My Lords, in speaking to this amendment, I will also speak to Amendments 159E, 159F, 160D, 160E and 160F. As this is the first time for
me to speak about this part of the Bill, I should declare an interest as honorary president of Capability Scotland, a charity that is concerned with provision of services and support for multiple-handicapped people.
Controlled expenditure requires two elements. The first is that the activity resulting in the expenditure must be within the definition of what is controlled. Secondly, the expenditure must reasonably be regarded as intended to promote the electoral success of one or more registered parties or candidates within certain categories. Section 85 of the 2000 Act is restrictive in its scope. It confines controlled expenditure to the production or publication of election material made available to the public or sections of the public. In that situation it would be relatively easy to assess objectively whether the intention of the published material was to promote the electoral success of individuals or registered parties. However, Clause 26(2) of the Bill extends the meaning and scope of controlled expenditure by expanding the activities from the mere production and publication of election material to include the various activities listed in Part 1 of new Schedule 8A to the 2000 Act added by Clause 26(2)(a) and Schedule 3. These activities include market research, public meetings, rallies and media events.
Many organisations with a legitimate interest in the democratic process indulge in such activities at different times. For example, charities and others may be involved in campaigns throughout the year, highlighting the plight of those in our society who are poor, homeless or otherwise disadvantaged, including the disabled. These campaigns might intensify at Christmas and throughout the winter months when the consequences of having no shelter or hot food are more acute. At other times, they may concentrate on the inability of the poorer members of society to afford heat, light or other basic essentials. These activities are not associated with elections and they are not confined to the year immediately preceding an election.
A campaign to make poverty history in our society might suggest various solutions directed at unemployment, the level of wages and benefits, the price of energy or other measures. It might involve organising public rallies and media events. If such a campaign started before the commencement of the regulated period before an election, expenditure could be incurred with impunity, but one might expect such a campaign to continue during the regulated period in the lead-up to an election. If that happened, different issues would arise.
If the organisers considered that there was a risk that their activities might be interpreted as having an intention to favour a candidate or a party at the forthcoming election, they would be obliged to incur the cost of the administrative burden imposed by the Act of having systems and personnel in place to comply with the Act and make the return. If they genuinely believed that they were not covered by the Act, but ultimately found out they were wrong, as I will explain later, they would face prosecution and a criminal penalty.
Similar consequences would apply to local campaign groups concerned about a local issue, such as the threatened closure of their hospital, the route of HS2
through the constituency, fracking or the existence or otherwise of wind farms. If no party or candidate had policies about such matters, the local campaign group, or the charity, as the case may be, could spend money without fear of contravening the rules about controlled expenditure, but what if—and this is a point that was raised on the previous amendment—a candidate with such policies emerged after the start of the regulated period or an existing candidate adopted them in the course of his campaign? The intention of the campaign by the local group or charity would not have altered, but the organisers would risk prosecution if after that time they continued to incur expenditure without complying with the provisions about controlled expenditure, the reason for that risk being that it might be argued that a subsidiary intention of the campaign was to procure the electoral success of the candidate who had adopted it, even if he or she were not mentioned. While such an intention may not be the aim of the organisers of the campaign, and might not even be in their contemplation, it may be a consequence of their campaign. In that situation, if an objective evaluation of the case resulted in the conclusion that such an outcome could reasonably be regarded as a subsidiary intention of the campaign, the consequence would be a criminal conviction and a financial penalty for those responsible for the campaign.
The risk of such consequences might well induce organisers of a campaign to abandon it in the regulated period prior to an election. That cannot be desirable. We should encourage participation in the democratic process, particularly in the period immediately prior to an election. We should not threaten with prosecution campaigners who are genuinely concerned about social, local or other issues of genuine concern to the electorate.
I accept, of course, that there have to be some controls but where the scope of controlled activity is being extended as widely as in this case, the control should be proportionate and we should make some allowance for the genuine subjective intention of campaigners. We can achieve that balance by restricting controls and consequential offences to expenditure where the principal purpose of the expenditure is to achieve electoral success for candidates or parties. This is the aim of my Amendments 159A, 159E, 159F, 160E and 160F.
If the noble and learned Lord the Advocate-General does not favour this solution, perhaps a more acceptable one would be to introduce a statutory defence to any criminal offence, similar to my Amendment 160D. If that route were preferred, I accept that it would necessary to redraft the clause as it currently includes a reference to the principal amendment. Without such a defence, we risk criminalising campaigners who are genuinely concerned about issues that matter to the electorate and do not seek to promote the electoral success of a candidate or candidates or a political party or parties. I beg to move.