Why peers should support two Harries amendments. Lord Harries amendments for Tuesday 28 January

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Scot Dickerson
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1 Commission on Civil Society and Democratic Engagement briefing Part 2 of the Lobbying Bill Why peers should support two Harries amendments This briefing sets out the case for two amendments proposed by Lord Harries of Pentregarth. Lord Harries amendments for Tuesday 28 January B1: Please vote for a further compromise on the issue of constituency regulation. C1: Please insist on the staff costs amendment. Creating the opportunity for MPs to properly consider the Bill The House of Commons has not had the usual opportunity to consider this Bill. Peers voting for Lord Harries amendments will create the time MPs need to assess the arguments and evidence for further changes. Ill-informed and rushed Commons stages The Lobbying Bill was introduced to the House of Commons as deeply flawed draft legislation. There had been no consultation with the Electoral Commission or NGOs. There was no pre-legislative scrutiny. It was condemned by all relevant cross-party select committees. It was rushed through the House of Commons stages. It started on the day after MPs returned after summer holidays, and each stage proceeded with the minimal interval. Government amendments were not tabled with enough time for MPs and stakeholders to respond. The Commission on Civil Society and Democratic Engagement was set up to undertake the consultation Government should have and to propose changes to the Bill, and following concern that the Commons debates were illinformed. The Commission set up a nationwide consultation of NGOs and of stakeholders including the Electoral Commission. It s first report was published on 29 October 2013, after the Commons stages had completed. MPs therefore did not have the opportunity to hear the evidence brought forward by the Commission. 1

2 Ill-informed and rushed Commons consideration The gap between the deliberations in this House and the deliberations starting in the other place tomorrow, are frankly ludicrous. They do not enable the other place to take into account the very careful and deliberate thoughts that have been given in this House, not least by the Right Reverend Lord Harries of Pentregarth and his very impressive Commission, which most people in here agree went in great detail into this Bill, produced some excellent amendments. Baroness Shirley Williams, 21 January 2014 Important changes were made to the Bill in the House of Lords. However again MPs have not had time to consider the changes and the remaining problems with the Bill because the Commons consideration of the Bill was the very next day after Lords Third Reading. The Commons consideration debate was characterised by quite significant inaccuracies about the impact of the Bill and of the ways that the Bill will impact on charities and campaigning organisations. Please see separate mythbuster document. Constitutional matters and good law The Upper House has a particular responsibility for the creation of good law and scrutinizing constitutional matters. This Bill is fundamentally flawed in both regards and it is right that peers insists that the Commons considers the matter further. The Bill is about electoral law and has fundamental implications for the way our democracy functions. It is appropriate for Parliament to make decisions about balancing freedom of speech and association with the imperative to ensure elections cannot be bought. But it is only appropriate for Parliament to do so in an informed and considered way - which has not happened so far. 2

3 Staff costs amendment Background Staff costs were already part of non-party controlled expenditure for published materials. The Lobbying Bill proposes to include staff costs for a new range of controlled activity. Charities and campaigning organisations have provided evidence to show this would be bureaucratically burdensome and impossible to implement. These issues are even more complex for groups for whom election work is a small part of what they do. Staff costs are specifically excluded from controlled expenditure for political parties which is equivalent regulation. Political parties have strongly rejected the inclusion of staff costs within their own spending limits, on the basis of how difficult it would be for them to separate staff time between regulated and unregulated work. Staff costs are included for candidates for a very limited period directly prior to the election. The Electoral Commission recommend that staff costs be excluded for the 2015 General Election. Why the amendment is still needed even after Government changes to the Bill The changes made to the Bill at Lords Report and agreed at Commons consideration do not make the process of identifying and accounting for staff costs any easier. The Bill very significantly reduces total spending limits, by 60% in England. Introducing a wide range of additional staff costs at the same time in effect makes the spending limits even tighter. This is particularly problematic for larger spending organisations such as HOPE not Hate and for coalitions of charities and campaigning groups such as Stop Climate Chaos. Explanation of the amendment This amendment is a compromise. It would include staff costs for a subset of controlled activities that are directly relevant to communicating with voters, and excludes difficult to define background staff costs. The amendment does not frustrate Government intentions The amendment retains the Government intention of widening the scope of staff costs in regulated activity so that more of non-party campaigning activity is transparent and is restricted. It does this in a way that is more practical to implement. 3

4 Amendment text Page 57, line 14, at end insert Exclusions of background staff costs 1AA Nothing in sub-paragraphs (3) to (5) of paragraph 1 shall be taken as extending to any expenses incurred in respect of remuneration or allowances payable to any member of staff (whether permanent or otherwise) of the third party. Broad support for the amendment The amendment was tabled by Lord Harries (CB) and had cross-party support including from Lord Cormack (Con), Lord Tyler (LD) and Baroness Mallalieu (Lab). It was passed with cross-party support at Lords Report stage: 236 for 193 against. We still think that, in principle, staff costs should be regulated both for political parties and for third party campaigners. However, given the practical challenges we would support exempting all campaigners staff costs from the rules for the 2015 UK Parliamentary general election, on the basis that the approach could be re-considered in the post-legislative review. If all staff costs are not excluded, we think that amendment 45 offers some advantages over the current position in the Bill. Electoral Commission Report Stage Briefing, p.5 The Political and Constitutional Reform Committee supported the amendment in its eve of Commons consideration report on 22 January Seconding staff to political parties and candidates This amendment does not have any bearing on the situation that some politicians have expressed concern about in which a third party may want to second staff to work for a party or candidate. That is not a situation regulated by third party rules. Such costs would either count towards a party s spending limit, or a candidate s spending limit depending on the timing and nature of the secondment. Ensuring appropriate enforcement, rather than changing the rules, is the appropriate response to such concerns. 4

5 Constituency regulation amendment Background The Lobbying Bill introduces constituency-level spending limits for non-party campaigning. Ministers argue this is important for transparency but also to avoid concentrations of campaign money unduly influencing candidates chances. However, most charities and campaigning groups are not set up to account for spending on a constituency basis, and this would require major changes on accounting processes. Some campaigning activities cover multiple constituencies or cannot easily be allocated to one or another. The Electoral Commission warned that the proposed constituency regulation may be unenforceable except in extreme cases. The spending limit for constituency regulation is 9,750. Why the amendment is still needed even after Government changes to the Bill Government removed the provision in the Bill for a spending cap of 5,850 in the four to five weeks between dissolution of Parliament and the election. The Electoral Commission said about the removal of the extra period that: "We support Government amendments and which remove the sub-limit on spending incurred after Parliament is dissolved... However, the change does not address our general concerns about the enforceability of the new limits." Electoral Commission Report Stage Briefing, p.8 Explanation of the amendments The amendment means that only activity targeted at specific constituencies is covered not campaigning activity that happens to take place in a small number of constituencies because that is where the members live, or other reasons unrelated to the election. The amendments do not frustrate Government intentions The amendments retain the provision of new constituency regulation - making campaigning activity in constituencies transparent and also introducing tight spending limits. It makes constituency limits more practical and enforceable. 5

6 The Harries amendments respond to Government concerns expressed in the House of Lords and House of Commons. Addressing Government concerns This amendment addresses concerns about an earlier Lord Tyler amendment raised by Ministers and the Electoral Commission: i) Lord Wallace of Tankerness (on behalf of the Government) considered the Tyler amendment to be defective because it did not cover leaflets distributed in public places, such as shopping centers. This amendment includes these. ii) Andrew Lansley criticised the Harries amendment in the House of Commons for not including all regulated activity. The new Harries amendment includes all regulated activity. iii) The Electoral Commission in its briefing pointed out that, although they support the principle of the amendment, the drafting needed work and Parliament s intention should be made clearer (emphasis added): We are concerned that the amendment as drafted and as revised could create anomalies if, for instance, a campaigner contacts a geographically dispersed group of people because it believes them to be interested in a particular issue. The campaigner would then allocate the costs of that activity against the constituencies in which those people live, whether or not the activity appears intended to have a particular effect in those constituencies. If Parliament wishes to narrow the scope of the constituency controls so that they only apply to mailings and unsolicited phone calls, we recommend that this should only apply to campaigning that appears intentionally concentrated in particular constituencies. In the light of these concerns, the amendment restricts the scope of constituency limits to cover only activities which are clearly targeted at particular constituencies to influence voting intentions. There are two tests to be met, of which one is a new test necessary to address the Electoral Commission s point: (a) There is no significant effect in any other constituency or constituencies (this test is already contained in Clause 29 see page 18, lines 15-18), and (b) It can reasonably be inferred that the third party selected the relevant electors and/or households or otherwise distributed the material wholly or substantially to contact electors in the particular constituency or constituencies and not a wider section of the public. 6

7 Without this second test, the anomalies highlighted by the Commission would remain. It would be difficult for the Electoral Commission to produce guidance which was not open to challenge. As a matter of principle, Parliament needs to articulate its meaning clearly, and not leave it to a regulator to guess at. Amendment text The new Harries amendment is a further compromise and no longer restricts the range of activities subject to constituency spending limits. (1) Third party constituency expenditure (a) shall be attributed to those constituencies in equal proportions, or (b) shall be attributed solely to that constituency, as the case may be. (2) For the purposes of sub-paragraph (1), the effects of third party constituency expenditure are wholly or substantially confined to any particular constituencies or constituency if - (a) there is no significant effect in any other constituency or constituencies, and (b) it can reasonably be inferred that the third party selected the relevant electors or households or both or otherwise distributed the material wholly or substantially to contact electors in the particular constituency or constituencies and not a wider section of the public. Page 18, line 24, leave out controlled and insert third party constituency If the amendment is not passed by the Commons The lack of clarity would create problems in enforcing the legislation, as it would be very difficult to establish a criminal offence when the law is ambiguous. The lack of clarity would be likely to have a further chilling effect on non-party campaigning as groups would wish to avoid falling foul of wider and unclear rules. Without the second test a group, for example opposing further European integration, based in Manchester and only campaigning in the Greater Manchester area would have to include all their material within constituency spending limit even though they are not intentionally targeting constituencies. However, a well-funded campaign taking the same position could send exactly the same literature out across most constituencies in higher volumes without having to comply with the constituency limits. Guidance would not be able to alleviate this. Broad support for the amendment The original Harries constituency amendments were passed in the House of Lords: 7

8 248 for 222 against. On balance, we support this amendment, which should make the new constituency controls more practicable for campaigners and more enforceable. Electoral Commission House of Lords Third Reading Briefing, p.3 Further information For further information about the Commission on Civil Society and Democratic Engagement, please visit or contact Clare Hammacott: 8

Transparency of Lobbying, Non Party Campaigning and Trade Union Administration Bill 2013 House of Commons Report Stage and Third Reading

Transparency of Lobbying, Non Party Campaigning and Trade Union Administration Bill 2013 House of Commons Report Stage and Third Reading Amendment briefing 9 October 2013 This briefing provides our views