I apologise; I misrepresented the point. What happens if the group maintains its campaign and one party suddenly comes on board and, presumably, one party breaks rank and retreats? The Electoral Commission’s guidance is clear that if a party or candidate subsequently adopts a campaigning organisation’s policy, it will not be caught unless the campaigning organisation draws attention to the fact or increases its campaigning as a result. In addition, a group must be reasonably regarded as intending to procure electoral success. If at the time a party or candidate does not have a policy on the subject of the organisation’s campaign, it is very difficult to see how it could be seen to be promoting that candidate or the party. Indeed, it would seem to be impossible to objectively argue that a policy campaign by a third party could be intended to favour a party or candidates if those parties’ or candidates’ views on the policy were unknown at the time.
A question was also asked about the scorecard count. A third party setting out a scorecard 11 months before an election could reasonably be regarded as trying to get parties to change their policy, not necessarily to promote electoral success. However, a third party publishing a scorecard a week before election day might be regarded as promoting the electoral success of a party or candidate.
The noble and right reverend Lord, Lord Harries, put his finger on it by saying that many of the groups he has talked to would rather that this was in legislation. On the scorecard issue, I sought to show that there were shades of this. It can sometimes be very difficult if you try to pin it down too much in legislation. Often when we legislate with specific examples—I have heard this on other subjects in your Lordships’ House—we can do more damage and cause more uncertainty by what is left out than by what is there. It does not allow the flexibility to take full circumstances into account.
What has been raised is a perfectly legitimate point for this Committee to express views on. We as a Government should consider whether it is better to have these things set out in statute, subject to the misgivings that I have expressed about inflexibility—once it is there, it takes primary legislation to repeal it—or whether it is better to allow that position to be determined by guidance.
The next paragraph in the report from the Committee on Standards in Public Life states:
“That said, we acknowledge, of course, that in some cases it will be hard to determine whether the advertising and other propaganda undertaken by an individual or organisation other than a political party is or is not intended to affect an election outcome. Ultimately it will be up to the courts to decide in such cases, but one role we envisage for the Electoral Commission”—
which did not exist when this was written—
“is in giving authoritative but not legally binding advice on such matters”.
It would appear that those who set all this in motion some 15 years ago saw giving guidance as a proper role for the Electoral Commission. As I indicated in my opening remarks on the previous amendment, we engage with the Electoral Commission and believe that it would be helpful to have draft guidance available. I also accept—this is something that we want to reflect on—the views that have been expressed in the House that some of this would be better put in primary legislation. That said, as I indicated, there are drawbacks with that as well.
I hope that in that spirit I can invite the noble and learned Lord, Lord Hardie, to withdraw his amendment.