Committee (5th Day)

Part of Parliamentary Voting System and Constituencies Bill – in the House of Lords at 3:40 pm on 15 December 2010.

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Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice) 3:40, 15 December 2010

My Lords, perhaps I will wait for those people to leave who are, disappointingly, not staying for the vigorous scrutiny of this Bill.

Clause 5 ensures that media outlets-specifically, newspapers, periodicals, the BBC, S4C in Wales and other licensed broadcasters-are not caught by the spending restrictions in place for the referendum, as outlined in the Political Parties, Elections and Referendums Act 2000. As yet another case of the consequences that befall legislation that is brought forth in haste and without time for pre-legislative consultation, Clause 5 was added to the Bill as a government amendment in Committee in another place.

The problems with the Bill, as introduced, were highlighted in the report of the Political and Constitutional Reform Committee of the other place, which brought to the attention of Parliament the ambiguous position of the media under the funding rules, as drafted. Unlike the spending limits that apply to elections, the definition of referendum expenses includes any material which provides general information about the referendum or puts any argument for or against the referendum question. As a result, for example, a newspaper editorial would constitute referendum expenditure.

I think that noble Lords on all sides of the Committee would be in favour of seeing as well informed a referendum campaign as possible, and newspapers are likely to play a vital role in that process. We obviously cannot have a situation where they are restricted from writing about the referendum, so the inclusion of Clause 5-or something like it-was necessary, but we believe that it can be improved. We are concerned that as a consequence of the planned combination of the polls on 5 May, there is significant potential for confusion in the audit of expenditure on elections. These two amendments seek to enforce the distinction between any broadcast or press advertisement relating to the referendum campaign and those relating to the local or the devolved elections.

Clause 5 refers to exceptions to the 2000 Act's spending rules for the proposed referendum on the voting system for the House of Commons so Amendment 39AA, the first in this group, seeks to emphasise that the broadcasts which are exempted are "referendum campaign" broadcasts. Referendum-related materials and party election materials must be differentiated. Our second amendment, Amendment 39AB, picks up the same point. If political parties are allowed to use their election broadcasts to argue the merits of the referendum, that could lead to claims that the argument is being weighted more on one side than the other. Party election broadcasts should be about the elections for individual officeholders, not the referendum. If they are about the referendum, that leads to the possibility of the expenditure being distorted. The changes recommended by our amendments are important. It should be in the interests of all parties and none that clarity over the administration of press coverage and expenses during the election period is maximised.

I am happy to say that the Electoral Commission has commented on the second of our two amendments. It says that Amendment 39AB has the effect that party election broadcasts during the referendum period will not be broadcast if they contain references to the merits of different electoral systems or to the referendum. In other aspects of the Political Parties, Elections and Referendums Act 2000, such as those relating to party spending, different electoral events are considered as distinct for regulatory purposes and the Electoral Commission says that, to be consistent with this, election broadcasts should not be permitted to encourage people to vote for a particular referendum result. It also goes on to say that it is worth noting that Section 127 of the Political Parties, Elections and Referendums Act 2000 currently prevents broadcasters transmitting any broadcast where its purpose, or main purpose, is, or can assumed to be, to further a referendum campaign for a particular outcome other than by the designated referendum campaign broadcasts.

I am not sure whether the effect of Section 127 in the context of combined elections-combined with the referendum, which is the position here-would prevent the broadcasting of a party-political broadcast that also includes material that relates to or for the arguments in relation to the referendum campaign. Therefore, our second amendment says that party election broadcasts should not be broadcast,

"if they contain references to the merits of different electoral systems or to the referendum on the alternative vote system".

That appears, as a matter of principle, to be supported by the Electoral Commission. I would be interested to hear the Government's view both about this and about the effect, in this respect, of Section 127 of the Political Parties, Elections and Referendums Act 2000.

These are important matters because one political party is united; I say united, but that may be an overstatement. However, one political party has support for one electoral system, while two political parties-Labour and Conservative-are divided on the issue. Actually, I do not know if the Conservatives are divided on the issue as to whether they support AV or not. Having one political party that is supporting the change-even though it is described by their leader as a "miserable little compromise"-means that these issues of expenditure are important, because if the change is not made, or if the matter is not dealt with by the Bill, you can have one political party spending money on it and the others not being able so to do because they are divided, not because of the limits.