My Lords, in moving Amendment 33A, I will speak also to Amendment 39. I am very grateful to the noble Lord, Lord Blunkett, for putting his name to the first of those. He has emailed me to say that he is very sorry that he cannot be here and has asked me to apologise to the Committee on his behalf.
This is the first amendment that I have moved. I beg the indulgence of the Committee for a moment so that I can briefly explain the background to all the amendments I propose to this section of the Bill. This preamble will serve as a preamble to all the other amendments we will come to on Thursday—Amendments 39A, 45B, 48A and 54A—and I will therefore foreshorten my speeches on that occasion.
As I explained at Second Reading, I was appointed by the Government to undertake the official review of Part 2 of the inelegantly named Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014. Section 39 of that Act required the Government to appoint a person to undertake a review of Part 2 of that Act in the light of the 2015 general election. My report, in the preparation of which I was greatly helped by a tremendous team from the Cabinet Office, was published in March 2016 and entitled Getting the Balance Right.
What is the balance we should seek to achieve? If we all agree that a vibrant civil society is a really important part of a vibrant democracy, in which everyone feels that they have a chance to have their voices heard collectively as well as individually, we need to ensure, on the one hand, that civil society organisations can speak truth to power—power does not always like having truth spoken to it—and on the other that the activities of those organisations are subjected to a proper degree of transparency. That is the balance that my report sought to achieve.
Finally, I make it clear that all my amendments are probing at this stage. I am looking forward to hearing how the Government react to the shape of the amendments I am putting forward before we get to the next stage.
So with that, to horse. These amendments are concerned with what is known as the regulated period. Members of the Committee will be familiar with the regulated period, but for those who are less familiar I will give a very quick summary. The regulated period is the period during which a third party has to keep a total of all qualifying expenses, which are those that can reasonably be regarded as intended to promote a person or procure electoral success at any relevant election. We shall come back to the intent test later, but the Committee can already see that this will not be as simple as it might be.
Accurate data is very important for third-party campaigners, because the total will determine what category of regulatory regime they come under. Nought to £9,999 means there will be no regulation at all. From £10,000 to £19,999 is the new lower tier; and above £20,000 is the tier that exists, which will continue under the Bill and which requires full registration.
The regulated period was set in the 2014 Act at 12 months. The Bill does not plan to change it. There is a strong argument that this is too long a period. It does not reflect the realities of political life outside the Westminster/Whitehall bubble and it imposes a considerable administrative burden on third-party campaigners, especially smaller ones. As such, it might serve to inhibit third-party campaigning unnecessarily.
Let me explain my thinking a little further. It is important to be clear about what the Government’s legislation seeks to achieve and, in consequence, what it seeks to capture. The strategic, overarching approach must be to increase transparency and reduce the possibility of undue influence.
Most third parties tend to have a primary purpose not connected with campaigning at elections. Only a few third parties have been set up solely to campaign, and we were dealing with some of the by-products of that in the amendments that we have just been discussing. I argue that you can divide the activities of a third party into three broadly discrete areas. The first I describe as advocacy, which can be seen as business as usual. This is the work that a charity or voluntary group does year in, year out: the regular pattern of events and activities, such as setting up branches, recruiting people and trying to get some local or national press. In many cases, it is the bread-and-butter purpose of the particular organisation’s existence.
The second part is what I call political campaigning, which comes more directly in the run-up to a general election. It particularly seeks to attempt to influence the wider debate and political process, to shape the form of the debate and hopefully—this is the gold standard—get one of the major political parties to put some aspect of the third-party campaigner’s objectives into the party manifesto. Of course, the targets of this are primarily Ministers, MPs and Members of your Lordships’ House. I argue that people in that particular category should be well able to look after themselves and aim off if they are being unduly pressurised.
The third area is electoral campaigning, which is activity intended to influence people’s voting choices in the run-up to and during an election, at a time when the general public, defined as the people in the saloon
bar of the Dog and Duck or on the Clapham omnibus, are switched on and are thinking about and interested in the political process. So the three key elements can be identified in any campaigning as: when the campaigning is taking place, who the audience is and whether the intent is to influence that audience.
In my view, the regulation of third-party campaigners should be only in respect of electoral campaigning—that is, activity intended to influence people’s voting choices in the run-up to or during an election campaign. It should not be seeking to capture or deal with business as usual advocacy or political campaigning.
So when does the electoral campaigning period begin? In the review, I found little evidence—none, really—of electoral campaigning by third parties a full year ahead of the general election. Such research as there is suggests that, outside the Westminster village, the level of interest among the general public in the campaigning activities of third parties, other than in the immediate period, is very limited. Indeed, you could argue that, if you are doing it, you are probably wasting your money.
So what should then be an alternative period to 12 months? Well, we are exceptionally lucky because we have some real-life examples of alternative periods. The regulated period for the devolved legislatures is four months. My noble friend will no doubt say, “Well, that’s devolved Administrations. It isn’t the same as a national event”. But the regulated period for European elections, when they were held, was also four months, and they were national elections. It is not clear to me why a UK general election should have a regulated period that is three times as long as those required in Scotland and Wales, particularly as I have found no evidence of third-party campaigning abuse in elections in those devolved Administrations with only a four-month regulated period.
That takes me to Amendment 39 first—the other one that I am speaking to—which, quite simply, reduces the regulated period from 365 days, or one year, to 120 days, or four months. In one stroke, the bureaucratic burden on third-party campaigners is reduced, without any reduction in effective regulation, in my view.
But, in the spirit of constructive ingratiation that every Back-Bencher should adopt when he is seeking that the Government follow his point of view, I have also tabled Amendment 33A, which takes a different approach, although it has the same objective of clarifying the position of those third-party campaigners. Proposed Section 89A in Clause 24, on exemptions from restrictions, says:
“No amount of controlled expenditure may be incurred by or on behalf of a third party during a regulated period unless the third party”—
after which my amendment would insert the words
“could not reasonably be expected to have known they were campaigning within a regulated period”.
In other words, you give them a general bye because they could not have known.
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The Government have used the word “reasonably” in connection with the intent test, which is
“reasonably be regarded as intended”
to promote, so there is a nice symmetry of wording here that I hope my noble friend will find attractive. My preference is for the simple one year to four months, but if the Government were inclined to accept Amendment 33A, I should be happy to take half a loaf off the table.
Whichever route the Government prefer, in my view, there is an unanswerable argument for a change to the regulated period, and the need for change has been made more important as a result of the ending of fixed-term Parliaments. I make no comment on the desirability or otherwise of fixed-term Parliaments, but the by-product of having them was to give third-party campaigners increased visibility of the likelihood of a general election coming along. Now, for better or worse, that forward visibility has disappeared. With that, I beg to move.