Moved by Lord Hodgson of Astley Abbotts
54A: After Clause 27, insert the following new Clause—“Guidance by the Commission relating to third party controls(1) PPERA is amended as follows.(2) Omit Part 2 of Schedule 8A (controlled expenditure: qualifying expenses).(3) After section 100 (public inspection of returns under section 96) insert—“100A Guidance by the Commission about third parties(1) The Commission must prepare, and may from time to time revise, a code of practice giving guidance as to the application of Part VI of this Act to third parties, including in particular, but not limited to—(a) the kinds of expenses which do, or do not, fall within Part 1 of Schedule 8A, including what categories of person constitute the “public” for the purposes of paragraph 1(1), (2) and (5) of that Schedule,(b) application of section 85(b) to third parties,(c) the relationship between notional controlled expenditure under section 86 and regulation of donations to third parties under section 95 and Schedule 11, and(d) what types of activities and communications between third parties constitute incurring expenditure in pursuance of a plan or other arrangement where the expenditure can reasonably be regarded as intended to achieve a common purpose under section 94.(2) The Commission must consult the following on a draft of any guidance or revised guidance prepared in accordance with subsection (1)—(a) the Speaker’s Committee,(b) the Levelling Up, Housing and Communities Select Committee of the House of Commons, (c) the Scottish Ministers, so far as the draft relates to the Commission’s devolved Scottish functions,(d) the Welsh ministers, so far as the draft relates to the Commission’s devolved Welsh functions, and(e) a cross-section of persons and organisations representative of third parties within the meaning of section 85(8) of this Act, including civil society groups.(3) As soon as the Commission has prepared a draft code under this section, it must submit it to the Secretary of State for approval.(4) The Secretary of State may approve a draft code either without modification or with such modifications as the Secretary of State may determine.(5) When the Secretary of State has approved a draft code, the Secretary of State must lay before Parliament a copy of the draft either—(a) in its original form, or(b) in a form which incorporates any modifications determined under subsection (4).(6) If the draft incorporates any such modifications, the Secretary of State must at the same time lay a statement of the reasons for making them.(7) If, within the 40-day period, either House resolves not to approve the draft, the Secretary of State may take no further steps in relation to the draft code.(8) If no such resolution is made within the 40-day period—(a) the Secretary of State must issue the code in the form of the draft laid before Parliament, and(b) the code must come into force on such date as the Secretary of State may by order appoint, and the Commission must arrange for it to be published in such manner as they consider appropriate.(9) Subsection (7) does not prevent a new draft code from being laid before Parliament.(10) In this paragraph “40-day period”, in relation to a draft code, means—(a) if the draft is laid before one House on a day later than the other, the period of 40 days beginning with the later of the two days, and(b) in any other case, the period of 40 days beginning with the day on which the draft is laid, no account being taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.(11) In this paragraph references to a draft code include a draft revised code.(12) The Commission must have regard to guidance issued under this section in exercising its functions.(13) It is a defence for a person or third party charged with an offence under this Act to show that any guidance for the time being issued under this section was complied with in relation to Part VI of this Act.””Member’s explanatory statementThis would expand the power for the Commission to produce a code of conduct on what types of expense will be treated as regulated expenditure by third party campaigners at Schedule 8A PPERA, so that it is (i) a duty rather than a discretionary power and (ii) widened to oblige the Commission to provide guidance on other complex areas of election law for third parties, such as the rules around joint spending, and what constitutes a member.
My Lords, I did not intervene in the last serious and lengthy debate. I understood how seriously many Members of your Lordships’ House took the issue. I had some peripheral dealings with clubs from the three major parties during my review and I have to say that the political affiliation was probably rather less important than the quality of the club, its community sense, the price of a beer and the nature of the bingo—all of which are very important—but the weight of political influence being placed on the clubs was not borne out by any evidence I received. That is not to undermine the point being made, but I would not place on the clubs the weight that I heard some noble Lords putting on them in the last hour and a quarter.
I turn to Amendment 54A and I am very grateful for the support of the noble Lord, Lord Blunkett, who I am delighted to see in his place. This is the most important of the series of amendments that I have tabled on the third-party campaigning system. It takes us to the heart of the various concerns about the impact of the present regime on third-party campaigning, in particular—the phrase we have become familiar with, having heard it many times in sittings of the Committee—“the chilling effect” of the 2014 Act.
The problem for third-party campaigners is the lack of certainty in key aspects of the current regulatory regime. There are two particularly important areas. The first—I come back to it—is the intent test. The key phrase—I say it once more—is
“reasonably regarded as intended to promote or procure electoral success at any relevant election”, which is essentially the linchpin of the whole third-party campaigning regime. It is interpreted by the Electoral Commission, which decides whether a course of action infringes that phrase and makes the decision on its own authority entirely. Although I absolutely recognise that the electoral commissioners work hard and successfully to reassure civil society about its fears, and I applaud that, the kernel of doubt and concern remains there to gnaw away at the confidence of third- party campaigners.
When we debated Clauses 14 and 15—I do not want to repeat the remarks I made in those debates—my noble friend the Minister faced very heavy criticism of the extent to which the Bill, as currently drafted, would undermine the independence of the Electoral Commission. As I listened to the debate, the argument seemed to be that the Electoral Commission should be made more independent, given more freedom of action. As I explained in an earlier sitting, I am concerned about such a development. Just as noble Lords did not believe my noble friend would have malevolent intentions, it was argued that he would not be in post for ever, and who could tell who might succeed him and what his successors might do with the powers that the Bill gave them? Similarly, I am not criticising the current Electoral Commission; I make that very clear. I recognise, as I said, that it worked hard with third-party campaigners to reassure them of the practical implications of the intent test. However, the commissioners too will not be in post for ever, and who knows who might follow them?
The noble and learned Lord, Lord Judge, was among those who led the charge and was most critical of the Government in that debate. He and I have made common cause about the inadequacy of the present procedures for scrutinising secondary legislation and I do not resile from that at all. However, the criticism of the Government, if followed through, would create an organisation that would be making tertiary legislation. It would be promoting, making and enforcing regulation in key areas of our electoral system without any vestige of democratic control at all. I argue that this is undesirable.
There is, however, a way to restore this and to restore a decent element of parliamentary—and by parliamentary I mean, parliamentary, not executive—control over the Electoral Commission. This would be achieved by means of codes—codes of practice which have to be approved by both Houses of Parliament. Crucially, as a result, compliance with the code would give a statutory defence, so ending the uncertainty that has caused so much concern about the present regime.
The amendment therefore introduces a new clause that would require the Electoral Commission to prepare statutory codes of practice—powers, by the way, it does not have in the current legislation. The areas to be covered are listed in proposed new Section 100A(1)(a) to (d). Two areas are of particular importance: first, the intent test—the Electoral Commission will be required to produce a code explaining how it proposes to operate that test—and, secondly but no less importantly, we need clarity on what constitutes a member of an organisation. This is important because, once you are a member of an organisation, communicating with you ceases to be a qualifying expenditure for the purposes of the Act. So a third-party campaigner can build membership quickly and have an increasingly wide reach without any commensurately increasing expenditure being imposed on them.
In today’s hyperconnected modern world, it is astonishingly easy and cheap to email hundreds of thousands of people about an issue and put on the bottom of the email, “Please tick this box if you want to be a member”. I regard this as potentially a very dangerous opening, offering, in particular, the prospect of third parties holding views at the outer fringes of our society being able to build up so-called members, who can then be communicated with free of charge. This would offer such groups a campaigning reach far beyond their real level of support. The Electoral Commission currently has a series of categories—including “committed supporter” and “the public at large”—and I am afraid I am far from convinced that these stand- alone terms will be able to meet the pressures of an age of ubiquitous social media. We need a code for what constitutes “the public”—namely, the opposite of a member—and this is provided for in proposed Section 100A(1)(b).
The rest of Amendment 54A is concerned with process, laying out a list of the groups that have to be consulted by the Electoral Commission: the devolved Administrations, on matters concerning them, and a representative sample of civil society groups. The Electoral Commission must then provide a draft and present it to the Secretary of State, who may approve the code or modify it. If he chooses to modify it, he has to explain why he has done so, so that the difference between what the Minister and the Electoral Commission think is clear. A series of procedures for obtaining the consent of both Houses is then laid out in the latter part of the clause. Crucially and importantly, proposed Section 100A(13) reads:
“It is a defence for a person or third party charged with an offence under this Act to show that any guidance for the time being issued under this section was complied with in relation to Part VI of this Act.”
Amendment 54A could provide, first, a high degree of certainty and, therefore, reassurance on certain key issues of the regulatory regime and, therefore, to third-party campaigners. Secondly, by using secondary legislation, it offers the opportunity to keep regulations up to date, reflecting changes in society, social media, public attitudes and campaigning methods, thus reducing the dangers of evasion. Thirdly, it introduces a proper degree of democratic or parliamentary control of the Electoral Commission, thereby perhaps offering the Government part of a way out of the troubles in which they have found themselves in Clauses 13 and 14.
It is a common phrase that the law is too important to be left to the lawyers. I submit to the Committee that electoral law, which goes to the heart of our democracy, is too important to be left to an untrammelled Electoral Commission. I beg to move.
My Lords, I put my name to the amendment of the noble Lord, Lord Hodgson, in full knowledge of his long-standing commitment to plurality and his excellent report on the previous restrictions placed on third-party campaigning, including by charities, where he rightly pointed out that the chilling effect that has been referred to is as much a danger as the detail of what people are expected to do—in other words, the reflection of what people think they cannot do rather than the actual restriction laid down in the law. Codes of practice will be extremely helpful in the future when we have sorted out the Bill and, I hope, eliminated the attack on the Electoral Commission inherent in Ministers taking power over its policy and strategy direction.
Codes of practice are for clarity and enabling people to do what they do best, which is to take part in civil society in a pluralistic democracy, whether they are engaged in the formal political processes that we have debated under Clause 52 or whether they are involved in the political processes that make up a democratic process within a democratic society. That is civil society action. People will be clear as to what is and is not acceptable. They will adhere to those processes and be able to play their full part.
I was going to say that we have long Committee sittings followed by shorter programmed and amendable sessions on Report, but I heard what the Minister said about listening. Let me make it clear in my short contribution that Committee sessions of this House are valuable only if they impact on whether the Government are prepared to change their mind, and listen to and reflect on the expertise, knowledge and experience of Members of this House. Otherwise, we are spending hours and hours, with some people here into the early hours of the morning, not being listened to by anyone. I therefore appeal to the Minister to fulfil what he committed to in the debate on the previous group and be prepared as a senior Minister, a Minister of State, to take back to colleagues the deep disquiet over a number of areas in the Bill. Otherwise, I hope that this part of the legislature, this House, will stall the Bill. Parts of it are a fundamental attack on our democratic processes.
However, this set of amendments moved and spoken to by the noble Lord, Lord Hodgson, is a clarification and strengthening of the power while bringing about greater accountability in relation to the operation, as opposed to the destruction, of the Electoral Commission. I hope that the Minister will reflect on that.
My Lords, I rise to speak in favour of my Amendment 54 B. There is a lot to commend in the amendment of the noble Lords, Lord Hodgson of Astley Abbotts and Lord Blunkett. It is a serious attempt to establish a new accountability framework for the Electoral Commission. I am conscious that we had some debate in the previous group on the issue that I want to touch on. With the benefit of hindsight, it might have been part of that discussion, but I should like to make other points.
My amendment proposes inserting a new clause in the Bill that would require political parties to report on the amount of controlled spending incurred by third parties as targeted spending on their behalf. This is a relatively simple and straightforward amendment in an extremely complex area. It would increase transparency for voters and other campaigners by making it easier to identify in spending returns how much targeted spend has been incurred.
I tabled this amendment for two main reasons. The first reason is to highlight the importance of the report Regulating Election Finance, produced by the Committee on Standards in Public Life. There have been a number of comments and contributions on that report, and I am delighted that the noble Lord, Lord Stunell, is in his place. He is too modest to say it, but for me this was an exemplar of how to bring forward a balanced, informed and measured approach to the complex and fast-moving world of election finance.
The report was published on
A crucial part of the report are the key principles the committee identified that should underpin our electoral process in a representative democracy and its financing. Those principles are extraordinarily strong, and worth repeating: fairness, open to all, transparency, confidence and trust, simplicity and clarity, accountability, and, finally, an independent regulator. If we test this Bill against those principles, I think we will find it in many ways wanting.
The second reason for tabling the amendment is that, as has already been said, it represents a better and fairer approach to third-party funding than that proposed in Clause 27. It would bring transparency, and it is based on recommendation 21 of the committee’s report, which, as others have said, builds on the Electoral Commission’s own 2015 report and the report by the noble Lord, Lord Hodgson. It is a simple and, I believe, practical measure to increase transparency, and I hope the Minister will support it. However, the better, and the right, thing to have done was for the Government, if they needed, to pause this Bill and take proper account of the full recommendations of the committee’s report.
My Lords, we on these Benches hope that the Government will be willing not only to listen but to accept both of these amendments, either in their current form or in some reshaped form. They would be constructive and non-partisan additions to the Bill.
I recall that the review undertaken by the noble Lord, Lord Hodgson, came about as a result of what some people felt were the botched efforts of the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act, which was rushed through Parliament. Of course, if this Bill becomes law in anything like its current form, I should warn the noble Lord that he—and perhaps not only he but other Members of the House too—will be called on several more times to do post-legislative scrutiny on various aspects of it.
We differ from the noble Lord in one or two respects. We would have fought for Parliament against the executive prerogative of the monarchy in the Civil War; that is where my party comes from. We are therefore in favour of the Electoral Commission being responsible to the Speaker’s Committee much more than to the Secretary of State. We will want to consider and discuss between now and Report whether the Speaker’s Committee too needs to be further reinforced, and perhaps slightly reshaped. Apart from that, we strongly support where both amendments come from, and we hope that the Government will be willing to incorporate them in further discussions on the Bill.
My Lords, the noble Lord, Lord Hodgson, made a distinguished contribution, based on his great experience—although I fear that in identifying Conservative clubs he was thinking of Walsall North Conservative Club, which defines itself online as a pub that has gone out of business, rather than the neighbouring Aldridge Conservative & Unionist Club, which defines itself online both as a social club, which it is, and also as “community and government”. That rather makes my point about some clubs—not only Conservative clubs but also Labour and Liberal clubs.
I want to make one brief comment on Amendment 54B and what the noble Lord, Lord Kerslake, said, and will requote one of the principles he identified, which is clarity. In 1995 I was tasked with ensuring that the Labour Party and the trade unions stayed within the law, as it was emerging under the Nolan committee, to which I presented evidence with my noble and learned friend Lord Morris on behalf of all trade unions. Before the law changed, my experience was that clarity was critical. I was able to go to senior politicians—my noble friend Lord Blunkett was an exception because he was always exemplary on all financial matters, but not everyone was because politicians are often more enthused about their political campaigns than by exactly how they are funded—and one of my roles was to ensure that everything was within the spirit of the law and within the law we already had on trade union funds. Clarity was critical.
It would probably be a best seller if I cited some of the spectacular examples, but there were some ferocious rows. I explained to people that they were not having that money because the way they were trying to get it was not technically legal, despite the fact that the way they wished to spend it was clearly for social good. Politicians have a weakness when it comes to money, especially when it is to do with elections. Clarity is critical.
When the law changed, and treasurers were about to be elected in my local party, when I was a Member of the other place, I always used to say, “You’ll go to prison if you get this wrong.” That quickly weeded out those who wanted the position of treasurer for some kind of political enhancement and left a tiny number who were prepared to ensure that the finances were in order. They were awkward to me, because I kept saying “That’s perfectly legitimate”, and they would delay income or expenditure because they wanted to be absolutely certain.
That is the beauty of what the noble Lord, Lord Kerslake, is suggesting: a designated treasurer with a duty that they will apply with draconian consequences for breaching the law. I strongly commend this approach and this principle as one of the levers to ensure that transparency is delivered. I think this is rather a good proposal.
I will get advice from my noble friend on that afterwards.
I am concerned about third parties campaigning in a free democratic society and unintended consequences. My background is as a human rights campaigner, on civil liberties and civil rights in particular. In my experience the nature of those campaigns is that you are always having to side with the opposition of the day—not just the Labour Party but any opposition of the day. Just google me and you will find lots of reasons for my noble friends to be cross with me. I am not expressing hurt feelings on behalf of the Labour Party on this occasion. I am concerned about the ability of human rights organisations and civil society to function in the future, regardless of who is in power.
While I commend the sentiment behind these amendments, I worry about whether the fundamental problem that they attempt to respond to is the one touched on by my noble friend Lord Collins in the last group, which goes back to PPERA itself: the concern about what joint campaigning is and how one is touched by these third-party controls. I totally understand successive Governments’ concerns about third parties who are proxies for political parties in a way that we have seen in other jurisdictions, where one sees even TV commercials funded by so-called civil society organisations that are proxies for political parties. That drives a coach and horses through any kind of regulation, and I understand that, but, at the same time, as someone who was the director of the National Council for Civil Liberties in 2014 when the legislation came in, I can testify about the chronic anxiety that it caused among civil rights organisations that were really not party political in any sense that would be understood in this place or the other place.
I support the instinct behind the amendments. The Minister has been so kind as to say that he wants to drill down a little more before Report. In whatever time is available in his discussions, I ask him to bear in mind that there are ongoing anxieties about that fundamental problem. It is wonderful to have guidance, but, as we always do with legislation when there are ambiguities and concerns, we say, “Well, we’ll have this regulator who will help. We’ll have this guidance that will help after the fact”—whereas, if we are really talking about rights, freedoms and the constitution, ideally we would have sufficient clarity in the primary legislation itself.
We have heard from trade unions, with their particular link with the Labour Party, but we could be talking about all sorts of charities, NGOs or grass-roots campaigns, from the Countryside Alliance to Liberty, which I worked for. I listened carefully to the Minister on the previous group. This is not about climate catastrophe or poverty—except “It isn’t until it is”. It is not an issue until it seems to be the biggest issue of the day and people think that it is then capable of toppling a Government or making an opposition party. I am looking for that level of comfort and—the word has been used a number of times—clarity, not in just for future guidance but in current law.
My Lords, I welcome this. I recall the days when the noble Lord, Lord Mann, was telling general secretaries what they could and could not do. There were occasions in meetings where he was the bad cop and I was the good cop—I do not think that things have changed much, really.
The noble Lord talked about clarity and my noble friend Lord Blunkett talked about certainty. That is the nub of this, and I support the proposals of the noble Lord, Lord Hodgson. It is not that I do not trust the Electoral Commission or what it may or may not do; it is because the current system relies on guidance that could change overnight and is not certain. My trade union colleagues behind me know that statutory codes of practice are often used as a way of creating certainty, to ensure that there is a clear defence, as the noble Lord, Lord Hodgson, put it. So the noble Lord and my noble friend Lord Blunkett are therefore absolutely right.
There is a problem at the moment with the regulation, and because there is doubt and uncertainty, the result is “Don’t do it” and inaction. Therefore, this sort of proposal, where we create a statutory framework that could be properly scrutinised—again, I support that— would create clarity and certainty, and therefore encourage civil society to participate in our democratic process. So I support the noble Lord.
My Lords, it has been an interesting short debate. I would be working against the Government’s interests if I was tempted into a philosophical discussion about tertiary law and clarity and certainty. I am quite happy to have that discussion outside the Chamber. However, there are important points raised here. Also, the amendment tabled by the noble Lord, Lord Kerslake, as he acknowledged, rather logically fell into our previous debate. I have undertaken to reflect on the debate on Clause 27, and I will add the remarks from the noble Baroness and the noble Lord, Lord Kerslake, into that. There are existing rules on targeted spending for third-party campaigners—placing a cap on the spending—directed at one political party unless the party authorises further spending, in which case it must already report on that.
With due respect to the noble Lord, Lord Kerslake, I will focus on the very interesting interventions—not that his was not, but on the even more interesting interventions—of my noble friend Lord Hodgson of Astley Abbotts and the noble Lord, Lord Blunkett, in the back corner there, whom I thank for his barbed kind words. I hope that the barbs will not be needed as our reflections go forward.
My noble friend Lord Hodgson, as I think is acknowledged on all sides of this House, has considerable expertise in this area. Someone used the phrase that he “speaks for pluralities”. His Amendment 54A would remove a permissive power on the Electoral Commission to prepare a code of practice on the expenditure controls for third-party campaigners and replace that with a requirement on the commission to produce a code of conduct. It then further specifies the contents of such a code.
Even in this short debate I heard noble Lords, including the noble Lords, Lord Mann and Lord Blunkett, using the words “clarity” and “certainty”. While the Electoral Commission has a statutory duty to ensure compliance by political parties and third-party campaigners and does provide extensive guidance to support this, we are certainly not opposed in principle to encouraging the Electoral Commission to improve the current guidance that is on offer. The Government does and will continue to encourage the commission to work with groups that have specific concerns and to aid their understanding of the rules. That is important. Whether we need something further in legislation to ensure that we get the right outcome on guidance—a point that my noble friend is pushing at in his amendment —will need further consideration.
I look forward to engaging with him on this point ahead of the next stage of the Bill, because in debating terms and potentially in practical terms he has raised issues of importance, and the Government will consider carefully what he has said. In that light, I ask him to withdraw his amendment.
My Lords, I am grateful to noble Lords who have spoken in favour of my amendment: to the noble Lord, Lord Blunkett, for his support, and to the noble Lord, Lord Kerslake, who was kind enough to veer off his own track to give approval to this.
This is a new car which I am taking round the track for the first time to see how it corners and whether it will crash. We have not crashed, but I will say that there are some improvements that can be made to the car. The noble Lord, Lord Wallace, referred to procedure and whether guidance should come via the Speaker’s Committee to the Secretary of State. What sieves it goes through and in which order are still to be decided, and I quite understand that this could be improved or changed. They key thing is that there must be parliamentary approval from both Houses as the final step. The noble Lord, Lord Mann, and I will sample the delights of the working men’s clubs of Walsall and Aldridge at some date in the future.
The problem with putting codes of practice into primary legislation is that they cannot be changed. We are already suffering because PPERA and the 2014 Act have been left behind by events. Therefore, being stuck with a phraseology that has become increasingly out of date has to be balanced against the ability to move on a bit with changes over time through statutory instruments, which have parliamentary approval. Admittedly, this is not very satisfactory but they are discussed. Guidance is not the right word. There has to be a statutory code to give the protection referred to in the amendment.
I am grateful to the noble Lord, Lord Collins of Highbury, for his support and to the Minister for his further consideration. One can ask for no more. I have brought the car back to the starting point without crashing, which is pretty good.
The use of the term “permissive power” is the problem because it trammels freedom of action. Once how it will work has been written down, one cannot suddenly say, “Oh, we don’t quite like that bit after all”. This is the heart of the problem with third-party campaigning. The Electoral Commission wants freedom to dance around and third-party campaigners want some certainty as to what is happening. The best way to achieve this is via parliamentary approval of codes produced by the Electoral Commission. I beg leave to withdraw the amendment.
Amendment 54A withdrawn.
Amendment 54B not moved.
Clause 1: Voter identification