Moved by Lord Collins of Highbury
52: Clause 27, leave out Clause 27 and insert the following new Clause—“Joint campaigning by registered parties and third parties(1) The Secretary of State must by regulations require registered parties to identify targeted expenditure incurred by a recognised third party that is subject to authorisation under section 94G of PPERA by the relevant registered party, and which exceeds the limits in section 94D(4) of PPERA. (2) Regulations under subsection (1) must include, for relevant returns submitted pursuant to section 80 of PPERA, provision for the introduction of a specific reporting category for targeted expenditure incurred by a recognised third party that is subject to authorisation under section 94G of PPERA by the relevant registered party, and which exceeds the limits in section 94D(4) of PPERA.”Member’s explanatory statementThis amendment would replace provisions on joint campaigning with the recommendation made by the Committee on Standards in Public Life in their 2021 report Regulating Election Finance (see recommendation 21).
It’s that man again, as they say.
Despite the urgings of the noble Lord, Lord Hodgson, on this clause I shall take a little time, because it is a fundamental issue of principle, whether intended or not. I have tried to stress to the Minister that sometimes, though consequences may be unintended, they are serious in their effect. I want to go through why I believe it is unclear what the purpose of Clause 27 is. There does not appear to be a problem to solve. Spending by non-party campaigners in support of a political party is already highly regulated under the targeted spending rules and counts against the party’s spending limits. I do not believe this clause has been really thought through and it risks substantial unintended consequences that could include silencing independent trade unions and interfering with the right of the Labour Party to set its own rules and order its own business.
Of course, we have had previous debates about tying up small, largely voluntary organisations with close associations with particular parties in red tape and scaring off civil society organisations working with politicians and parties. I urge the Government to think again on this clause and to replace it with recommendation 21 from the Committee on Standards in Public Life, to shine a light on non-party spending authorised by political parties. They should be looking to lift the red tape burden on civil society organisations, not add to them, so that we can get the balance right when it comes to election campaigning.
What is this clause for? We have targeted spending rules already; parties already have to account. The clause brings big changes and risks substantial unintended consequences. My noble friend Lord Kennedy and I have had meetings with the Minister. My noble friend and I worked together in the Labour Party, I as general secretary and he as finance director, and we had a statutory responsibility for reporting and accounting properly for all our expenditure, including third-party expenditure. We are both very keen to know what misbehaviour this clause is attempting to stop. Some may have concerns that non-party campaigners give political parties two bites of the cherry, but this is not really the case with the targeted spending rules brought in in the lobbying Act.
Third-party expenditure in support of a party already has to count towards the party’s election expenses. The third party cannot spend more than £31,980 in England, £3,540 in Scotland and £2,400 in Wales in support of a political party without clear written authorisation, which must be lodged with the Electoral Commission. This expenditure must then be declared by the third party in its return and, crucially, must also be included in the return of the relevant political party and count towards its expenditure. A trade union campaign for the Labour Party therefore already counts against Labour’s limits. Parties cannot artificially inflate their limits by seeking support from a third party. So there is not really any evidence of the need for this clause. What is it intended to stop? Has anyone provided examples of this behaviour?
Certainly, my noble friend Lord Kennedy and I have sought this information. Tell us what it is, because we may actually share the concern and want to seek ways of putting an end to it. As I say, we think the better way is to have greater transparency. Of course, there is a theoretical possibility that a political party could work with a third-party organisation and ask it to co-ordinate campaigns against its political opponents. This would not be covered by the targeted spending rules, but there is no evidence that this is taking place and, were it to take place, it is highly unlikely that the party would enter into a formal joint campaigning relationship with such an organisation. I suspect it would be very much an arm’s-length relationship, possibly deniable, and therefore not caught by this clause. I think it is worth bearing that in mind.
This clause disadvantages transparency, basically. It disadvantages long-standing, open relationships, particularly the ones Labour Party has, and will do nothing to stop fly-by-night wheezes—people who are operating on the edges of a campaign, who we know are there but are very difficult to pin down. It will not address those issues and will have unintended consequences, particularly for those organisations with long-standing, formal, transparent links to a political party. I am talking, as I have referenced in a number of debates, about the Labour Party, which was established at the beginning of the last century as a federal party. It had no individual members; it was made up of members of trade unions. It was not until 1921 that individual membership was brought in, but it did not exclude those individual members of affiliated unions. It was a federal party and remains so to this day. The party has a formal link, which could be caught by this clause.
If we knew what this clause was attempting to stop, we might not be so suspicious about its intentions. However, as it stands—to come back to the test that the noble Lord, Lord Balfe, mentioned—in the hands of a very hostile Government it could be used in a way that would completely undermine the structure and organisation of a major political party: the Labour Party.
What should replace this clause? There should be transparency, instead of unnecessary, unfair regulation that has not been thought through. As I say, the targeted spending rules are already there, expanding their limits by working with third-party organisations, but they could be much more transparent. Parties currently have to declare the spend of third parties incurring expenditure in support of them, but while it must be included in their return and account against their limits, there is no requirement for it to be labelled as targeted spend. This makes identifying where parties have entered into such arrangements with non-party campaigners difficult.
In its 2021 report Regulating Election Finance, the Committee on Standards in Public Life made a clear recommendation to increase transparency in the reporting of targeted spend. Recommendation 21 states:
“Parties should be required to identify what is spent by third parties as targeted spending on their behalf. The government should introduce a specific reporting category for targeted expenditure that non-party campaigners have spent in relation to an authorisation given by a political party.”
The noble Lord, Lord Hodgson, made the same recommendation in his review of the lobbying Act in 2016, in which he said in recommendation 16:
“There should be no change to the targeted spending provisions. However, political parties should have to distinguish what was spent by third parties as targeted spending on their behalf.”
I completely concur. Let us have more transparency, as the Minister has repeatedly said throughout this Bill, that puts the bureaucratic burden on the parties and not on civil society organisations.
I do not think we want to tie up non-party organisations with any more red tape than is already there. This amendment to delete Clause 27 and implement recommendation 21 from the Committee on Standards in Public Life puts an additional reporting burden on political parties, not on other organisations. Parties would have to ensure that their return accurately accounts for authorised targeted spend and by whom it was incurred. This is about getting the balance right on regulation.
It is important to be mindful of the role of non-party campaigning in the broader ecosystem of our democracy and pre-election spend. As the committee made clear when it first concluded that spending limits for non-party campaigners would be necessary, there is nothing wrong with individuals and organisations sending out explicitly political messaging in advance of and during an election campaign. Picking up on another theme that has run through our debates on this Bill, the Committee on Standards in Public Life said on page 95 of its report:
“On the contrary, a free society demands that they should be able to do so … The right to campaign is also protected by law through the right to freedom of expression. This should act as a check on ensuring that regulation strikes the right balance.”
One of the points made by the noble Lord, Lord Hodgson—I hope that I will continue to reflect some of the positive things he has said and recommended throughout this Bill—is that we should make sure that the third-party rules are fit for purpose, not make them more complex and chilling and put off the very thing the Committee on Standards in Public Life said we should promote: the role of civil society and democracies in other countries, as I have repeatedly said in this Chamber. This country spends a substantial amount of money trying to ensure that civil society can exist in other countries, to promote that principle, yet in our domestic legislation we seem to be putting up more and more barriers. This chilling effect around third-party campaigning and this self-censoring element are the most frightening parts of this legislation. That fear of breaking the rules will have the consequences we have described.
The rules are complicated and hard to understand. The definitions are vague and require detailed guidance from the Electoral Commission. The vast majority of organisations we are talking about do not have politics as their primary purpose, as I said in our discussion on the previous clause. They have volunteers. Many are run by volunteers, as the noble Lord, Lord Hodgson, spoke about at Second Reading. He also said:
“First, the regulatory period before elections take place, which is set at 12 months, is arguably too long. The rules governing joint campaigning are arguably too complex.”—[Official Report, 23/2/22; col. 281.]
Again, I agree with him. We should be able to facilitate participation in our democracy, not put up more barriers that present a huge regulatory burden to our civil society organisations. We should look to reduce red tape.
I stress specifically what Clause 27 could mean for affiliated unions. It could be an attack on their freedom of expression. Trade unions are independent organisations in their own right. Being affiliated to the Labour Party does not change that. They are entitled—and they do so—to campaign in their own name and on their own priorities, in the same way as any other civil society organisation. If unions affiliated to the party are deemed liable for Labour Party campaign expenditure because of the party’s governance structure, they risk losing their right to campaign in their own right. This clause risks denying those unions with formal organisational links to the Labour Party that freedom of expression. Unions are entitled to take a public view on politics in their own right as independent organisations. Their affiliation to the Labour Party cannot be allowed to silence their voice.
That silence is caused by the fact that trade unions are extremely regulated in their ability to campaign politically, independent of the Labour Party. Their political funds are extremely regulated. They are required to report every year on how that money is spent, and those records are published every year. If this clause unintentionally means that they can be caught up by this “joint campaigning”, they risk losing all of those funds being allocated as spend to the Labour Party.
One issue is that there is no legal definition of what constitutes joint campaigning. There is a risk that the interpretation of “joint campaigning” by the Electoral Commission could be broadened in the future, particularly if its independence is in question—another element of the Bill that we have spent some time on. Nothing in law prevents affiliated unions, many of which have representatives elected to the Labour Party’s national executive and who are involved in the process of agreeing the manifesto, potentially being held accountable for substantial amounts of the campaign expenditure of the Labour Party—that is what we are talking about in this clause. Given that unions are entitled to spend £390,000 in their regulated period and the party can spend £20 million, it is theoretically possible that unions could breach their own spending limits due to their form of affiliation to the Labour Party. Clause 27 puts at risk the right of the Labour Party to set its own rules and order its own business. There are extremely serious potential consequences that I do not believe the Government have given any consideration to. They have not thought through the consequences of this clause.
So what are we talking about? One of the things that this can impact on is affiliated unions’ ability to campaign against the far right. One of the many campaigns that unions have conducted has precisely been in the workplace, attacking racist and fascist parties and ensuring that working people are not sucked into that particular ideology. If unions’ expenditure is soaked up or used up by the Labour Party expenditure, they will not be able to campaign on their own terms in campaigns that are politically important to their members. Unions have a proud history of anti-racist and anti-fascist campaigning, including at election time.
An important theme in the Bill is the disproportionate effect or impact on Labour and organisations that advocate for a vote for it. No other political party has close constitutional ties with separate independent organisations in the way that the Labour Party is formally linked to the trade union movement. This risks silencing organisations that advocate a vote for Labour. It is disproportionate and it has a partisan impact that changes our democratic principles. More importantly, it is a further break in the consensus that we have had for many years on fundamental changes being subject to consultation across all political parties. It has not been thought through, and it is extremely dangerous.
Although we may be the only political party with those formal links with trade unions, other organisations may also be disproportionately hit by this clause. It would have unintended consequences for all political parties. The majority of the groups are volunteer-run and could suddenly find themselves tied up in red tape, having to account for expenditure by their political party if they are deemed to be in joint campaigning arrangements. I give the examples of the Conservative Christian Fellowship, Women2Win—an important organisation that funds constituency parties and candidates—the Conservative Animal Welfare Foundation and LGBT+ Conservatives, which I know campaigns for particular candidates. Other examples are the Tory Reform Group and even the Liberal Democrat Christian Forum, the Liberal Democrat Disability Association, Christians on the Left and the Fabian Society—I could go on.
The faith groups will be particularly affected, particularly the Quakers, because of the nature of their organisation, which is quite devolved. It presents difficult challenges for them in campaigning, as well as for some other groups—but the Quakers in particular were brought to my attention.
I am grateful to the noble Lord for saying that. Over the last few weeks, I trawled through all of the types of organisations that could be formally linked with a political party, where they might have some sort of agreement to jointly campaign.
I have tried to grapple with and generally understand what this clause is really attempting to stop. It has been described as closing a loophole, but I do not see that. The biggest loophole in election spending is around the negative campaigning that occurs. This is often associated not with any political party or particular candidates but more with causes that want to disrupt the political process. Again, this comes back to the Russia report. Who is going to do the sort of elicit negative campaigning that we have seen? It is more likely to be organisations under the regulatory framework that will not be captured by this clause. It will be the legitimate civil society and trade union organisations that will be captured by it. It has got nothing to do with transparency or trying to ensure that there is proper reporting; it will have a very negative effect.
I said to the Minister that I would give him examples of how some affiliated unions are quite fearful. I mentioned the Musicians’ Union, a long-established affiliate of the Labour Party. It has a political fund, 32,000 members and a member on the national executive council—so there is a formal organisational link and a formal management link, if you like. Because the definition of “joint campaigning” is not set out in law, there is a real risk that the MU could be deemed to be in joint campaigning arrangements. It will play a part in agreeing our manifesto, through that Clause 5 process that I mentioned. So I can see a scenario where the Musicians’ Union, which spends negligible amounts in campaign expenditure in general elections—it puts out social media and website content about voting Labour but does have anywhere near enough expenditure to even require it to register with the Electoral Commission, as the notional cost of staff time has been all too low—will be captured here, undermining a long-established principle.
I have spoken for a long time, but it is really important that I set out a very clear description of the Labour Party’s structure and relationship with affiliated unions, and how that could be damaged by this clause. I hope that the noble Lord will be able to explain what it is designed to stop. Tell us, and perhaps we can co-operate in coming up with something better.
My Lords, I support Amendment 52 in the name of my noble friend Lord Collins. He eloquently explained the pernicious threat posed by this legislation to our democracy. As a former leader of Unite the Union, I do not need anyone to tell me how dangerous this Bill, and Clause 27 in particular, will be to trade unions and their ability to campaign on the issues that matter to their members.
My noble friend Lord Collins said that it has not been thought through. Far from it: it has been well and truly thought through. This is yet another ideological assault on the trade union movement by this Government. It is nothing less than an attempt to gag the trade union voice once and for all, coming so soon after we debated the tax on trade unions to fund their own regulator, and a police and crime Bill which, as my noble friend Lord Hendy warned on Report, could see the end of the right to picket during lawful industrial action. It is clear that the Government’s agenda is nothing more than trying to stop us getting involved in talking with our members. It is certainly not “levelling up”, or “building back better”.
It is a shame, because there is no doubt that, as my noble friend said, trade unions are a working-class group of people who look after their members and those who struggle to look after themselves. They balance the bad bosses and a system that is sometimes rigged against them. We should always remember that union members earn higher wages than non-members. They have more paid holiday, better sick pay and safer workplaces. This is crucial, particularly at a time such as this when there is rampant inflation.
It is quite simple. Trade unions demand the right to campaign on any issue that matters to trade unionists, regardless, as has been said, of the Labour Party’s own priorities. For example, if I want to ask for more doctors for the NHS or to campaign against the far right in this country or on other serious industrial issues such as the shameful practice of fire and rehire, as a trade unionist, I must surely have the right to do so through the democratic structures of my union. Just because a trade union is affiliated to the Labour Party, it does not mean that we always share the same political priorities: far from it. Why should money be spent by Labour on an election campaign count against the limit allowed by, for example, my union, Unite? With the greatest respect, it makes absolutely no sense, unless the objective is to silence the trade unions.
Another clear danger with Clause 27 is the chilling effect it will have on unions because they will be afraid to break the rules. The rules themselves are unclear and could change at the whim of Ministers. It will also actively discourage unions and other groups from campaigning together as a coalition—a totally legitimate activity that should be welcomed in any democratic society.
Clause 27 could even lead to Labour-affiliated unions being held accountable for the entire election campaign expenditure of the Labour Party. This would be a completely crazy state of affairs. Because “joint campaigning” is not properly defined in the Bill, affiliated unions could discover that they had exceeded their own expenditure limits many times over. They could even be breaking the law before they had had a chance to begin to campaign on their own priorities. Surely this is absurd. It is almost surreal. This situation must not be allowed to happen.
Let us not kid ourselves: this is an unprecedented and unconstitutional attack on the Labour Party and on the affiliated trade unions that founded it. It completely undermines the most basic principles of democracy, freedom of speech and freedom of association. Again, as has been said, this Bill breaches the long-standing convention on cross-party support for any fundamental changes to the democratic process. Unfortunately, the Government are riding roughshod over this convention. They are attempting a power grab of epic proportions. For the sake of our democracy and for the freedoms we all take for granted, this draconian legislation—and this clause in particular—must be defeated before it ever reaches the statute book. Amendment 52 is a critical step in this fightback. I urge all those who wish to defend our democracy and freedoms to support it.
My Lords, when dealing with election law, it is always worth looking at unintended consequences. I could speak at length about trade unions, the Labour Party and funding arrangements. During the 1997 election, I was described by the Sunday Times as the “bag man”.
That has been covered. I shall restrict myself to two unintended consequences which the Government would not have expected and which I think will emerge. The first is the so-called dining clubs. Some years ago, I did quite a lot of work on stopping them meeting in here. The dining clubs are primarily a Conservative Party-supporting concept and institution. Occasionally, there are some in other parties. This is a long-standing way in which the Conservative Party has raised money— in my view, perfectly legitimately. The unintended consequence that I read in the legislation as framed is that, at the moment, electoral law requires only the net income to be considered. If £30,000 is spent on a dinner and £10,000 or £20,000 is raised, there is a specific legal requirement as to how this is accounted for. It is well and adequately covered in the law. However, this clause seems to say that the entire expenditure will have to be accounted for. This is not a problem for national parties, but it is a problem for individual candidates.
Until the last five years it was possible to know when a general election would be. I am in a minority in thinking that it is not a good idea to move away from fixed-term Parliaments. If an election is called at the whim of the Prime Minister of the day, the candidate will not know where this expenditure will fit with candidate expenses. I predict the unintended consequence of the possibility of a legal case which could lead to a duly elected Member of Parliament no longer being a Member of Parliament. I urge caution on this.
A second unintended consequence could be much more widespread. It concerns the use of Labour, Liberal and Conservative clubs for political campaigning—otherwise known as elections. I understand the law and, as I have worked in this area for a long time, I am pretty sure that I am right. At the moment, the law is fairly loose in that a Conservative Party campaign can be based in a Conservative club. Many are. This seems reasonable. There is probably a slight advantage in that there are more Conservative clubs these days than Labour or Liberal clubs. This does not seem to impact on our democracy in any undue way. However, this clause would make it necessary to account for this as joint campaigning and therefore election expenditure. It would become a nightmare of defining what is expenditure, when it is clearly joint campaigning for the officers of an independent Conservative, Labour or Liberal club, to agree to have a campaign base inside their club. As everyone knows, this is common across all three parties. One could easily cite scores of examples—sometimes there is more than one in the same election in one constituency.
That does not seem very clever. Again, people will have a field day with picking holes in it. When one looks at what I think are the appropriate, minimal amounts of spending in any one constituency, this is pretty major for our democracy. It is obviously not the Government’s intent. As ever, with electoral law, unintended consequences are the problem. There is a big problem with this clause.
My Lords, I will keep my remarks on this group to a minimum, because I have a similar amendment coming up on which I will say more. But I did not want to let this debate pass without saying how problematic this clause is. It is a serious issue that must be addressed. I think the noble Lord, Lord Collins, has set it out very comprehensively and clearly.
Put simply, the clause is unnecessary. Nobody has defined a problem that needs solving by this clause. Secondly, it is unquestionably partisan in its impact; it is absolutely clear that it will affect one party more than the others. That should be a guiding test for this House; we do not do that. We do not introduce legislation that is purportedly even-handed but is anything but. That should not be what we are about in this House. We need to recognise that. I worry a bit that the debate becomes one between the political parties when I think that this side of the House should be as concerned about the constitutional impacts of this legislation as anyone else.
The third issue has just been brilliantly set out by the noble Lord, Lord Mann: there will be a whole series of unintended consequences from the proposal in this clause. But, for me, the worst and most unintended consequence is the chilling effect. It is what will not happen because this is in legislation. People will err on the side of caution; they will not want to get caught up in major legal battles, so they will not campaign on issues that they feel strongly they should campaign on. Effectively, that is a silencing of their voice. All of us, whatever side of the House we are on, should be very concerned about that.
My Lords, for the reasons explained by my noble friends Lord Collins and Lord Woodley, Clause 27 poses an unjustified, unnecessary but serious threat to trade unions. I say so for three legal reasons: the threat is to three particular rights. The first is the trade union right to autonomy—that is, the right of a union to determine its own constitution and how it will spend its own money. That is a right protected by Article 11 of the European convention, as vouchsafed in the case ASLEF v United Kingdom in 2002. Secondly, it interferes with the right of a trade union to campaign. That, too, is an aspect of freedom of association and the right to be a trade union member protected by Article 11 of the convention. Thirdly, it interferes with the right of trade unions to express themselves—freedom of expression—protected by Article 10. As I said earlier today, to justify such incursions on to those convention rights requires a demonstration that the restrictions are necessary in a democratic society.
As my noble friend Lord Woodley pointed out, this and other provisions in the Bill form part of a long line of legislative restrictions on the capacity of trade unions to improve and maintain the condition of the lives of working people, to coin the web’s phrase. I will not go back to the restrictions on political expenditure first imposed on unions in the Trade Union Act 1913 and preserved today, but I will refer to the legislation of the 1980s, which Tony Blair, as he then was, described in an article in the Times—which I am afraid is for ever embedded in my memory—on
“the most restrictive on trade unions in the Western world”.
Of course, Tony Blair’s Governments chose not to repeal that legislation, and unsurprisingly, the Governments formed from the Benches opposite have not repealed it either. Indeed, they have extended it. In place of the promised employment Bill, which it was said would extend the rights of workers, we have had further restrictions on trade unions. I refer to the Trade Union Act 2016 and, as my noble friend Lord Woodley has mentioned, the Police, Crime, Sentencing and Courts Bill, which further restricts the right to picket in many specified industrial sectors. Last week we had the statutory instrument on the trade union levy in respect of the certification officer, which imposes a tax on trade unions and gives further powers to the CO—and now we have the Elections Bill.
When all these things are seen together, it is clear that Clause 27 is part of a pattern. I accept that, as my noble friend Lord Collins said—and as the Minister said this morning—these clauses have implications for other democratic bodies too. But Clause 27 is unjustified. To cite the test of the convention, it is not necessary in a democratic society.
My Lords, when I first came into this place, I found it surprising that noble Lords from the other side of the House would often stand up and argue that it was inappropriate to introduce clauses in Bills unless the purpose was clear, and they clearly met a required need. So I now find it strange that, as my noble friend Lord Collins of Highbury said, this seems to be an example of precisely that. I appreciate that the Minister was not in the House at that time, but I am sure he was a close observer, and that he will recall those speeches and those comments.
I also find it strange that, when we have a highly respected Committee on Standards in Public Life and it has put forward a series of recommendations in precisely this field, the Government have chosen to ignore them. I hope that when the Minister responds he will explain precisely why those recommendations have been ignored. What is the rationale? Why have the Government said, “We substitute our judgment”, which might, just might, be partisan, “for the judgment of the Committee on Standards in Public Life”—which is clearly non-partisan?
I rather wonder whether the Government misunderstand the nature of the relationship between the trade union movement and the Labour Party. I hope that they will no longer do so after the speeches by my noble friends Lord Collins, Lord Woodley and Lord Hendy. But I have sat in too many meetings with the leadership of my party, who, in the privacy of those four walls, were almost tearing their hair out at some of the campaigning and other activities of trade unions affiliated to the Labour Party. As I am sure my noble friend Lord Woodley would agree, it is a fallacy to say that trade unions and the Labour Party are always marching in lockstep on every issue. Frankly, that is not the case.
The general principles and general philosophy may be the same, but the details are clearly not always to each other’s tastes. The idea that all this activity can be conflated without producing some very unfortunate consequences seems to me extraordinary. I hope that when the Minister responds he will, first, give us a clear explanation of the purpose of the measure and why it has been brought forward at this time. Secondly, I hope that he will tell us why the Government have chosen to ignore the recommendations of the Committee on Standards in Public Life. Finally, he might just give us his understanding of the relationship between the trade unions and the Labour Party.
My Lords, I think that it might be my turn now. First, I apologise for not being in the House for the session before lunch. I was attending the Committee on Standards in Public Life, of which I am a member. That committee, as I have reminded the House before, has on it a representative of the Labour Party, Margaret Beckett, a representative of the Conservative Party, Jeremy Wright, and a representative of the Liberal Democrats. It is under the chairmanship of the noble Lord, Lord Evans of Weardale, who is of course a Cross-Bench Member of this House, and it has a majority of independent members.
As the noble Lord, Lord Harris, just reminded the House, the committee produced a report, Regulating Election Finance, which is quite thick and I would like to say quite substantial. It makes the case eloquently and clearly, based on evidence, about the things that need to be improved in our electoral regime, the things that need to be protected and the things that need to be prevented. It does not contain a recommendation that coincides with Clause 27.
I have asked the Minister before whether he would be prepared to give us some kind of ministerial or departmental list in which the 47 recommendations that appear in the report cross-reference with the Elections Bill. His answer last time was that the Government gave their reply to this report last October. I took advantage of the committee meeting this morning just to make sure that I was not mistaken and took another careful look at what the Minister said about the report, specifically what his response said about recommendation 21. The answer that he gave in his letter was that, broadly speaking, the Government were thinking about it.
A slightly more detailed annexe brings together five or six of the recommendations in the report, including recommendation 21. I will not reproduce exactly the reasons given for not proceeding with any of them because I assume that that will be part of the Minister’s wind-up speech in a few minutes’ time. Broadly speaking, it says, “It is all complex, it could easily make it much more difficult for people, it is not proportionate and really we were taking into account a lot of other views and consideration and it needs detail”, et cetera. Noble Lords will obviously be able to hear it in a more refined form when the Minister winds up.
What the response does not do at all is to answer why recommendation 21 should not form part of this Bill. Paragraph 8.29 of the report says:
“The Electoral Commission explained in their 2015 General Election spending report that it is difficult to identify in the spending returns how much targeted spending has been incurred and if it has been correctly attributed to the relevant limits.”
So the Electoral Commission identified a specific problem of third-party spending targeted but not properly attributed to the relevant limits. The same paragraph goes on to say:
“The Hodgson report later made a similar recommendation. We agree that this change should be made to increase the transparency around campaigning that is carried out on behalf of political parties.”
Recommendation 21 is very similar to the explanatory note attached to the amendment from the noble Lord, Lord Collins:
“Parties should be required to identify what is spent by third parties as targeted spending on their behalf. The government should introduce a specific reporting category for targeted expenditure that non-party campaigners have spent in relation to an authorisation given by a political party.”
That recommendation seemed to the committee at the time to be soundly based on the intelligence and evidence available, first, from the Electoral Commission in its 2015 general election report and, secondly, from what we referred to, rather offhandedly. as the Hodgson report—the noble Lord is in his place—which made a similar recommendation, as well as from other evidence that we took both verbally and in writing and which is published and available on the committee’s website. In paragraph 8.30, we went on to say:
“We also agree with Lord Hodgson’s proposal that non-party campaigners should have to disclose more information about themselves.”
Amendments to that effect have come before this House as part of this process.
Even if the Minister does not change his winding-up speech, what I hope he will hear is that the people who have looked at this with an objective and serious eye—I put the noble Lord, Lord Hodgson, and the Electoral Commission in that category and I am brave enough to put the Committee on Standards in Public Life in that category—have seen that there is a weakness that needs to be fixed. The issue is not whether there are no weaknesses; it is what on earth Clause 27 is supposed to fix, because it does not fix that issue. What it does, as we have heard eloquently expressed by a number of noble Lords who take the Labour Whip, is have a potentially severe and adverse effect on them and on the trade union movement.
I put in parentheses that I think that it is extremely unlikely that the Liberal Democrat Christian fellowship, which I happen to be a member of, would be in a position to put any money into anything. However, I recognise the point made eloquently by the noble Lord, Lord Mann, that maybe those of us who have Liberal clubs in our constituencies should be looking at this. In the constituency in which I live and which I represented for 18 years at the other end of the building, I think that we have three Conservative clubs and, sadly, only one Liberal club, so it could be that my Conservative colleagues are at even more risk than we might be as a result of the unintended consequences of this clause.
The clause fails to address the issue that was identified, but it does address some other issue that nobody can quite put their finger on—at least, it does not seem to be a reputable thing that it puts its finger on. Perhaps there is some solution or purpose that all of us other than the Minister have completely overlooked, but we shall find that out in a moment or two. Not only does the clause fail to answer a question but it has unintended consequences that are quite likely to finish up backfiring, much to the detriment of the Conservative supporters of the clause as it stands.
I make the point as strongly as I can that when we legislate in this House, that legislation is supposed to improve things and not make them worse. It is supposed to improve things in the eyes of those of us who make the legislation and in terms of the people who are the subjects or the victims, as the case may be, of our legislative efforts. One thing that we ought to improve by way of this Bill is the overall fairness of our electoral process. We ought to continue to make it something to which ordinary folk have access. In so far as we inhibit third parties contributing to our democratic process, whether they are recognised components of civic society such as trade unions, informal components such as Liberal clubs and Conservative clubs or special interest groups, all those people ought to be able to play an active part.
The problem that has emerged, which this clause does not tackle, is how targeted spending by one or other or more of those bodies should be accounted for in local and national campaigning. In national campaigning it is an irrelevant consideration, but in local campaigning it is highly relevant and surely it must be the case that ordinary folk ought to be able to contribute to those campaigns and that the candidates and agents of those campaigns ought to have a duty to say how much help they received. Some of the regulations we have at the moment succeed in doing that, but there was a specific gap, which was appreciated and notified by the Committee on Standards in Public Life in recommendation 21. I very much hope, not with a tremendous amount of expectation, that the Minister may be able to adapt his pro-forma wind-up speech to take some account of the concerns that have been raised in the debate so far.
My Lords, I am grateful to all noble Lords who have spoken. I venture to say that I am unable to alter every word of what I might be advised to say, but I repeat what I said this morning when we had the first group on Clause 25. I hope that those who were present this morning will understand what I said in earnest when I responded to that. I listen to what is said in your Lordships’ House. Sometimes it is not the wisest thing to give a full response on the hoof but to give a commitment to further consideration and discussion with noble Lords in all parts of the House, which I undertake to do.
I will respond in general terms on this clause and will follow up in writing specific points that have been made in the debate. I am advised that it is unlikely that clubs will be affected, but this is why I think it is not wise to give a response on the hoof. I think we need a collective understanding of where it might go and, ultimately, it is for the Electoral Commission to give guidance and advice on these matters.
I enjoyed that part of the debate where the Government’s position was likened to that of Mr Tony Blair. I am not sure whether that was meant as a compliment or otherwise, but I hope that we can move forward in a spirit of understanding. One of those understanding points is that spending limits are an integral part of the political finance framework— I think we all agree on that—and that they ensure a level of fairness between parties and campaigners. The issue that some noble Lords have put is that they do not believe that the clause before the Committee meets those criteria, and I will reflect on what has been said.
Clause 27, which the amendment is designed to take out, is designed to prevent unfair circumvention of spending limits. It is fundamentally unfair that the current rules allow for a party potentially to use another group’s spending limit or resources in order to increase its own spending power. Under the existing legislation, campaigners could game the system by establishing distinct groups that together, working with a political party, have an enhanced spending capacity via multiple limits. Indeed, the noble Lord opposite acknowledged that in his speech. It is right that, where groups work together on a campaign, the spending should be accounted for by anyone involved in that campaign, otherwise spending limits are meaningless, and I think that, again, that is broadly common ground.
The effect of the Bill—noble Lords have questioned this—is to extend the principle of joint campaigning, which applies where third-party campaigners are working together, to cover scenarios where political parties and third-party campaigners are actively working together on a campaign. This is not altering the definition of joint campaigning as it is commonly understood; the measures only apply to qualifying election expenditure, not wider, non-electoral campaigning that groups may undertake. I will come specifically to the point on affiliated trade unions later. Political parties and third-party campaigners will be aware if they are working together on a campaign that involves spending money on regulated election expenditure.
The proposition that the Government are putting forward will simply mean that, where a political party and third-party campaigner are incurring spending together, actively campaigning together, the relative spending for that joint campaign should be accounted for by all groups involved in the spending. This will help to ensure that all campaigners are playing by the rules and make it easier for the public to know who is involved in such campaigns.
The measures are intended to strengthen the principle of spending limits already in law that protect the level playing field by ensuring that political parties cannot use campaign groups to enable them to expand their spending limit potential—what could be seen as a political party outsourcing its regulated spending to a third party. As we discussed in relation to Clause 22 —and the noble Lord, Lord Wallace, has done some research on the matter—during the 2019 general election, the group Advance Together registered as a political party and a third-party campaign group and proceeded to run negative attack campaigns in five constituencies. What can be done in five places can be done in others.
Just on that point—before the Lib Dems jump up in shock and horror—in that case the one organisation registered both as a political party and as a third party. Those are not the circumstances of separate organisations coming together. That particular problem could have been identified by the Electoral Commission and could be subject to provisions to stop a single entity trying to expand its spending limits by becoming more than one type of organisation. This is not what we are talking about in Clause 27.
My Lords, I was coming on to say that. While Clause 22 will ban the same organisation from appearing on both registers at the same time, the effect, as noble Lords have said, of existing joint campaigning rules and this proposed extension is to reinforce that by stopping other ways that spending limits could be avoided and so it maintains the level playing field.
Of course, that will not affect groups spending on campaigns, even on the same issues or with the same objective, separately outside a joint plan, in their capacity as an individual recognised third party or political party. Any regulated spending undertaken by an individual group not as part of a joint campaign will only need to be reported by the group incurring the spend. No political party or third-party campaigner should be allowed to use the facade of multiple groups working together to expand its spending limits on campaigns where the various groups are for all intents and purposes operating as a single group.
The noble Lord has proposed an alternative approach, which, as the noble Lord, Lord Stunell, rightly said, refers to the CPSL recommendations. By the way, the CPSL recommendations came out after the Elections Bill was introduced. When I refer to some of the things we were doing in the spirit of CPSL, it is in that context. But I did make very clear that we took that committee seriously. The noble Lord’s amendments would require the Secretary of State to introduce regulations for the purpose of requiring political parties to distinguish targeted spending from other expenditure in their spending returns.
I appreciate that the noble Lord’s intention, and that of CPSL, is to increase transparency on this important topic. However, this replacement does not match the extent of transparency that Clause 27 creates. There, we get into a point of difference. Targeted spending is more limited in its definition than joint campaigning. It focuses only on the promotion of a single political party and its candidates exclusively, not campaigning in relation to policies or issues that may relate to the electoral prospects of a number of political parties. Furthermore, targeted spending also does not cover negative campaigning intended to, for example, reduce support for other candidates or parties. I know that Members of the other place are particularly concerned by this issue, and it is right that such activity, which is highly prevalent in modern campaigning, is transparent.
Targeted spending therefore does not include all scenarios where third parties and political parties might actively work together. That is not to dismiss the importance of the amendments that the noble Lord has put forward. But focusing only on targeted spending and failing to tighten the rules on joint campaigning, as the noble Lord suggests, would not, in our submission, deliver full transparency for the public and might allow campaigners for parties to—
May I ask a question? The Minister refers to concern down the other end. I also wish to express concern about some of the negative campaigning that can occur in general elections, and I am keen to hear from the Government how they intend to deal with that. The fact is that this clause requires there to be a common joint effort, formally recognised, between a party and another organisation. The fact is that most negative campaigning that takes place does not fall into that category, so this clause can have an impact only on those organisations that have a formal relationship—in other words, the Labour Party.
I accept the point made by the noble Lord about the wider ambit of negative campaigning, and I hope that is where we will find—whenever we finally get there—a measure of agreement across the House, in the context of, for example, digital campaigning. I agree with the noble Lord and the Committee on Standards in Public Life that third-party campaigning should be transparent, and campaigners should participate on equal terms and be accountable. These principles are already represented in current law.
I have heard what so many noble Lords, and people who have a proud record of commitment to the trade union movement, have said in this debate, and, as the noble Lord, Lord Collins, was kind enough to say at the outset, my officials have met with the TUC and the Trade Union and Labour Party Liaison Organisation, and we remain open to continuing those discussions. I have met with the noble Lord and his colleagues, and I am ready to do so again. We have listened closely, and I have listened again today to their concerns that Clause 27 will unduly limit the close relationship between the Labour Party and some trade unions. Much of the expressed concern has centred around the definition of “joint campaigning” and whether it would capture, for example, trade unions agreeing policy or manifesto commitments as part of the Labour Party’s governance structure. Clause 27 does not alter the definition of joint campaigning as it is commonly understood, and the Electoral Commission already provides guidance on what is and is not likely to constitute joint campaigning under the current rules, and we would expect them to update their guidance were new rules to come forward in the Elections Bill to reflect the extended circumstances. We will come onto statutory guidance later.
The Elections Bill also does not change the definition of “controlled expenditure”, meaning that only spending which may be reasonably regarded as intended to promote or procure electoral success in the lead-up to an election is regulated, whether that is undertaken by a political party or a third-party campaigner. In practice, such activity as formulating policy for inclusion in a manifesto is unlikely to meet the Electoral Commission’s “purpose” or “public” tests, which will remain used to determine whether spending is regulated. It also would not include campaigning or advocacy on issues such as poverty or climate change that are not linked to the electoral success of parties or candidates.
Finally, I want to be clear that under the current rules or under the rules proposed in the Elections Bill, a party being affiliated or having a formal relationship with another campaigner does not in itself automatically constitute joint campaigning. Being an affiliated trade union does not mean that all activity of any other member of the affiliation would immediately count as joint campaigning, unless that activity met the Commission’s existing tests for joint campaigning. Affiliated groups running related or complementary election campaigns would not necessarily constitute joint campaigning, as the campaigns may be being run independently of each other. Only if the campaigns were being conducted in pursuance of a common campaign plan would both groups need to account for the spending.
I hope my response has gone some way towards at least assuring noble Lords that the Government are listening and have listened to the debate on this subject. I hear the concerns that have been expressed, but this clause is not intended to target trade unions. I have heard the submissions made about unintended consequences, but, as I fulfil my duty to sit here, listen to and respond with great respect to your Lordships—
My Lords, I will not follow that. The House is master of its own procedures, but it is up to those who wish to intervene to do so when they wish to give advice to other Members.
What I would say with respect to the noble Lord, and indeed to all those who have spoken—whether they were here at the start or were not—is that I understand that noble Lords on the other side are here because they have a specific concern. The concern or perception that I have heard expressed is that they believe they may be unduly affected. Having heard what has been said, I will endeavour to provide further reassurances and to explore the matter further. If noble Lords opposite and in other parts of the House are ready to do so, I am determined to continue the discussion on these topics beyond today—and indeed imminently, as we move over the next few days.
Could I just clarify what the Minister has said? First, I am not sure that he has yet satisfied the House—he certainly has not satisfied me—on whether the issue being addressed by this is a hypothetical future situation or whether the Government have examples of where this problem has arisen.
Secondly, he talks about further discussion and consultation. I know that that is the sort of process that the Minister would wish to follow, but I was slightly surprised to receive an email from an organisation that is not by any means political but is taking an interest in the implications of the Bill, to tell me that its information—I am not part of the usual channels—is that Report on this Bill is going to start two weeks today. If that is the case, when are all these discussions going to take place?
My Lords, the noble Lord is a very experienced Member of the House and he knows that a Minister at the Dispatch Box is not in the usual channels. The duty of the Minister at the Dispatch Box is to be here and respond to the House, as I have explained, whenever and at whatever hour. I gave an undertaking at the start of Committee that I would sit here for every minute of every hour of every day of this Bill’s Committee, Report and Third Reading—whatever the procedures are in respect of the House—and I will do so. I do not think that I want to proceed on that issue.
I have sought to explain the rationale behind this clause, and I have heard the concerns expressed. As far as discussions are concerned, I am sure that the noble Lord can liaise with his own Front Bench and representatives, but—as I think the noble Lord, Lord Collins of Highbury, would accept—my door is open, has been open and will be open on this matter.
So that is the position. I repeat that the clause is not intended to target trade unions. However, I understand the perceptions and practical concerns that have been expressed. In light of that, I hope that the noble Lord will accept that the clause should stand part, at least at this point. I undertake to read very carefully what has been reported in Hansard to reflect on the debate, and I hope to have further engagement on this matter. In that light, I hope the noble Lord will withdraw his amendment.
One of the problems that we have had, and I raised this at Second Reading, is the failure to properly consult. The Trades Union Congress and TULO, the organisation of Labour-affiliated trade unions, were not consulted in the first round, unlike other charities and third-sector organisations. It was only after being pushed by me, in a meeting that the Minister organised, that meetings took place, rather late in the day.
The clause has serious consequences. The Minister talks about the definition of joint campaigning being well-established, but where is it in law? Where can we actually ensure that it will not change and then be captured? That is the problem that the clause has, and I suspect he has been unable to reassure anyone in this Chamber about what it may end up doing. We will have to return to it strongly, and I expect that before Report the Minister will not just meet me but will have proper consultations with the TUC and TULO because it is important that these organisations are properly consulted on something that will have such a huge impact.
My Lords, I gave that undertaking in my speech. I accept the reproof but I say to the noble Lord that we have started those contacts—I was not personally involved because I had other engagements at the time but I am responsible for the Bill in this House, though not for its progress up to this point—and, as far as I am concerned, we will continue to do so.
But timing is of the essence, and we are being pushed. There is a reason why this House’s scrutiny of the Bill is so important. How long did the other place take to scrutinise this clause? No time at all; in the two hours allocated to the Bill, this clause was not included. We can see from Hansard that they had no debate on these clauses, but it is a fundamental issue that affects our democracy. I know the Minister is concerned about the time we may take over these issues, but I assure him that I will stay up all night and all day until we get proper consideration of these issues. It is not right that this measure is pushed through without proper consultation and consideration. In the meantime, I will not push my Motion to a vote.