My Lords, I regret the position that we seem to have reached now on constituency limits. Your Lordships’ House may recall that I proposed a very simple amendment on this issue in Committee and on Report. I suggested then that only election materials directed at electors or households in particular constituencies, or telephone calls to electors in those constituencies, should count under the specific constituency limit. That was very simple.
The Government argued that that approach was too simple and excluded too much activity, particularly the potential for handing out leaflets in a town square. The noble and right reverend Lord, Lord Harries, has been diligent in attempting to deal with that problem, but I think that in the process we have been sent round in a circle. Sending information to a household is an easy test, because it is easy to know where a household is and therefore in which constituency its occupants are likely to vote. However, handing out information in a public place is different, as has been indicated, because people move around and could be from all sorts of different constituencies.
In the amendment in the name of the noble and right reverend Lord, Lord Harries, we are faced with a further test: can it 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? In other words, did the organisation, in doing what it was doing, mean to do it? That is quite a difficult question for anyone to answer, let alone the Electoral Commission. I am still not convinced by that and I am particularly not convinced about it in relation to election materials that are sent to households. It is perfectly clear that such materials would be constituency campaigning, and no extra test should need to be applied for such campaigning to count under a constituency limit. So this is a muddle.
The Bill as it stands says that,
“the effects of controlled expenditure are wholly or substantially confined to any particular constituencies or constituency if they have no significant effects in any other constituency or constituencies”.
I had hoped that the issue of so-called “significant effects” could be done away with—it is extremely difficult to adjudicate on that—but neither the amendment nor the Government’s position appears to do so. The amendment adds the additional test I referred to just now, and I certainly do not think that it helps in terms of clarity and transparency.
I want to put on record again my continuing concern that in raising the threshold for registration, which was welcome on a national basis, we have got ourselves into a further muddle on the application of constituency limits. This is a classic case of unintended consequences resulting from a late-stage concession.
Mr Andrew Lansley, the Leader of the Commons, put this very clearly in the other place just last week:
“Campaigners may now spend the entire constituency limit of £9,750 at any time during the regulated period, or just in the last few weeks before the election if they so wish. That makes it less restrictive and easier to comply with”.—[Official Report, Commons, 22/1/14; col. 352.]
What he did not acknowledge is that campaigners who are spending entirely in just one or two English constituencies could still spend up to just below that limit—£9,749.99—in each of the two constituencies and not even register because the threshold is £20,000.
A trade union, a maverick millionaire with an anti-European bee in his bonnet or, even, another group wanting to influence the outcome in a marginal constituency could spend serious money without anybody knowing until it was too late. So much for transparency and accountability. Under the radar, such intervention could take place without either the amount spent or who paid for it being disclosed. That remains a mistake, an unfortunate loophole weakening these measures in the Bill.
At Third Reading, I set out a simple way in which to improve the position so that those campaigning in one or two constituencies would have to register at £5,000 or, if that was thought to be too low, at least at a lower figure than the £9,750 spending limit. That would have made for the continuum that I described in that debate, where registration occurs at point X and the limit on spending occurs at point Y. The Electoral Commission, on whose advice we have to rely in matters of this sort, specifically advised that X and Y should not be in the same place, and I very much regret that the Ministers in both Houses have not been able to address that point.
These issues can really now only be dealt with in guidance from the Electoral Commission, and I wish it luck with that. As my noble and learned friend Lord Wallace of Tankerness said earlier, we look forward to some very substantial round-table discussions, and I hope I may be able to play a small part in them because I think this is an extremely important issue.
The introduction of a constituency limit on non-party expenditure is an extremely important principle, and really the most important measure in Part 2. I am sure Members of the other place, when they are faced with very considerable sums of money being invested in trying to unseat them, will agree with that. I welcome it for the fact that it is here in the Bill, even though I think there were two improvements that could still have been made to it. I believe those issues will now be central to the post-legislative review of the Bill after the 2015 election. I look forward to that review .