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

Lord Tyler Excerpts

Tuesday 21st January 2014 Lords Chamber

Moved by

[Lord Tyler]

9: Clause 28, page 16, line 38, leave out “0.05% of the total” to end of line 40 and insert “£5,000”

[Lord Tyler (LD)]

My Lords, this amendment seeks simply to tidy up an anomaly created by the government amendments here and on Report. My noble and learned friend informed us on Report last week that the threshold for registration would be £20,000 in England, £10,000 in each of Scotland, Wales and Northern Ireland, or £9,750 if the spending was to take place in one constituency. In other words, the lowest of the spending limits in the Bill—the £9,750 constituency limit—is exactly equal to the threshold for registration if the activity is focused in that constituency.

The Government’s approach is the same as that I took in my initial amendments on thresholds in Committee. However, I was then persuaded by the Electoral Commission, with the very explicit advice that,

“this approach would cause significant workability problems, since in practice campaigners will either remain below the registration threshold or will be in breach of a spending limit”.

It went on:

“We therefore do not support this amendment”.

The very valid point it was making was that, if you need to have a point of registration, it must be lower than the spending limit with which the activity is concerned, so there are two quite separate processes. First, an organisation says, “I am spending X, so I need to register”. Then it goes on to say, “I have now spent Y, so I cannot spend any more”. The commission has said very clearly on a number of occasions that X and Y cannot be at the same level, but that is the effect of the present situation arising from the recent government amendments.

My amendment therefore sets X, which is the threshold for registration if you are spending in just one or two constituencies, at £5,000 and leaves Y—the Government’s proposed constituency limit—at £9,750. This provides the process of spending, registration, more spending, then reaching the limit—which is exactly what the Electoral Commission has indicated is desirable and essential. I therefore hope that the Minister will recognise that, even today, the Electoral Commission is saying that the Government’s amendments in this area are just not quite right. Importantly, they are defective.

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[Lord Morris of Aberavon]

I am most grateful to the Minister for his help. I shall not press Amendment 26.

[Lord Tyler]

If I may return to Amendment 9, my noble and learned friend made the very fair comment that this is a judgment call. It is not just my judgment with which he has a problem; it is the judgment of the Electoral Commission. I shall read again what it said, as I do not think my noble and learned friend covered this point. It said previously that if a registration threshold is identical to a limit, there is a problem. It said that,

“this approach would cause significant workability problems, since in practice campaigners will either remain below the registration threshold or will be in breach of a spending limit. We therefore do not support this amendment”.

That is precisely where the Government’s amendments have left us.

As I also said, I am not wedded to the figure of £5,000. If it were necessary, we could go up to £8,000. The key point is that there must be a gap between the registration threshold and the limit. That is not my advice but the advice of the Electoral Commission. That is its judgment call. Therefore, I must invite my noble and learned friend to think carefully before this element of the Bill is considered by our colleagues in the other place tomorrow—as it will be, since there will be government amendments that they will be addressing—as to whether there is not some way that we can deal with this very serious problem. On the basis that I still regard this as an important judgment call—one on which I think my noble friends and I differ, the Electoral Commission being on my side—I am happy for the time being to withdraw this amendment.

Amendment 9 withdrawn.

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[Lord Cormack]

I suppose that the answer to that question, which is a perfectly reasonable one for the noble Lord, Lord Martin, to ask, is that some would perhaps be eligible but others would not. We know from what we have debated in this Bill that not every such body can become a registered charity; it depends on what the aims are. It is possible that some could, but certainly not all of them.

[Lord Tyler]

My Lords, in respect of the comments made a few moments ago by my noble friend Lord Cormack about the Electoral Commission, perhaps I should put on the record that I sit on an informal cross-party advisory group for the Electoral Commission. It is not a pecuniary interest, but it means that I take very seriously its advice.

As the noble and right reverend Lord, Lord Harries, said, Amendment 11 builds on my own amendment on Report last week, and on Amendment 170A in Committee, and I welcome the fact that it is still here for our discussion. However, I believe that too much building has taken place, and I regret to say that I think that the lawyers have been too clever by half. The purpose of my amendment was to simplify drastically the operation of the constituency limit. I wanted to do away with any need for anyone to work out what did or did not have a significant effect on whom. That was the previous test, which I thought was extremely ineffective and very difficult for small organisations to address without great bureaucracy.

In my estimation, if election material that can reasonably be regarded as seeking to promote or procure the electoral success of a party or candidate has been sent directly to an elector in a constituency, it should be counted under the relevant constituency limit. That seems to be a very simple test. Likewise, if unsolicited telephone calls are made to ascertain or influence voting intentions, it is easy to know where the people whom you are calling live and to allocate those costs to a constituency limit. The amendment on Report was about simplicity.

However, my noble and learned friend the Minister made a compelling point on Report last week. He said that materials could be distributed within a constituency other than by delivering them directly to electors’ homes—they could be handed out in town centres, for example. The noble and right reverend Lord, Lord Harries of Pentregarth, has rightly tried to meet that point in proposed new sub-paragraph (1) of his amendment, but the complication of considering whether materials handed out in a town centre are trying to influence a constituency result has led him and his advisers to complicate the amendment with proposed new sub-paragraphs (2) and (3) of the amended schedule. Therein lies a problem.

The cumulative effect is to ask those campaigners—many of them small operations, as we have been constantly reminded—to consider their spending against not one test, as I advocated last week, but three. First, there is my test, which I have already given: are the phone calls and election material directed at a particular elector or household? That is easy. Then we have in this amendment, secondly: does the material have a significant effect just in the constituency to which it was sent? Who can tell? When can they tell? Perhaps they can tell only after polling day. Therein lies another problem. Then there is the third qualification: can it reasonably be inferred that the third parties selected the electors in order to contact electors in that constituency,

“and not a wider section of the public”?

Who will adjudicate on that and when?

I do not know how one can be sure of either of the latter tests, either in terms of the Electoral Commission and its very proper responsibilities, to which my noble friend Lord Cormack has just referred, or of the organisations that have been in touch with us over the past few weeks. I can see that it may be necessary in relation to the narrow issue of handing out leaflets in a town centre. After all, leaflets handed out in the town square of my old North Cornwall constituency would almost certainly be directed at North Cornwall’s results and voters, but leaflets handed out in Trafalgar Square might not be directed only at voters in the City of London and Westminster.

That is a problem—one brought about by the Minister’s legitimate concern about the distribution of leaflets in a town square. If we had more time for drafting, I would be able to find some additional tests, but only for this additional activity of handing out leaflets rather than for all deliveries that could take place. It is a rather complicated point and I apologise for that to Members of your Lordships’ House—but it is an important one.

As the amendment is drafted, it means a loophole is created, permitting direct communication with voters outwith the constituency limit because it could somehow be deemed under sub-paragraphs (2) and (3) of the amended schedule that the materials sent to them were not really supposed to influence the constituency result. I do not buy that, and at this stage it leaves a real lacuna. If you write to a voter in a constituency to promote or procure the electoral success of a party or candidate, I am confident that you are trying to promote or procure their electoral success in that constituency. That is a simple rule, and one it would be simple for campaigners big and small to follow.

At every stage of the Bill, from Second Reading right through to Report last week, I have been concerned to simplify and clarify the requirements placed on campaigners, reflecting what they—the campaigners, who are charities and other organisations—have said consistently to me and my Liberal Democrat colleagues in both Houses, and no doubt to many other Members of your Lordships’ House. None the less, I regret the position we are now in since I have pursued this issue right from Committee.

I return to the point made by my noble friend Lord Cormack: the Electoral Commission still says that it has concerns about the enforceability of a constituency limit. There needs to be a constituency limit. A revised amendment along these lines would make that more effective and much easier to enforce. Combined with the sensible changes to the constituency threshold that I outlined in the debate on the previous group of amendments, the whole regime would be much tighter and more workable, which is what the Bill sets out to achieve.

Following up on the point made by my noble friend Lord Cormack, I promised to refer to the advice given to us by the Electoral Commission. At the end of its advice to us for today, referring to Amendment 11, it said:

“We think this amendment would reduce this problem, but in practice it will still often be difficult to obtain adequate evidence of a breach at a constituency level and deal with it before polling day”.

That is an extremely important point. To that end, I hope that my noble and learned friend the Minister will respond positively to this amendment, even if it means that some simplification must be achieved in the other place tomorrow.

[Lord Harries of Pentregarth]

The noble Lord knows that I value simplicity even more than he does. Would he not agree that it was right to try to respond to what the Minister said about the distribution of leaflets, and that if you were doing that, you had to try to define what was meant by focusing on a constituency or influencing the voting intentions of people in a constituency? Would he not also agree that, while there was, of course, a qualification at the end of the last advice from the Electoral Commission that there were probably difficulties remaining, the difficulties with this Bill are now far less than they were originally or even, perhaps, with his own amendment at an earlier stage?

[Lord Tyler]

My Lords, in response to that, I certainly agree that the Bill is greatly improved and I pay tribute to the noble and right reverend Lord for the amazing amount of work that he and other noble Lords have undertaken to achieve that purpose.

I regret very much the speed with which we have moved from Report to Third Reading and that we did not have a genuine opportunity—we only had a comparatively few hours yesterday—to look at this together. I regret even more that any amendments passed today, whether government amendments or others that are passed by your Lordships’ House, will be considered by the other place within 24 hours. The short period for discussion of any necessary improvements is very unfortunate. Had his amendment simply brought in the point raised by the Minister about leafleting, and therefore stuck rigidly to the simplicity of the first provision in his amendment, I would be much happier about it.

[Baroness Williams of Crosby]

My Lords, I intervene briefly in this debate because I am struck time and again in the exchanges in this House by the endless pursuit of perfection in an area where I do not think that perfection can be achieved. We have to accept that the best compromises that we can get are the best that we can do by this Bill at this late date. I know that it reflects the failure of pre-legislative scrutiny and I know that it reflects the lack of consultation, but given that we are where we are, I think that the recent amendments put forward—not least the ones by my noble friend and those by the noble and right reverend Lord, Lord Harries of Pentregarth—further improve the Bill. We should be pleased with having produced that effect as the matter goes to the other place.

I completely accept what my noble friend has said that it is a great shame, given the lack of pre-legislative scrutiny, that the gap between the deliberations in this House and those that are starting in the other place tomorrow is, frankly, ludicrous. It does not enable the other place to take into account the very careful and deliberate thought that has been given in this House, not least by the noble and right reverend Lord, Lord Harries of Pentregarth, and his very impressive commission, which most people here agree went into this Bill in great detail, produced some excellent amendments and really gave us the opportunity to say that the House of Lords has made a constitutional contribution of the kind for which it is distinguished in a large range of legislation.

I do not want to detain the House, but I share the view that there are certain limitations on the whole issue of dealing with leafleting and all the rest of it. I also recognise that what has come out of this is the best attempt we could make to simplify an extremely complex Bill and to keep as largely as we can the concept of constituency limits.

I have the greatest respect for outstanding intelligence, but I think that, in what the noble Baroness, Lady Mallalieu, said in her defence of the position she would like to see, she went a bit far. I think that she should have been a bit more fair about the extraordinary efforts made by Ministers in this debate to try to meet some of the points that she so forcefully made about the need to protect the freedom of speech and expression of the non-party campaigning groups. She is quite right about that, but I think that she was less than generous in her failure to recognise the extent—by raising the threshold and other ways—to which Ministers have tried to meet some of the arguments that she and some of her colleagues have made.

Having said that, I hope that Ministers will be able to pay particular attention to elements of what has been said in this House and to draw the attention of the other place—which means that they will have to work very hard tonight, I appreciate—to the points that have been made here that have not altogether been carried out. Having said that, in a very constrained situation, I think that this House and the commission can legitimately say that they have made a very substantial contribution to making this complicated Bill as good as it could be made.

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[Baroness Lister of Burtersett (Lab)]

I want very briefly to support the amendment but also to remind your Lordships’ House that the Joint Committee on Human Rights expressed concerns about the implications of the Bill for freedom of association and freedom of expression. I would be very grateful if the Minister, in responding, could assure your Lordships’ House that the effects of the Bill on freedom of expression and association will be part of this review, the importance of which was underlined when discussed in Committee—although I do not think that this particular point was raised.

[Lord Tyler]

My Lords, I very much welcome the noble and right reverend Lord’s amendment. I believe that it is preferable to a sunset clause because it will start the process of analysis of what is happening under the Bill before the general election happens, rather than having to wait till a later stage. I hope that it gets an equally warm welcome from my noble and learned friend on the Front Bench.

[Lord Wallace of Tankerness]

My Lords, as the noble and right reverend Lord, Lord Harries, has indicated, the Government brought forward at Report an amendment so that there will be a review. The Government are committed to appointing a person to undertake the review within 12 months of this Bill receiving Royal Assent. That came out of one of the meetings that we had with one of the campaign groups, which suggested that it might be useful to have someone in place during the election. We thought that that was a very sensible suggestion and one for which we have provided.

I have discussed with the noble and right reverend Lord, Lord Harries, the merits and demerits of perhaps putting more in the Bill about what the review might or might not do, and we concluded that the minute we start adding things it begs the question as to what has been left out. There is no intention to limit the review, and I take the point made by the noble Baroness, Lady Lister. If people wish to make representations on that point in terms of the review, we would not anticipate anything stopping it—certainly there is nothing in the Bill that would stop it. I emphasise, however, that we believe that freedom of association and expression are vital. They are not impinged by the Bill; rather, what we have is transparency. We are not trying to stop people campaigning, but if they are campaigning in a way that seeks to influence an election it is not unreasonable that that should be transparent.

The next scheduled general election will be the opportunity on which the Bill will operate, and will provide a timely opportunity to review the effectiveness of those controls. On completion the person conducting the review must produce a written report which must be published and laid before Parliament by the Minister. The noble and right reverend Lord, Lord Harries of Pentregarth, tabled the amendment proposing that the report must be laid before Parliament within 18 months of the general election. It is right that Parliament should have the opportunity to consider the outcomes of the review well before the following 2020 election. It is appropriate that the review is done to an established timetable, and the Government are therefore pleased to accept the amendment.

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[Baroness Thomas of Winchester (LD)]

My Lords, I dip the tiniest of toes into the waters of this Bill, not as chair of the Delegated Powers and Regulatory Reform Committee but as somebody who knows a tiny bit about Henry VIII clauses, just to reassure noble Lords that this kind of power is well precedented and here it is very narrowly drawn. The House need not worry that the Government are in some way exceeding their powers or doing something they should not on this occasion. That is all I wish to say on this, but it has been very instructive to sit here and listen to the last few hours of debate on the Bill.

[Lord Tyler]

My Lords, my noble friend Lady Thomas of Winchester said, with typical modesty, that she had only a tiny knowledge, but she has more knowledge than most of us present in the House put together on the subject of Henry VIII clauses. I entirely endorse what she said. In fact, I do not think this is a Henry VIII clause because of its very limited impact. I think it is more, in terms of longevity, like an Edward VI clause, as Henry VIII ruled for quite a long time whereas Edward VI ruled for a relatively short time. It is more likely that that is the more appropriate historical analogy. As my noble friend just said, the power is only about consequential provisions; it includes the affirmative procedure; it is effectively sun-setted, because it is limited to the general election; and it is well precedented.

My noble friend Lord Cormack said just now that these were his final words on the Bill. He presumably assumes that the other place tomorrow will accept all our amendments or produce amendments in lieu that are so acceptable all over your Lordships’ House that we do not return to the Bill again. Let me be as optimistic as he is, just for a minute, and assume that that is the case. I therefore want to place on record my gratitude and congratulations to noble friends all around the House who have done some hugely important work on what I think is now a much better Bill and a necessary Bill. I am not sure that everybody in the House agrees with that, but I certainly said at Second Reading that I thought it was necessary and it certainly has improved.

I really think that we owe a very considerable debt to the Wallace duet. Ministers in the other place should perhaps take lessons from the way in which they have responded to very important proposed improvements to this Bill, which leaves this place in a much better state than when it arrived and that is very much to their credit. I am grateful to them for the way in which they consulted many Members of your Lordships’ House.

I think the noble and right reverend Lord, Lord Harries, would agree that the engagement of a large number of other people outwith the Westminster bubble—outside Parliament—in this process was actually a plus for your Lordships’ House. We must recognise that they were stirred by concerns and anxieties that were very real. I wish it would happen on many other occasions with many other legislative proposals. We may need to build on that in future. Perhaps it may be that those organisations will take more notice in future of the way in which your Lordships’ House scrutinises legislation, and that must be to the good reputation of Parliament as a whole.

I am glad that I have had the opportunity to contribute at all stages of this Bill and I welcome the way it is now leaving this House. That is due not only to the assiduous way in which many Members of the House contributed to these debates but to the engagement of a large number of others outside the House. That is a good result.

[Baroness Hayter of Kentish Town]

My Lords, we have some concerns about this power, but if we are given the reassurance that the Electoral Commission will be consulted and involved, that will reduce those concerns. I think the noble Baroness, Lady Thomas, has also added her imprimatur to that. I am sure that the Government will listen to the sage advice that they get from the Electoral Commission, should this be necessary.

I am much more optimistic than the noble Lord, Lord Tyler, so I think this will be our last outing on this Bill. I am sure that the good offices of the noble Lords opposite will be able to ensure that all is accepted down the other end tomorrow and they will not send it back as ping-pong. That is my assumption. Having already learnt, from the noble Lord, Lord Horam, on Report, the words “harrying” and being “harried”—referring to the noble and right reverend Lord—I am not sure what being “wallaced” is, but I think it must mean being heard with sympathetic ears. In this case, of course, it was four sympathetic ears and not just two.

We have complained about the timing of this and the shortage of time. Our complaints are of nothing compared to what it must mean to the Bill team. We are about to finish with this, but they are now going to have to scuttle down and do the whole thing again. Therefore, not only for their efforts but for the time constraints we put on them, we should give them a big thank you.

I thank my colleagues, some of whom are here. My noble and learned friend Lord Morris and my noble friends Lady Lister, Lady Pitkeathley and Lady Mallalieu are just some of those who have contributed. I also make a small thank you to a newish member of our own team, Byron Orme. This was the first Bill which he saw through this House so perhaps we can also thank everyone who, by their umpteen amendments, have helped him learn how to do that. He has been superb for us.

I thank the third sector, which I do not think went over the top. I saw an enormous amount of practicality—certainly when we from this side of the House said, “Look, that amendment just isn’t on”, they would say, “All right”, and come back with some different words, which showed practicality and an involvement in the political process at its best. I also put my thanks to them for the briefing which they gave to us all, whether we agreed with it or not.