it being treated as emergency or fast-track legislation, as my noble friend Lady Kennedy of The Shaws has already underlined. This has impeded the committee’s ability to fulfil its scrutiny function in a timely manner, an unacceptable trend about which we had already complained in our Legislative Scrutiny Update report earlier this year.

Proper human rights scrutiny is not some optional extra to be fitted in when it suits the Government’s timetable. Indeed, as the committee points out:

“Laws that are passed following proper pre-legislative scrutiny, and after adequate timetabling for scrutiny and debate of the human rights implications of the Bills, are more likely to withstand subsequent judicial scrutiny of their human rights compatibility”.

This is particularly important with regard to the Bill because of its significance for the democratic process. The Government’s human rights memorandum to the committee accepts that Part 2 of the Bill engages the rights to freedom of expression and assembly. It acknowledges under Article 10 of the European Convention on Human Rights, that,

“political expression attracts the highest level of protection because freedom of political debate is at the heart of the creation and development of a democratic society”.

It also accepts the link with Article 11, for, as the Strasbourg court has said,

“The protection of opinions and the freedom to express them is one of the objectives of the freedom of assembly and association as enshrined in Article 11”.

We therefore now have a particular duty in this House to impress on the Government the importance of getting the Bill right.

The watchword of the Bill is “transparency”, and the overarching aim of increasing transparency in the democratic process is admirable. However, organisations which have campaigned for a statutory register argue that Part 1 of the Bill risks making lobbying less—not more—transparent. That is because it will cover only a fraction of lobbying and lobbyists and because the register will include no meaningful information on the activities of those it covers. That is about as transparent as mud. The dictionary definition of “transparent” is not just,

“able to be seen through”,

but also,

“easily detected, understood; obvious, evident”—

the very opposite of how the charitable and voluntary sector perceives Part 2. Instead, “uncertainty” and “ambiguity” are the words used to describe it. The noble Baroness, Lady Hanham, made a similar point.

The NCVO goes so far as to warn of,

“unbearable amounts of uncertainty for organisations”.

Indeed, I, too, have had an e-mail from Newcastle CVS expressing just such anxieties about what the Bill will mean for it and the local charities which it supports. As a number of organisations have warned, this uncertainty will have a “chilling effect” on legitimate campaigning at both national and constituency level at the expense of healthy democratic engagement.

Moreover, organisations such as the Association of Chief Executives of Voluntary Organisations—ACEVO—and the Quakers are fearful that small civil society groups will not be able to comply with the increased reporting requirements, which the Electoral Commission warns constitute an increase in,

“the regulatory burden for registered campaigners”.

As a result, they could be discouraged from democratic involvement in the pre-election period. Is it not odd that a Government who are so obsessed with reducing red tape for small businesses are now happy to tie up small civil society groups in red tape, as my noble friend Lady Hayter has already pointed out?

In so far as the government amendments to the Bill addressed these concerns, they are welcome. However, the widespread view conveyed to us, and based on legal advice, is that they do not go far enough. The NCVO and ACEVO both refer to problems with the existing test of controlled expenditure. These, it would appear, were manageable for many organisations within the context of the other rules that have applied, although even then, according to ACEVO, many smaller and less experienced campaigning organisations,

“were put off from pre-election campaigning activity”.

However, in the new context of the significantly expanded list of activities covered and lower spending thresholds, simply reverting to the test in the Political Parties, Elections and Referendums Act 2000 may not be enough to remove the feared chilling effect of the Bill. The JCHR has called on the Government to consider these concerns about how the existing definition will interact with key changes in the Bill. I would welcome the Minister’s response to this point.

As the Electoral Commission has advised, it is the “cumulative impact” of Part 2 on non-party campaigners that we need to scrutinise closely. It has told the Government:

“Because the Bill brings some kinds of activity into the regime for the first time … the wording of the amendments needs further consideration and testing”.

The JCHR has pointed in particular to fears about the combined impact of the much expanded list of controlled activities, the reduction in maximum spending limits and lowered registration thresholds. Furthermore, it has criticised the failure of the Government to explain satisfactorily the rationale for the change in spending limits and registration thresholds. It therefore recommends that these should remain at their present level pending further detailed work on the appropriate level, echoing the Electoral Commission’s recommendation on registration thresholds.

Others have raised worries about new constituency-level spending limits, which will add to the regulatory burden on civil society groups, and about how the new provisions could aggravate the already inhibitory effect of the existing rules regulating groups working in coalitions. All these issues need close scrutiny.

When I worked at the CPAG, I recall that the pre-election period was a crucial time for us to try to get poverty on the political agenda. It is a time for holding up to scrutiny a Government’s record on a non-partisan basis. It is a time for trying to wring commitments out of political parties and their candidates with a view to influencing not the election result but the agenda of the incoming Government, whatever their political complexion. If this kind of important work is inhibited by this Bill for fear that it will be wrongly construed as,

“intended to promote or procure the electoral success of a party or candidate”,

in the context of more stringent financial rules, as civil society fears, our democracy will be the poorer for it.

Some may give the Government the benefit of the doubt and attribute this,

“dog’s breakfast of a Bill”,

as the chair of the PCRC has called it, to cock-up rather than conspiracy. Others believe that it is a conspiracy to gag campaigners. If the Government do not want to give credence to the conspiracy theorists, mentioned by the noble Lord, Lord Hodgson, it is time that they face up to the breadth of the opposition and think again. From a human rights perspective, the JCHR concludes that the deeply unsatisfactory legislative process makes it,

“difficult to assess whether the specific measures proposed in Part 2 constitute a necessary and proportionate means of achieving the Government’s aim in order to justify any interference with free speech rights”.

As already noted, our primary recommendation, therefore, is to pause the Bill's legislative process to allow more time for proper consultation. I hope that, even at this late stage, the Government will heed our advice and that of countless others. The rights to freedom of speech and association are too important for our democracy for them to steam ahead regardless.