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House of Lords

Tuesday, 21 January 2014.

2.30 pm

Prayers—read by the Lord Bishop of Ripon and Leeds.

Health: Flour Fortification

Question

2.37 pm

Asked by Lord Rooker

To ask Her Majesty’s Government what is their assessment of the public health impact of the current programme of fortifying flour; and whether they have plans to extend the programme.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, the Government considered the health impact of the current programme of fortifying flour as part of the Red Tape Challenge review of the bread and flour regulations and concluded that it does deliver public health benefits. We are currently considering the case of mandatory fortification of flour with folic acid and will reach a decision when we have considered new data on the folate status of the population due early this year.

Lord Rooker (Lab): I thank the Minister for his Answer but ask him to speed up that review. Is he aware of the major new peer-reviewed research from the Wolfson Institute, which surveyed half a million women over a 10-year period and found out that folic supplementation is going down? It concluded that the current policy is failing and creating health inequalities. We know that now. Is this not a real worry?

Earl Howe: My Lords, I am not aware of that study but I shall of course make myself familiar with it. I do not doubt that it will feature in the consideration that we give to this issue, which I can assure the noble Lord we will do as speedily as we can. It is important to say that adding to the list of fortificants would be a major step and we need to be absolutely sure that it is the right one.

Baroness Gardner of Parkes (Con): My Lords, is it not a fact that in the United States bread is already fortified not only with folic acid, which of course prevents spina bifida in newly born children, but also vitamin D? At present there is a great deal of concern here that none of us is getting enough vitamin D due to the lack of sunlight in winter. Would it not be a good thing for us to have that benefit? Can the Minister also assure me that if this applies to wheat it will cover wholemeal as well as ordinary loaves, as we recommend people to eat those?

Earl Howe: On my noble friend’s last question, we are slightly jumping ahead of ourselves because we need to decide on the principle before we decide on

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which types of wheat might be fortified. However, I recognise my noble friend’s main point. Indeed, the Scientific Advisory Committee on Nutrition, in recommending mandatory fortification of flour with folic acid, sought to highlight the benefits of fortification as well as the risks. It was a balanced recommendation. We value it and we will look at the advice very closely indeed.

Lord Krebs (CB): My Lords, what has the Minister’s department made of its evaluation of folic acid fortification in the many countries that have implemented it, including the United States, as has already been mentioned, Canada and Australia? What has been the balance of risk and benefit in those countries?

Earl Howe: I am aware that we have looked at the experience of other countries, but, as I am sure the noble Lord will accept, we need to take a decision on this that is right for all of our population rather than another country’s population. That is why we want to make the decision evaluating risks and benefits based on the most up-to-date data of the folate status of our own population.

Lord Turnberg (Lab): My Lords, the case for fortifying flour with folic acid is now incontrovertible. It is both safe and effective in preventing spina bifida. I should like to follow up the question of the noble Baroness, Lady Gardner, about vitamin D fortification, as there is a rising incidence of rickets in children, particularly Asian children, and we really should take that seriously.

Earl Howe: The noble Lord is absolutely right. I agree with him that the incidence of rickets is a cause for concern. At the same time, he characterises the case for mandatory fortification as incontrovertible. There are risks that SACN pointed out. Its advice to government stated that fortification of flour with folic acid might have adverse effects on neurological function in people aged 65 years and over with vitamin B12 deficiency. Treatment with folic acid can alleviate or mask the anaemia and therefore delay the diagnosis of vitamin B12 deficiency, which can lead to irreversible effects.

Lord Patel (CB): The noble Earl referred to two things. His immediate answer just now suggested that folic acid levels might interfere with B12 anaemia in older people. That would require a dosage of about 15 milligrams per day; the dosage we are talking about for fortification would hardly reach 1 milligram per day. The risk, therefore, is pretty minimal. Secondly, he suggested in his opening Answer that the folate level of the population might help to devise the policy. How would that help to devise the policy for women in early pregnancy who need the folic acid to reduce the incidence of neural tube defects?

Earl Howe: I am sure the noble Lord would agree that we have to take a decision based on the most up-to-date data. The data that we had prior to this were 10 years old and it is important to take a decision in the context of the nutritional state of health of the

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population. On his first question, all I can say is that the risk to which I referred was considered as part of SACN’s overall assessment and we will draw on that in reaching our decisions on the fortification of flour and give it the appropriate weight that it deserves.

Lord Hunt of Kings Heath (Lab): My Lords, on the issue of up-to-date information, as the noble Lord, Lord Rooker, has said, we now have the Wolfson study, which actually leads that organisation to recommend that all countries should introduce folic acid fortification. The Government already have the recommendation of the Scientific Advisory Committee on Nutrition for mandatory fortification. Yes, it says it should be accompanied by actions to restrict voluntary fortification of food with folic acid for the reasons to which noble Lords have already referred. Why on earth are the Government delaying action on this?

Earl Howe: My Lords, I can only repeat what I said before, which was that taking this step would be a major step by any standards. We must base it on a proper assessment of the risks and benefits. We have some excellent advice from SACN and we need to evaluate that advice fully before taking a decision.

Baroness Hollins (CB): My Lords, does the Minister agree that the public education campaign has failed and that given that most pregnancies are unplanned and that the risk period for low folate levels is in the first 28 days, before a woman is aware that she is pregnant, there is actually some urgency to act?

Earl Howe: My Lords, I recognise the issues raised by the noble Baroness. We will of course take those into account.

Baroness Hayman (CB): My Lords, it is more than 20 years since the MRC study on this issue first had to be abandoned because it was considered inappropriate not to give folic acid supplements to the women who were involved. When the noble Earl reads the latest study, I suggest that he will find it “incontrovertible”, to use the word of the noble Lord, Lord Turnberg. The noble Earl said in December that the Government were looking at this issue urgently. Will they now look to act urgently?

Earl Howe: My Lords, I give the noble Baroness an assurance that we are treating this with suitable urgency. I cannot give her a date as to when a decision will be announced but it will be as soon as possible.

Public Order: Busking and Live Music

Question

2.46 pm

Asked by Lord Clement-Jones

To ask Her Majesty’s Government what assessment they have made of the consistency of proposed legislation on public order with existing policy on busking and live music.

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The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, the new anti-social behaviour powers are designed to protect the activities of the law-abiding majority. The Government are certainly not seeking to restrict reasonable behaviour and activity, and we do not believe that these powers do. Live music and street entertainment play an important role in community life and can generate a positive atmosphere that is enjoyed by all. As a result, these reforms are completely consistent with our policies on busking and live music.

Lord Clement-Jones (LD): My Lords, I welcome that statement from my noble friend but there appears to be a considerable difference between the approach of the DCMS and that of the Home Office to busking. The DCMS has been enthusiastic about deregulating live music. The Home Office, by contrast, is enthusiastic about its new public spaces protection order, which creates new dispersal powers and which could be used disproportionately and pre-emptively by local authorities, if the existing behaviour of some London borough councils such as Camden is typical, by contrast to that of the mayor and the GLA. Can my noble friend confirm that the statutory guidance to be issued to local authorities will ensure that these powers are exercised with proper consideration of the balance between freedom of expression and respect for private and family life, and will also point out the considerable existing body of nuisance and noise-abatement powers which local authorities already have to hand? Should we not be encouraging rather than discouraging busking, which is such an important part of our urban culture?

Lord Taylor of Holbeach: I can certainly give my noble friend the assurance that the guidance will achieve what he and the Government wish to see from it. I do not think that there is a difference across government on this issue. We believe that the tests and safeguards set out in the new anti-social behaviour powers will ensure that they will be used only where reasonable. Where behaviour is having a positive effect on a community, and I see busking as having that effect, it would not meet the tests for the new powers. Instead, the powers are directed against the anti-social minority who give street performers a bad name; I might illustrate them as being aggressive beggars and drunken louts.

The Earl of Clancarty (CB): My Lords, does not the Minister think that Part V of the London Local Authorities Act 2000, which specifically targets busking as being effectively a potential criminal activity and which has allowed Camden Council to impose its draconian policy, should be repealed?

Lord Taylor of Holbeach: I do not intend to comment on the Camden case because it is subject to judicial review, as the noble Earl will understand. However, perhaps I can convey to the House the sentiments of the Mayor of London, who clearly believes that busking is an important part of street life in London. He is keen to encourage street entertainment and live music, not least because of the positive aspect it brings to the life of the city. As I have made clear, the Government

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believe that live music and street entertainment can play an important part in community life. The Government support the mayor’s position.

Baroness Smith of Basildon (Lab): My Lords, I welcome the Minister’s responses and I think that the intention of the legislation is clear, but the noble Lord, Lord Clement-Jones, is on to something about the guidance. We all know that overzealous implementation of legislation can cause problems. Will the Minister respond to the noble Lord’s specific point about making things clear in guidance? When looking at the public spaces protection order, will he also consider guidance for community protection notices and dispersal powers because, with this whole new architecture of arrangements for dealing with anti-social behaviour in the Bill, guidance will be important to ensure that we do not have overzealous implementation?

Lord Taylor of Holbeach: I hope I gave my noble friend a positive response to his request. The Government do not start from the position that busking requires regulation and control. Busking can brighten our lives; local action is necessary only to curb any excesses. I think that noble Lords will understand that that can occur. It is not about top-down government; it is about local authorities using the powers available to them. The guidance will certainly make clear the Government’s position on busking and street entertainment.

Lord Colwyn (Con): My Lords, local authorities and private landowners take different approaches to busking, which can mean that licences are required in some places but not in others. Will my noble friend work closely with local government to clarify the current laws that apply to busking in different areas? I declare an interest as an occasional busker.

Lord Taylor of Holbeach:We have a diversity of talent in this House, and occasionally we have to draw on it. My noble friend makes a very important point: the Government have a role in helping local government to use and interpret its powers properly. The noble Baroness referred in her question to the same issue: making it clear what is considered to be sensible use of powers is a responsibility that the Government can usefully carry out.

Lord Storey (LD): My Lords, the Minister may have heard of an historic music venue in Manchester called Night & Day which, as a result of one complaint, is in danger of being closed down, which would mean that that opportunity for music would be lost. Is not the Minister right when he says that in these cases a proportionate approach should be considered?

Lord Taylor of Holbeach: Yes. My noble friend who asked the original Question introduced the Live Music Act. I pay tribute to him for securing that Private Member’s Bill through this House. It is designed to ease the licensing burden on popular venues. However, we have to allow local democracy to work and people should be entitled, if they find activity to be disruptive, to make that point and have it established whether or

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not it is disruptive. I cannot comment at all on the detail of the Night & Day case. I have never been to the place myself; I have obviously missed out in my sheltered life. None the less, I will listen with interest to the outcome.

Armed Forces: Widows’ Pensions

Question

2.53 pm

Asked by Lord Craig of Radley

To ask Her Majesty’s Government what is the estimated annual cost of allowing all armed forces widows, who choose to re-marry or co-habit, to retain and not forfeit their existing service widow’s pension in line with the provisions in the Armed Forces Pension Scheme 2015.

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con): My Lords, first, I am sure that the whole House will wish to join me in paying tribute to Captain Richard Holloway of the Royal Engineers, who was killed while on operations in Afghanistan on 23 December, last month. My thoughts are also with the wounded, and I pay tribute to the courage and fortitude with which they face their rehabilitation.

The cost of not suspending pensions on remarriage or cohabitation to spouses who survive members of the 1975 Armed Forces Pension Scheme, whose deaths were not attributable to service, is estimated to be in the region of £250,000 per annum; the cost is estimated to be £70,000 per annum in relation to the War Pensions Scheme. Survivors of those enrolled in the current 2005 pension scheme and the new 2015 scheme, when implemented, will retain pensions for life regardless of personal circumstance.

Lord Craig of Radley (CB): My Lords, I associate myself with the Minister’s remarks about Captain Holloway. I also declare an interest as a vice-president of the Forces Pension Society and a member of the Armed Forces Pension Scheme 1975.

Is the Minister in favour of justice for widows—those widows who are trapped or locked into a scheme which is unfair and discriminatory compared with later schemes, which allow the survivor pension awards to be retained for life? Is this not totally counter to the Armed Forces covenant, which is so strongly supported by the Prime Minister and all in the Government? Will Her Majesty’s Government move quickly to remove the discrimination in the Armed Forces Pension Scheme 1975 and the War Pensions Scheme, bearing in mind that there would be no significant cost to the taxpayer, given the Minister’s figures and making allowance for the policing, both intrusive and insensitive, and the complex administration of these schemes?

Lord Astor of Hever: My Lords, there are 10 categories of widow or widower under the Ministry of Defence pension and compensation schemes. I have discussed this very complex issue with the noble and gallant

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Lord. We both agreed that I should place a letter of explanation in the Library setting this all out, which I have done this afternoon.

Defence Ministers have enormous respect for the Forces Pension Society and for the War Widows Association of Great Britain and will continue to work very closely with both of them. Successive Governments have reviewed pensions for life, but changes cannot be taken in isolation from other public sector schemes, including those for the NHS, teachers, police and the fire service, which have similar rules in place for their older schemes.

Lord Rosser (Lab): My Lords, we associate ourselves with the condolences expressed by the Minister to the family and friends of Captain Holloway. His death on active service in Afghanistan is another reminder of the enormity of the sacrifices that continue to be made on our behalf by members of our Armed Forces.

We have had questions before on service pension issues, including the impact of redundancy just prior to the relevant pension qualifying date. If the money is unavailable to ensure that what some would regard as the basic principles of fairness are not overlooked in some cases over service pensions, why is the money readily available to bail out the Secretary of State over misjudgments on, for example, the Joint Strike Fighter and the IT system for Armed Forces recruitment?

Lord Astor of Hever: My Lords, I remind the noble Lord that it is a fundamental principle, which has been applied by successive Governments, including that of the noble Lord, that public service occupational pension terms should not be improved retrospectively for those who are no longer active members of these pension schemes or for their dependants.

Lord Palmer of Childs Hill (LD): My Lords, from these Benches, may I associate us with the condolences expressed by the Minister?

I agree with the Minister that this is a most complicated area of legislation. When you research it, you realise how mixed up, complicated and confused it is, particularly for those people trying to work their way through it. What is the cost in terms of staffing an administration to police the relationship status of service widows? Given this, and given the fact that the Armed Forces Compensation Scheme does not depend on widows remaining single, is it not time to look again at extending the service widows pension to cover all service widows, whatever their subsequent relationships?

Lord Astor of Hever: My Lords, I agree with my noble friend that this really is a very complicated issue, which is why I am placing a letter in the Library, a copy of which I will send to some noble and gallant Lords. The Service Personnel and Veterans Agency checks the relationship status of war widows. This is conducted every two years, looking at a random sample of about 5% of recipients. In 2010, this exercise cost some £50,000. It is a complicated matter for the Government to consider whether to look again at extending the terms of various schemes to cover all

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bereaved spouses for life regardless of subsequent relationships. Nevertheless, Ministers will continue to work closely with the Forces Pension Society and the War Widows Association of Great Britain.

Lord Naseby (Con): My Lords, I declare an interest as a trustee of the parliamentary pension fund. In light of the fact that Her Majesty’s Government have totally turned that upside down through the use of IPSA et cetera, why on earth cannot Her Majesty’s Government listen to the noble and gallant Lord opposite about what is, yes, a complicated scheme—as was the parliamentary scheme—and take some action?

Lord Astor of Hever: I am afraid that I am not sighted on the parliamentary pension fund. However, we are sympathetic to the concerns of the Forces Pension Society and the War Widows Association of Great Britain. The NHS, teachers, police and fire services’ scheme administrators were consulted last year and highlighted their concerns. Should the MoD accede to the retrospective change, the Government Actuary’s Department confirmed that, if all public sector schemes were to change their rules to accommodate this, the cost would be in the region of £3 billion over a 40-year period—the NHS cost alone would amount to about £1 billion.

Lord West of Spithead (Lab): My Lords, I believe that the armed services are different and it is shameful that we cannot look at this. When Governments look at something like this and decide to do something, as the noble Lord says, they can do it. It is appalling that we have people policing these women—and they are generally women—who are now wanting to remarry to live with someone and who will probably have to have a worse standard of living. Certainly, if I died, I would want my wife to have a happy second life. It is appalling and we should do something about it. Can that not be done?

Lord Astor of Hever: My Lords, this is done to protect the taxpayer.

Syria: Geneva II Talks

Question

3.02 pm

Asked by Baroness Falkner of Margravine

To ask Her Majesty’s Government what is their assessment of the future of the Assad regime in Syria, in the light of the Geneva II conference talks.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con): My Lords, the purpose of Geneva II is to implement the Geneva I communiqué. This calls for the establishment by mutual consent of a transitional governing body with full executive powers. Any mutually agreed settlement will mean that Assad can play no role in Syria’s future. The Government will continue to do everything we can to maximise Geneva II’s chances of success.

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Baroness Falkner of Margravine (LD): I thank my noble friend for that reply. She has answered part of my Question, but I will persevere. Given the findings of Sir Desmond de Silva and his team of 11,000 executions in a single location, which were systematic, ordered and directed from above, according to the team, can the Minister tell the House whether the Government foresee an outcome at Montreux which would be satisfactory in terms of a transitional Government? Will the Minister tell the House whether the Government are holding talks with the Arab League and the Gulf co-operation council in light of these findings to establish a regional tribunal to try the Assad regime for crimes against humanity?

Baroness Warsi: My Lords, my noble friend once again refers to an appalling atrocity taking place in Syria. This matter has now gone on for many years. We have heard horrendous stories; only last night we heard details of photographs of detainees who had been tortured in custody. However, we come back to the fact that this matter can be resolved only through a political solution. Geneva II is really the only show in town. That is why we are working as hard as we can to make sure that it is a success.

Lord Triesman (Lab): My Lords, I read the report yesterday and I shall not repeat the figures because the noble Baroness, Lady Falkner, has already provided them to the House. There is credible evidence in Sir Desmond’s submission of widespread war crimes. He is one of the most eminent lawyers in the field of international criminal law. He says that the evidence would stand up in any court of law.

The Government often repeat their policy of no immunity. In that light, is it now not unlikely that Assad can travel abroad to a peace conference or, indeed, any other conference without being arrested for war crimes—or, at least, on the allegation of war crimes—as would indeed apply to any rebel forces against whom similar allegations could be made?

Baroness Warsi: My Lords, the delegation of regime representatives at Geneva II is being led by Foreign Minister Muallem, and I cannot see how a successful Geneva II process would mean that Assad or his brutal regime had a future role in Syria. I agree that there must be accountability for the appalling human rights violations that have been committed in Syria. That is why we have been supporting the opposition through, among other things, human rights training to document these abuses, so that one day those who committed them will be brought to account.

Lord Wright of Richmond (CB): My Lords, in our Syrian debate on 9 January I quoted Mr Ban Ki-Moon as saying that it would be “useful” for Iran to be present at the Geneva conference. I expressed my own view, which I still maintain, that it is essential for Iran to be there. Does the Minister accept that there can be no hope of the conference reaching a diplomatic or political solution, or even a partial ceasefire, in the absence of the Syrian regime’s principal supporter, while Saudi Arabia and Qatar, which have poured

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money and foreign fighters into this so-called Sunni-Shia war, while paying lip service to the implementation of the Geneva communiqué of June 2012, make no secret of their determination that there shall be no representation of the present Alawite-controlled regime in any transitional Government? Will the Government persuade our allies, our friends and Mr Ban Ki-Moon to think again at this 11th hour, if there is to be any hope of this conference achieving any practical result?

Baroness Warsi: My Lords, I have said on numerous occasions at this Dispatch Box that the Government have no objections in principle to Iran being involved in Geneva II. However, Geneva II is about the implementation of the Geneva I communiqué, and we do not see how it would be possible for Iran to take part in the Geneva II discussions when it has not endorsed the Geneva I communiqué. Noble Lords will have seen on the news the offer to Iran to take part in Geneva II. It was made by the UN Secretary-General, on the understanding that Iran would endorse the Geneva I communiqué. The endorsement was not forthcoming, and it was therefore appropriate for the invitation to be rescinded.

Baroness Kinnock of Holyhead (Lab): My Lords, I know that the Minister will have supported the calls made by Syrian women for a place at the table at the Geneva II conference. Does she agree that without women’s support and participation, no viable peace agreement can be made—or, indeed, implemented? Does she further agree that Syrian women’s rights must be strengthened and not compromised in any way during the discussions taking place tomorrow?

Baroness Warsi: I agree with everything that the noble Baroness said. That is why the Foreign Secretary has led the call for women to be involved in these negotiations. The noble Baroness will be pleased to know that UN Women will have a delegation at the Geneva II discussions, and it will have access both to the delegations and to Brahimi. There will also be senior women in both the attending delegations.

Mesothelioma (Amendment) Bill [HL]

First Reading

3.08 pm

A Bill to amend the Mesothelioma Act 2014 .

The Bill was introduced by Lord Alton of Liverpool, read a first time and ordered to be printed.

Defence Reform Bill

Order of Consideration Motion

3.08 pm

Moved by Lord Astor of Hever

That it be an instruction to the Grand Committee to which the Defence Reform Bill has been committed that they consider the Bill in the following order:

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Clauses 1 to 4, Schedule 1, Clauses 5 to 7, Schedule 2, Clauses 8 to 10, Schedule 3, Clauses 11 to 13, Schedule 4, Clauses 14 to 38, Schedule 5, Clauses 39 to 45, Schedule 6, Clause 46, Schedule 7, Clauses 47 to 50.

Motion agreed.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Third Reading

3.08 pm

Clause 26: Meaning of “controlled expenditure”

The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD): My Lords, the Government signalled during Report that they would bring forward a number of technical, clarificatory amendments for Third Reading. Amendments 1 and 17 are such technical drafting points. These amendments relate to Amendment 38 debated on Report, which adjusts the code of practice defence for third parties. As I indicated on Report, there were two points of detail we wished to put right. The defence should also apply to a situation where expenditure may have been incurred on behalf of the third party. It should also apply for a charge in relation to a targeted expenditure offence. These amendments do just that.

This group of amendments also includes amendments relating to the use of Welsh translation and the Welsh language. I am not sure whether the noble and learned Lord, Lord Morris of Aberavon, is present, but I will leave it to him and the noble Lord, Lord Wigley, to speak to those amendments. I should just put on record that we are very grateful to the noble and learned Lord and to the noble Lords, Lord Wigley and Lord Elystan-Morgan, for their constructive engagement on this. I think that we have arrived at a satisfactory outcome. I beg to move.

Lord Wigley (PC): My Lords, I apologise that I arrived in the Chamber slightly late due to the crush of noble Lords seeking to leave it. I thank the Minister for the movement that he has made on the interpretation of the amendment that was put down by the noble and learned Lord, Lord Morris of Aberavon. Clearly, the Minister’s intention—and our intention with our amendments put forward earlier—was to ensure that not only the literal translation costs but also the costs of implementing that translation were allowable; otherwise, it would not be meaningful. The Minister has now accepted that principle, for which we are very grateful. It will be welcome in Wales.

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Lord Wallace of Tankerness: My Lords, I should explain for the benefit of your Lordships’ House that it is the Government’s intention to accept Amendment 25 —when we come to it—in the name of the noble and learned Lord, Lord Morris of Aberavon, which meets the points that the noble Lord, Lord Wigley, was talking about.

Amendment 1 agreed.

Clause 27: Arrangements between third parties notified to the Electoral Commission

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94B Effect where arrangements are notified under section 94A

(1) Subsection (2) applies where controlled expenditure is incurred during a regulated period in a part of the United Kingdom—

(a) by or on behalf of a minor campaigner in relation to an arrangement, and

(b) in pursuance of the arrangement.

(2) The expenditure is treated for the purposes of sections 96 to 99A (returns as to controlled expenditure) as having also been incurred, during the period and in the part of the United Kingdom concerned, by or on behalf of any lead campaigner in relation to the arrangement who sent a notice under section 94A(1) or (2) identifying the minor campaigner.

(3) In determining for the purposes of section 94(3)(a) whether a limit is exceeded by a third party during a regulated period, controlled expenditure incurred by or on behalf of the third party is to be disregarded if—

(a) conditions A and B are met in relation to the expenditure, and

(b) condition C is met.

(4) Condition A is that the expenditure—

(a) is incurred in pursuance of an arrangement that has been notified to the Commission under section 94A(1), and

(b) is, by virtue of section 94(6), treated for the purposes of section 94 and Schedule 10 as incurred by or on behalf of the third party.

(5) Condition B is that the third party is, at the time the expenditure is incurred, a minor campaigner in relation to the arrangement.

(6) Condition C is that—

(a) the total of the controlled expenditure incurred during the regulated period in any part of the United Kingdom by or on behalf of the third party, disregarding any expenditure in relation to which conditions A and B are met, does not exceed the limit for that part mentioned in section 94(5), and

(b) in the case of a regulated period in relation to which any limit is imposed by paragraph 3, 9 10 or 11 of Schedule 10 (periods involving parliamentary general elections), the total of the controlled expenditure incurred during the regulated period in any particular constituency by or on behalf of the third party, disregarding any expenditure in relation to which conditions A and B are met, does not exceed the limit mentioned in section 94(5ZA).

(7) References in subsection (6) to controlled expenditure incurred by or on behalf of the third party include controlled expenditure that is, by virtue of section 94(6), treated for the purposes of section 94 and Schedule 10 as so incurred.””

Amendments 2 to 7 agreed.

Clause 28: Changes to existing limits

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(ii) during a regulated period in relation to which any limit is imposed by paragraph 3, 9, 10 or 11 of Schedule 10 (periods involving parliamentary general elections), any controlled expenditure is incurred in a particular parliamentary constituency by or on behalf of a third party in excess of the limit mentioned in subsection (5ZA),”.”

Amendment 8 agreed.

Lord Tyler (LD): My Lords, this amendment seeks simply to tidy up an anomaly created by the government amendments here and on Report. My noble and learned friend informed us on Report last week that the threshold for registration would be £20,000 in England, £10,000 in each of Scotland, Wales and Northern Ireland, or £9,750 if the spending was to take place in one constituency. In other words, the lowest of the spending limits in the Bill—the £9,750 constituency limit—is exactly equal to the threshold for registration if the activity is focused in that constituency.

The Government’s approach is the same as that I took in my initial amendments on thresholds in Committee. However, I was then persuaded by the Electoral Commission, with the very explicit advice that,

“this approach would cause significant workability problems, since in practice campaigners will either remain below the registration threshold or will be in breach of a spending limit”.

It went on:

“We therefore do not support this amendment”.

The very valid point it was making was that, if you need to have a point of registration, it must be lower than the spending limit with which the activity is concerned, so there are two quite separate processes. First, an organisation says, “I am spending X, so I need to register”. Then it goes on to say, “I have now spent Y, so I cannot spend any more”. The commission has said very clearly on a number of occasions that X and Y cannot be at the same level, but that is the effect of the present situation arising from the recent government amendments.

My amendment therefore sets X, which is the threshold for registration if you are spending in just one or two constituencies, at £5,000 and leaves Y—the Government’s proposed constituency limit—at £9,750. This provides the process of spending, registration, more spending, then reaching the limit—which is exactly what the Electoral Commission has indicated is desirable and essential. I therefore hope that the Minister will recognise that, even today, the Electoral Commission is saying that the Government’s amendments in this area are just not quite right. Importantly, they are defective.

3.15 pm

Indeed, citing the exchange we had, the Commission says:

“Ministers suggested that where an unregistered campaigner reaches the limit on spending in a constituency, it must register with the Commission. We do not think the Bill in fact has the effect of requiring registration, although it makes it an offence for an unregistered campaigner to spend in excess of the £9,750 constituency limit”.

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We simply cannot afford to ignore this strong advice from the independent commission, which was set up by Parliament—and is responsible to it—to monitor and police the law. I admit I do not know quite why it disagrees with the Minister because as he and I read the Bill the campaigner would have to register if their spending in a constituency reached £9,750. However, it is really serious if anything is not clear, and this is unclear. It is therefore the responsibility of your Lordships’ House to sort it.

As I said on Report, even if the Bill does what my noble friend intends, it would still leave a position where a limit in the Bill could be reached—or very nearly so—without any expenses return having to be submitted. I cannot think of any other area of electoral law where this is the case. It is necessary for the constituency threshold to be lower than the constituency spending limit. None of that affects the very welcome and desirable changes to the effective national thresholds made by my noble friends on the Front Bench. These changes were desired by all sides and will ensure that smaller, national organisations are not brought within the purview of the legislation. However, it is crucial to get the operation of the constituency limits right. Their introduction is at the heart of what the Bill is for. If we get that wrong, people will ask why on earth we brought it in in the first place. I am sure the Minister will not introduce the red herring of RPA limits which are not relevant because if they were sufficient to deal with this problem much of this section of the Bill would not be necessary at all.

Without the changes I am suggesting, there is not only the workability question raised by the Electoral Commission but an in-principle problem. Somebody could spend £19,499.98 in two English constituencies—£9,749.99 in each—without even registering. I am not wedded to the figure of £5,000, but it is quite a considerable sum for any organisation to which we are currently referring to spend in a particular constituency. If my noble friend wishes to look at it again, it could be £6,000 or £7,000. The key issue is that it must be less than the limit figure. I remind noble Lords on all sides of the House—especially ex-MPs—that there are stringent, carefully monitored constraints on the amount that a candidate can spend and paperwork is required for well below £9,750 from every candidate in every constituency. Leaving things as they are would create a real loophole whereby a campaigner could exert a significant effect on a constituency result without any public knowledge of the spending or the source of the money. Where is the transparency there? This could undermine the whole purpose of the Bill.

On that basis, I hope the Minister can either accept this amendment, perhaps knowing he will need to tidy it up tomorrow in the other place, or undertake to bring forward tomorrow anyway a government amendment in lieu to sort out lines 38 to 40 on page 16. I am sure that the Electoral Commission would support any such change. This is no big policy change: it is just recognition of a chance to get right something fundamental to the operation of the regime which the Bill puts in place. I beg to move.

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Lord Wallace of Tankerness: My Lords, I recognise the strength of feeling with which my noble friend Lord Tyler moved his amendment; indeed, it is one to which he has spoken in the past, and one which he, I and—at some stage—my noble friend Lord Wallace of Saltaire have discussed. We debated this issue last week when the Government tabled, and the House accepted, amendments which raised the third-party registration thresholds to £20,000 for England and £10,000 for Scotland, Wales and Northern Ireland.

An amendment providing for a new “third” registration threshold of £9,750 was also tabled and accepted. If that was not made clear, I apologise. The point has been picked up by the Electoral Commission. Perhaps I may give some clarity. This third threshold has been introduced to provide alignment with the constituency limits. It ensures that a third party, whether or not it is already registered with the Electoral Commission, will have committed an offence if it spends more than £9,750 in a constituency. In other words, if a third party is already registered, it will be subject to the constituency limit, exceeding which will be an offence. If it is not registered and exceeds the constituency registration threshold, it will also have committed an offence.

I hope noble Lords will recognise that this third registration threshold has not been introduced with the same purpose in mind as that which applies to the other registration thresholds. It has not been introduced to bring third parties into the regulatory regime. Instead, its principal purpose is to ensure that the offence of exceeding the constituency limit operates as intended. For this reason, the Government do not believe that there is a need for a registration threshold lower than the constituency limit.

I hear what my noble friend says about the need for clarity, and I hope that these words have brought greater clarity. I can also tell your Lordships that the Electoral Commission will make very clear in its guidance the operation of the various registration thresholds so that campaigners are left in no doubt about their responsibilities. I hope that the fears which my noble friend expressed on Report, that it would not be possible to keep account of what a third party was spending in a constituency, are resolved by this.

Moreover, the Government have spent a significant amount of time listening to the concerns of campaigners. Perhaps I should address my noble friend’s suggestion of a £5,000 limit. He said that £9,750 is a significant amount. We took seriously the representations made by campaigners, organisations, the commission chaired by the noble and right reverend Lord, Lord Harries of Pentregarth, and other Members of your Lordships’ House. One of the largest criticisms the Bill received, which was made abundantly clear to us, related to the registration thresholds. They were originally set at £5,000 and £2,000 in the Bill but the Government tabled an amendment last week to raise these to £20,000 and £10,000. This major concession was made with the intention of reassuring campaigners that the Bill would not seek to promote the principle of transparency by imposing onerous and unnecessary burdens on third parties. It was a direct response to the debates in and outside this House and I thank again all those who contributed to them. The increased thresholds

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mean that small campaigners need not worry that they will be unduly burdened by the Bill’s reporting requirements. The thresholds have been set at a level such that those campaigners who spend only small amounts of money will effectively be excluded from the regime.

I totally accept that this is a judgment call. I hear what my noble friend says about spending up to £9,750 but I also think it was my noble friend himself who made the point in our first Committee sitting that greater transparency goes hand in hand with a greater administrative burden and regulation. We have sought to try to strike the right balance. With regard to constituency spending, we believed that the lower threshold of £5,000 could risk capturing exactly those small local campaigners who have been so clear regarding their concerns about the impact that the Bill would have on them. It was not our intention to do so, and we certainly do not want to unpick some of the important work—

Lord Campbell-Savours (Lab): The noble Lord, Lord Tyler, made clear in his contribution that the Electoral Commission was concerned about the lack of clarity. The noble and learned Lord is not answering that point. Is the commission simply to be ignored?

Baroness Williams of Crosby (LD): Perhaps I may add to the point made by the noble Lord, Lord Campbell-Savours. The amendment of my noble friend Lord Tyler very much simplifies the administration. It sets a clear limit—rather clearer than the percentages in the original Bill. Given that, given the real problem about bureaucracy and fights with transparency in the Bill, and given that all of us appreciate the major changes made already, would the Minister not consider the advantages of both clarity and transparency in accepting this amendment?

Lord Wallace of Tankerness: Both interventions raise the same point. I say to the noble Lord, Lord Campbell-Savours, that I tried to explain how the £9,750 registration limit comes into play, but I also went on to indicate that the Electoral Commission, in its guidance, will make very clear the operation of the various registration thresholds, including this one with regard to the constituency limit, so campaigners should be in no doubt. In response to that and to my noble friend Lady Williams, I have a lot of sympathy with the point, but the figure of £5,000 is better than a percentage. I do not want to embark on the theology of the percentages because they run through the Bill, but the figure itself will appear in the guidance from the Electoral Commission.

One of the concerns about the administrative burden is that smaller organisations could be caught up. It may be that in one particular constituency there is one constituency issue with which a small campaigning group has become engaged. If we set the limit at £5,000, they may find suddenly that they have to put in place a bureaucracy and administration to deal with that. The higher limit of £9,750 would probably address such concerns, which is what we want to try to ensure. It is often so when you have an individual campaign in an individual constituency. I accept that there is no perfect answer to this. It was a judgment call as to

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whether we should keep the limit as low as £5,000 or, having listened to those who thought that was too low for individual constituency cases, whether it might be possible to raise the sum. For that reason and to strike that balance, we thought that £9,750 was an appropriate amount. Therefore, I invite my noble friend to withdraw his amendment. I give way to the noble and learned Lord, Lord Morris.

Lord Morris of Aberavon (Lab): My Lords, I apologise for having misread the grouping of my amendment as scheduled. I will now make a brief comment. I understand that the Minister has referred to it already and to what my attitude is.

In our previous debate on Report on the costs to third parties of Welsh-language publications, which I thought to be excluded from the ceiling on third-party expenditure, I welcomed the helpful comments of the noble and learned Lord, Lord Wallace, which were in the same vein as those made in Committee by the noble Lord, Lord Gardiner of Kimble. The failure to be aware of how well used the Welsh language is in campaigning, in documents and in many other ways, has become obvious. It is very different from the time, long ago in the 1960s, when I was a young Transport Minister struggling with officialdom to meet the demand for Welsh forms and licences. As the noble and learned Lord, Lord Wallace, said, the oversight goes back to the 2000 Act. If this short debate does nothing else, it will remind policymakers and draftsmen that the Welsh Language Act 1993 was passed and that there was a sea change in the use of the language.

The noble and learned Lord, Lord Wallace, indicated that I went too far in seeking to extend the excluded costs beyond the payment to a translator. I understand that argument, but an organisation could publish a modest amount of literature in English and flood the electorate with Welsh material a hundredfold bigger. My main point remains that, on a narrow interpretation of Amendment 25, an organisation might be inhibited from actually producing Welsh material. In my view, you have to produce paper to be able to translate it, and I argued accordingly. I believe that the Minister was then taking a more restricted view. However, the noble and learned Lord, Lord Wallace, said that there was not much between us and that we should try to reach a consensus without creating loopholes whereby much more material was produced. I suggested that, in the short time available, the Government might seek the views of the Electoral Commission.

When I returned to west Wales late on Friday afternoon, I was encouraged to receive a telephone call from the noble and learned Lord, Lord Wallace, from Edinburgh, for which I thank him very much. That was indeed a long-distance negotiation. I kept the Welsh Language Commissioner in Cardiff informed. I understand that the Electoral Commission has been consulted following my suggestion and has agreed to the new form of words. The amendment has been drafted by parliamentary counsel, to whom I am grateful.

3.30 pm

I would therefore be very interested in the guidance that the Minister will give regarding the interpretation of this amendment. The words “in consequence of”

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can have a wide connotation. If it is a wide connotation we have no fears, but if it is narrow and restricted the problem will remain. For example, I was e-mailed in the past few days by, I believe, a representative of an organisation that had to publish its reports bilingually. The full cost of its recent annual report—design, print and second-class postage—amounted to £9,508. The translation cost was £835—about 9%. It believes that the full cost of the bilingual translation was 50% of the total. It would appear that while 9% would be discounted on a narrow interpretation of this amendment, 41% could not. Therefore, the Minister’s guidance on this amendment is crucial; otherwise organisations will be inhibited from providing Welsh-language material, which is a mischief that we and, I believe, the Government —and certainly the Welsh Language Commissioner—seek to avoid.

The Minister reminded me of the review that will take place on the workings of the Act. If this consensus does not work—I hope that it will—it may be necessary to take a further look at the matter.

Lord Wallace of Tankerness: My Lords, it may be helpful if I respond to the points made by the noble and learned Lord. I had already indicated that the Government are willing to accept Amendment 25. The noble and learned Lord, along with the noble Lords, Lord Wigley and Lord Elystan-Morgan, raised this important issue on Report. It is the case that costs should not be limited to the fee of the translator but should include other costs that arise as a consequence of that translation. We believe that Amendment 25 achieves that aim. It certainly enjoys the full support of the Government. All costs incurred as a consequence of the translation of materials to or from Welsh will not count as controlled expenditure. For example, when a three-page leaflet in English is translated into Welsh and becomes a six-page document, the additional costs of printing and paper will not be counted as controlled expenditure.

There was a general consensus when we debated this in the past. Certainly the Government do not wish to see a situation in which a campaigner could increase their effective spending by clever use of materials in different languages. That is not a result that any of us wanted. We believe that Amendment 25 achieves the right balance between excluding costs in connection with translation without creating the loophole. I think that we have struck the right balance, but as the noble and learned Lord said, there will be a review after the 2015 election. If some practical difficulties arise in the course of it, that matter will almost certainly be discussed; it would be appropriate to discuss it in the context of that review. I hope that that gives the noble and learned Lord the necessary reassurance.

Lord Morris of Aberavon: I am most grateful to the Minister for his help. I shall not press Amendment 26.

Lord Tyler: If I may return to Amendment 9, my noble and learned friend made the very fair comment that this is a judgment call. It is not just my judgment with which he has a problem; it is the judgment of the

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Electoral Commission. I shall read again what it said, as I do not think my noble and learned friend covered this point. It said previously that if a registration threshold is identical to a limit, there is a problem. It said that,

“this approach would cause significant workability problems, since in practice campaigners will either remain below the registration threshold or will be in breach of a spending limit. We therefore do not support this amendment”.

That is precisely where the Government’s amendments have left us.

As I also said, I am not wedded to the figure of £5,000. If it were necessary, we could go up to £8,000. The key point is that there must be a gap between the registration threshold and the limit. That is not my advice but the advice of the Electoral Commission. That is its judgment call. Therefore, I must invite my noble and learned friend to think carefully before this element of the Bill is considered by our colleagues in the other place tomorrow—as it will be, since there will be government amendments that they will be addressing—as to whether there is not some way that we can deal with this very serious problem. On the basis that I still regard this as an important judgment call—one on which I think my noble friends and I differ, the Electoral Commission being on my side—I am happy for the time being to withdraw this amendment.

Amendment 9 withdrawn.

Clause 29: Constituency limits

Amendment 10 agreed.

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(3) 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.”

Lord Harries of Pentregarth (CB): My Lords, I recognise the great importance of constituency limits, and believe that there should be real restraints in place to stop large sums of money distorting an election result at constituency level. There is therefore no disagreement about the purpose of this clause. However, as the original draft did, the current version has grave drawbacks.

First, in its briefing before Second Reading, the Electoral Commission said in effect that it was unworkable and unenforceable. Its exact words were that, even if it were given extra resources,

“it will be challenging to obtain robust evidence to determine and sanction breaches in specific geographical areas, for example, regarding the effects of a leafleting campaign or mobile advertising in different constituencies ... it is likely to be difficult to demonstrate that a breach meets the necessarily high test for using a stop notice to intervene to halt campaigning activity”.

Secondly, campaigning groups have pointed out many times that for the most part they are not organised on a national basis, and it would be a huge administrative burden to divide up national expenditure on constituency lines.

Thirdly, a number of campaigns—for example, against a hospital closure or a motorway extension, let alone HS2—cross a number of constituency boundaries. It would be difficult to allocate expenditure in a transparent way that could be policed by the regulator. With a view to keeping constituency limits, but making them more workable and enforceable, the noble Lord, Lord Tyler, brought forward an amendment on Report, but withdrew it in the hope that the Government would bring forward their own amendment to meet these major concerns. In the event, the Government have not done this. I have therefore tabled this amendment, which builds on the concerns of the noble Lord, Lord Tyler, to take into account the point made by the Minister in his response. It also takes into account legal advice to make the wording more precise, clear and therefore workable.

The fundamental principle behind this amendment is to capture, for the purpose of controlled expenditure, activities that can be clearly monitored, costed and enforced. This means,

“election material … which is addressed to electors whether addressed to them by name or intended for delivery to households”.

This was the amendment of the noble Lord, Lord Tyler. I have added the phrase,

“or otherwise distributed within any particular constituency or constituencies”.

This is to meet the point made by the Minister, who said:

“A third party could therefore freely distribute leaflets by hand in a town centre, or, indeed, in shopping areas in different parts of a constituency, in the knowledge that, because they are not being

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delivered to voters’ homes, the associated costs need not be accounted for in that constituency’s limit”.—[

Official Report,

15/01/14; col. 302.]

So, under my amendment, that activity would be captured and would count towards the constituency limit.

The second activity included in the amendment is,

“unsolicited telephone calls … made to … electors or households … which can reasonably be regarded as intended to ascertain or influence their voting intention”.

Sub-paragraphs (2) and (3) proposed in the amendment provide a more detailed definition of what is meant by targeting one or more constituencies. In principle, activities would be subject to constituency limits where the distributional contact is “wholly or substantially” due to their location in one or more particular constituencies. This avoids mailings based on general issues becoming subject to constituency limits where the location of recipients is primarily chosen because they are affected by an issue, or have expressed a concern about it, rather than on an electoral basis. These mailings may be subject to controls on a national level even if they are not subject to the constituency-specific limits.

The amendment before the House today differs from Amendment 52 as tabled on Report by the noble Lord, Lord Tyler, and others in that it would include material distributed other than by delivery to addresses, such as through distribution in shopping centres, and in that it provides a more detailed definition of what is actually meant by targeting one or more constituencies. My proposed new sub-paragraph (3)(a) is, I think, uncontroversial in that it simply repeats wording already contained in Clause 29. Proposed new sub-paragraph (3)(b) is a response to the response of the Electoral Commission, which, in an earlier briefing, said:

“In principle, we support amendment 52, tabled by Lord Tyler and others … We see benefits in defining the scope of activity covered by the constituency controls more narrowly than in Part 2 of the Bill generally. For example, costs relating to material sent to specific addresses can be identified and evidenced with some confidence”.

However, in its further briefing for Report, while reiterating its support in principle for the amendment, the commission was concerned about general campaigns on an issue and how costs associated with them would be allocated to each constituency:

“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”.

Sub-paragraph (3)(b) proposed in the amendment addresses that point, in relation to both telephone calls and leafleting, much more carefully, because it tries to define what is meant by a constituency. In its final briefing, which we received just before this debate, the Electoral Commission says:

“On balance, we support this amendment, which should make the new constituency controls more practicable for campaigners and more enforceable”.

Given the concern this part of the Bill has aroused among third-party campaigners and the concern of the Electoral Commission about its enforceability, and taking into account the additional wording in this amendment to meet the concerns of the Minister and

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of the Electoral Commission, I very much hope that the Government will be able to accept it. I beg to move.

Baroness Mallalieu (Lab): My Lords, my name is also on the two amendments in this group. I start by very briefly saying that, on some aspects of the Bill, the Government have clearly listened and responded positively, for which we are all grateful. That makes it harder for me to say, as I stand up yet again to carp and complain, that I hope that they will not dismiss the words that I have just used. The reality is that the Government are determined to have Clause 29, which I suspect—even if this modest amendment is accepted by the House today—will have little value except to serve as a warning to future Governments tempted to make constitutional changes without first thinking very carefully about them and the consequences.

The constituency limits introduced in the Bill, which, as we all know, reduce the spending limit to £9,750 in the year of an election, do not do that for candidates or political parties but only for non-party campaigners. We were told at the outset that Clause 29 is necessary to reduce the perception of undue influence. That is curious, because there is no evidence—I have not heard any in the course of any of the lengthy debates—to support a claim that there is any such public perception or that the current combination of PPERA and the Representation of the People Act has been in any way ineffective in relation to non-party campaigning so far. There is no evidence that non-party campaigners are currently exploiting the existing law by focusing their spending on a particular constituency. Indeed, no data are presently available on third-party spending by constituencies.

3.45 pm

I appreciate that the Government say, “Ah, well, but this might happen”, and we have heard chilling predictions based on what has happened elsewhere, but the result is a piece of legislation which is a stab in the dark to try to deal with a theoretical loophole. However, the loophole is going to remain wide open because after the Bill is passed there will be no restriction on either candidates or political parties, for which the situation will remain as before. What is to stop a campaign registering as a political party, putting up a couple of candidates and spending the whole of its national limit in one constituency? The answer in the Bill is: nothing.

As the noble and right reverend Lord, Lord Harries, said, unlike candidates and political parties, most non-party campaigns are not organised on a constituency basis, so the administrative impact on them will be huge. It will require new record-keeping and accounting systems, which may well cut across their existing ones. It will certainly deter many of those with limited resources, which most small campaigns have, from speaking up at election time and campaigning, which should be their right.

This will entail serious headaches of apportionment for those involved in cross-constituency campaigns, but nothing like as great as the headaches that the Electoral Commission will suffer before it has to provide

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guidance for a whole range of possible aspects of constituency campaigning instead of the rightly limited and targeted ones set out in the amendment. What will it say of a rally aimed at a particular constituency but held in the park over the boundary in the next-door one, in the safe seat, where no further spending is intended? What guidance will it give about the meeting that draws people from a number of constituencies; for example, in a campaign to save a local school or hospital with a catchment area that crosses boundaries? What will it advise about the travelling battle bus, with its posters, going back and forth across constituency boundaries? The answer to all those questions at the end of all our debates is: who knows?

What the campaigners make of the Bill, with its disproportionate administrative burden for them and the petty restrictions it imposes, is nothing to what the Electoral Commission will have to try to deal with at election time: the burden of countless allegations from opposing campaigns in constituencies, which the Electoral Commission itself says are likely to be unresolvable,

“within the timescale of an election”.

Apparently, no reassurance or adequate provision is anticipated to enable it to carry out the necessary investigations of those complaints even after polling has taken place.

None of this touches on the ease with which some of the proposed restrictions could be bypassed. I have not yet put my mind to it but I am sure that others will. As I say, what of the rally targeted at the marginal constituency which takes place in the park within the neighbouring safe constituency’s boundaries where no other spending is proposed? Instead of requiring the Electoral Commission, which faces the nightmare task of preparing guidance once this Bill passes, to consider and cover all these possibilities, surely it makes more sense to concentrate the constituency limits on the direct approach—the leaflets, telephone calls and “push-polling”, about which we heard, some of us for the first time, from the noble Lord, Lord Gardiner, earlier—aimed at the constituents in that seat. That is what this amendment does.

As the noble and right reverend Lord, Lord Harries, said, the Electoral Commission supports this amendment; indeed, he read out its words. It has played a part in approving the drafting. I hope that the Government will support it and, if a vote becomes necessary, that the House will.

Lord Cormack (Con): My Lords, I shall not detain the House for more than a few moments. I put my name to the amendment for all the reasons that the noble and right reverend Lord, Lord Harries, and the noble Baroness, Lady Mallalieu, so splendidly and lucidly outlined. I will underline just one point, which was touched on by the noble Baroness in her concluding words. We have established in this country an Electoral Commission. It surely makes no sense to fly in the face of the commission and make its work more difficult and more complicated when it will have a difficult enough task monitoring the election in May 2015. My noble and learned friend, who has been extremely helpful and has listened with care, has come back to us with a number of improvements to this very unsatisfactory Bill—he himself has made it much more satisfactory

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than it was when it first came before your Lordships’ House—but I urge him to go just one step further and accept the good sense that is contained in this amendment, and to bear in mind that it has been in part drafted, as the noble Baroness said, by the Electoral Commission. We should listen to its sage advice and incorporate this amendment in the Bill.

Lord Martin of Springburn (CB): Does the noble Lord envisage the third party groups being registered charities? Does he see any inhibition on a third party group being a registered charity?

Lord Cormack: I suppose that the answer to that question, which is a perfectly reasonable one for the noble Lord, Lord Martin, to ask, is that some would perhaps be eligible but others would not. We know from what we have debated in this Bill that not every such body can become a registered charity; it depends on what the aims are. It is possible that some could, but certainly not all of them.

Lord Tyler: My Lords, in respect of the comments made a few moments ago by my noble friend Lord Cormack about the Electoral Commission, perhaps I should put on the record that I sit on an informal cross-party advisory group for the Electoral Commission. It is not a pecuniary interest, but it means that I take very seriously its advice.

As the noble and right reverend Lord, Lord Harries, said, Amendment 11 builds on my own amendment on Report last week, and on Amendment 170A in Committee, and I welcome the fact that it is still here for our discussion. However, I believe that too much building has taken place, and I regret to say that I think that the lawyers have been too clever by half. The purpose of my amendment was to simplify drastically the operation of the constituency limit. I wanted to do away with any need for anyone to work out what did or did not have a significant effect on whom. That was the previous test, which I thought was extremely ineffective and very difficult for small organisations to address without great bureaucracy.

In my estimation, if election material that can reasonably be regarded as seeking to promote or procure the electoral success of a party or candidate has been sent directly to an elector in a constituency, it should be counted under the relevant constituency limit. That seems to be a very simple test. Likewise, if unsolicited telephone calls are made to ascertain or influence voting intentions, it is easy to know where the people whom you are calling live and to allocate those costs to a constituency limit. The amendment on Report was about simplicity.

However, my noble and learned friend the Minister made a compelling point on Report last week. He said that materials could be distributed within a constituency other than by delivering them directly to electors’ homes—they could be handed out in town centres, for example. The noble and right reverend Lord, Lord Harries of Pentregarth, has rightly tried to meet that point in proposed new sub-paragraph (1) of his amendment, but the complication of considering whether materials handed out in a town centre are trying to influence a constituency result has led him and his

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advisers to complicate the amendment with proposed new sub-paragraphs (2) and (3) of the amended schedule. Therein lies a problem.

The cumulative effect is to ask those campaigners—many of them small operations, as we have been constantly reminded—to consider their spending against not one test, as I advocated last week, but three. First, there is my test, which I have already given: are the phone calls and election material directed at a particular elector or household? That is easy. Then we have in this amendment, secondly: does the material have a significant effect just in the constituency to which it was sent? Who can tell? When can they tell? Perhaps they can tell only after polling day. Therein lies another problem. Then there is the third qualification: can it reasonably be inferred that the third parties selected the electors in order to contact electors in that constituency,

“and not a wider section of the public”?

Who will adjudicate on that and when?

I do not know how one can be sure of either of the latter tests, either in terms of the Electoral Commission and its very proper responsibilities, to which my noble friend Lord Cormack has just referred, or of the organisations that have been in touch with us over the past few weeks. I can see that it may be necessary in relation to the narrow issue of handing out leaflets in a town centre. After all, leaflets handed out in the town square of my old North Cornwall constituency would almost certainly be directed at North Cornwall’s results and voters, but leaflets handed out in Trafalgar Square might not be directed only at voters in the City of London and Westminster.

That is a problem—one brought about by the Minister’s legitimate concern about the distribution of leaflets in a town square. If we had more time for drafting, I would be able to find some additional tests, but only for this additional activity of handing out leaflets rather than for all deliveries that could take place. It is a rather complicated point and I apologise for that to Members of your Lordships’ House—but it is an important one.

As the amendment is drafted, it means a loophole is created, permitting direct communication with voters outwith the constituency limit because it could somehow be deemed under sub-paragraphs (2) and (3) of the amended schedule that the materials sent to them were not really supposed to influence the constituency result. I do not buy that, and at this stage it leaves a real lacuna. If you write to a voter in a constituency to promote or procure the electoral success of a party or candidate, I am confident that you are trying to promote or procure their electoral success in that constituency. That is a simple rule, and one it would be simple for campaigners big and small to follow.

At every stage of the Bill, from Second Reading right through to Report last week, I have been concerned to simplify and clarify the requirements placed on campaigners, reflecting what they—the campaigners, who are charities and other organisations—have said consistently to me and my Liberal Democrat colleagues in both Houses, and no doubt to many other Members of your Lordships’ House. None the less, I regret the position we are now in since I have pursued this issue right from Committee.

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I return to the point made by my noble friend Lord Cormack: the Electoral Commission still says that it has concerns about the enforceability of a constituency limit. There needs to be a constituency limit. A revised amendment along these lines would make that more effective and much easier to enforce. Combined with the sensible changes to the constituency threshold that I outlined in the debate on the previous group of amendments, the whole regime would be much tighter and more workable, which is what the Bill sets out to achieve.

Following up on the point made by my noble friend Lord Cormack, I promised to refer to the advice given to us by the Electoral Commission. At the end of its advice to us for today, referring to Amendment 11, it said:

“We think this amendment would reduce this problem, but in practice it will still often be difficult to obtain adequate evidence of a breach at a constituency level and deal with it before polling day”.

That is an extremely important point. To that end, I hope that my noble and learned friend the Minister will respond positively to this amendment, even if it means that some simplification must be achieved in the other place tomorrow.

4 pm

Lord Harries of Pentregarth: The noble Lord knows that I value simplicity even more than he does. Would he not agree that it was right to try to respond to what the Minister said about the distribution of leaflets, and that if you were doing that, you had to try to define what was meant by focusing on a constituency or influencing the voting intentions of people in a constituency? Would he not also agree that, while there was, of course, a qualification at the end of the last advice from the Electoral Commission that there were probably difficulties remaining, the difficulties with this Bill are now far less than they were originally or even, perhaps, with his own amendment at an earlier stage?

Lord Tyler: My Lords, in response to that, I certainly agree that the Bill is greatly improved and I pay tribute to the noble and right reverend Lord for the amazing amount of work that he and other noble Lords have undertaken to achieve that purpose.

I regret very much the speed with which we have moved from Report to Third Reading and that we did not have a genuine opportunity—we only had a comparatively few hours yesterday—to look at this together. I regret even more that any amendments passed today, whether government amendments or others that are passed by your Lordships’ House, will be considered by the other place within 24 hours. The short period for discussion of any necessary improvements is very unfortunate. Had his amendment simply brought in the point raised by the Minister about leafleting, and therefore stuck rigidly to the simplicity of the first provision in his amendment, I would be much happier about it.

Baroness Williams of Crosby: My Lords, I intervene briefly in this debate because I am struck time and again in the exchanges in this House by the endless pursuit of perfection in an area where I do not think

21 Jan 2014 : Column 594

that perfection can be achieved. We have to accept that the best compromises that we can get are the best that we can do by this Bill at this late date. I know that it reflects the failure of pre-legislative scrutiny and I know that it reflects the lack of consultation, but given that we are where we are, I think that the recent amendments put forward—not least the ones by my noble friend and those by the noble and right reverend Lord, Lord Harries of Pentregarth—further improve the Bill. We should be pleased with having produced that effect as the matter goes to the other place.

I completely accept what my noble friend has said that it is a great shame, given the lack of pre-legislative scrutiny, that the gap between the deliberations in this House and those that are starting in the other place tomorrow is, frankly, ludicrous. It does not enable the other place to take into account the very careful and deliberate thought that has been given in this House, not least by the noble and right reverend Lord, Lord Harries of Pentregarth, and his very impressive commission, which most people here agree went into this Bill in great detail, produced some excellent amendments and really gave us the opportunity to say that the House of Lords has made a constitutional contribution of the kind for which it is distinguished in a large range of legislation.

I do not want to detain the House, but I share the view that there are certain limitations on the whole issue of dealing with leafleting and all the rest of it. I also recognise that what has come out of this is the best attempt we could make to simplify an extremely complex Bill and to keep as largely as we can the concept of constituency limits.

I have the greatest respect for outstanding intelligence, but I think that, in what the noble Baroness, Lady Mallalieu, said in her defence of the position she would like to see, she went a bit far. I think that she should have been a bit more fair about the extraordinary efforts made by Ministers in this debate to try to meet some of the points that she so forcefully made about the need to protect the freedom of speech and expression of the non-party campaigning groups. She is quite right about that, but I think that she was less than generous in her failure to recognise the extent—by raising the threshold and other ways—to which Ministers have tried to meet some of the arguments that she and some of her colleagues have made.

Having said that, I hope that Ministers will be able to pay particular attention to elements of what has been said in this House and to draw the attention of the other place—which means that they will have to work very hard tonight, I appreciate—to the points that have been made here that have not altogether been carried out. Having said that, in a very constrained situation, I think that this House and the commission can legitimately say that they have made a very substantial contribution to making this complicated Bill as good as it could be made.

Lord Martin of Springburn: My Lords, I come in briefly, having listened to the arguments surrounding this amendment. The noble Baroness is quite right that we cannot get perfection, but I wish that we could put on record and give due consideration to the men and women who, when a general election or municipal

21 Jan 2014 : Column 595

elections come, put their names forward as parliamentary candidates. I had the good fortune to be in a constituency where, although I hated the term “safe Labour seat” and cringed whenever anyone said it because the seat had to be worked at, I had significant admiration for those candidates who came into that constituency and said that they were flying the flag for their party—Conservatives, Liberals or the SNP. Remember that many of us get to our feet and talk about the new democracies in Africa and those that used to be behind the iron curtain, but one thing that we have to do as parliamentarians is to teach people how to be parliamentary candidates.

That brings me on to these campaign groups and it is why I asked the noble Lord, Lord Cormack, whether they might be registered charities. The noble Lord, Lord Tyler, said that they might be, if I picked him up correctly. Let me look at the registered charities which embark on campaigns. I know that the situation is different now when a general election is called, because we have got ourselves this five-year election term and people see that we can go right to the wire on a given date, five years from the previous election. In the old days, we used to sit in the tea room in the House of Commons wondering when the Prime Minister was going to go to the country, which meant that the campaign groups could not put the kettle on and say that it would be on a certain date—even those who were closest did not know that. Now that we have this five-year situation, perhaps I might send a message out to people in charities that they should use their heads. If they want to campaign, they have four years and three months, I think, in which to campaign. They should let the general election take its course with the parliamentary candidates because there is a danger here.

Let us take hospital closures, which the noble Lord mentioned. We all hate to see hospital closures, but we know that certain people have sinister reasons for being involved in a campaign, which is to embarrass a certain parliamentary candidate. I have heard the term “putting up score-cards” used during this debate. Some of these campaigns put up score-cards and say, “This is a good candidate, who has campaigned against the closure of a given hospital”. What if it was a Minister in that constituency who was holding office and had another portfolio? That Minister would not be allowed to say, “Don’t close that hospital”, yet some of these campaigners choose not to see that and say, “This is the good guy who is prepared to campaign, while your sitting Member of Parliament has been silent”. We know full well that the reason he or she has been silent may be that they are holding the office of Secretary of State. They could be holding the office of Prime Minister. However, what they have been doing in the background may have been excellent in fighting for the local community and its hospital.

I say to the charities that they really have to watch what they are doing. Every time I give to a charity, I am asked whether I am a taxpayer. If I am, the Inland Revenue will give money to that charity, so a high proportion of what charities are receiving involves the public purse and they should be careful about what they are doing. Also, it might be argued that a campaign body in an area that has no charitable status may call on other groups that have charitable status to support it.

21 Jan 2014 : Column 596

I do not know if I am articulating my point properly, but we must give serious thought to the fact that decent men and women get into these constituencies during the general election and fight in good faith. It is wrong for some of these campaign groups to get involved when the democratic process, such as a general election, is on.

Baroness Hayter of Kentish Town (Lab): My Lords, first, I endorse the words of the noble Baroness, Lady Williams, about the work of what by way of shorthand we call the Harries commission. The noble and right reverend Lord and his colleagues have done both the charity sector and this House an enormous service.

As we have emphasised, we have two problems about the Bill’s brand-new constituency limits, which obviously apply to the wider issues covered by the Bill, which might in theory have an effect in one or more constituencies. The major problem has already been articulated: it is not their intention or purpose, in the words of the noble and right reverend Lord, Lord Harries, but their workability. Charities and campaigners simply do not organise or do their accounts or even think in constituency terms. They focus on the proposed path of the HS2, the flight paths around Heathrow, the ground under where fracking will take place, the location of badger sets or the location of a polluting factory. That is the focus for their work.

For them, therefore, a requirement to record and account for their staff time and expenditure on a whole new geographical basis—indeed, on boundaries which are probably unknown to their accounts department—will be highly problematic. It will add enormous bureaucracy when, as we have said before, the Government are elsewhere trying to reduce red tape. Accounting for expenditure on the basis that it might have an effect on a constituency would require those charities and other groups to develop a whole new financial accounting system, a demand which surely cannot be achieved even by the new and welcome date of September.

Our second concern is also one that has already been mentioned. It is the worry of the Electoral Commission about whether the new constituency limits are enforceable in the timescale of an election. There is nothing worse than having a rule or a law that is unenforceable, because it undermines the rest of the law. The Electoral Commission considers that Amendment 11 would at least reduce its enforceability worries, although it still fears that it would often be difficult to get the information and evidence for any breach of constituency-level spending and deal with it before polling day. Amendment 11, which, as we have heard, limits the new reporting requirements to telephone calls, literature to households and physical distribution in a defined area, seems to us eminently sensible. That sort of spending is preplanned and easy to measure. As the Electoral Commission says in supporting the amendment,

“We see benefits in defining the scope of activity covered by the constituency controls more narrowly than in Part 2 of the Bill generally”.

Given the widespread support across the House for the amendment, I think that the Government would be well advised either to heed the wise words of the noble Lord, Lord Cormack, and accept the amendment or, at the very least, to undertake not to implement

21 Jan 2014 : Column 597

their new constituency rules until after the 2015 election. That would give charities time to think about whether it is possible to do their accounting in that way, and it would give the Electoral Commission the opportunity to sort out those demands on enforceability. I think that the former course is better—to accept the amendment. We certainly support it.

4.15 pm

Lord Wallace of Tankerness: My Lords, I thank the noble and right reverend Lord, Lord Harries, for this amendment and for the opportunity to discuss these issues on constituency limits. It is an issue that has featured in discussions not only today but at previous stages of the Bill’s passage. It is appropriate that we give consideration to this, which members of the commission might see as the outstanding item still to be addressed. The amendments are very similar to those tabled by my noble friend Lord Tyler on Report. My noble friend’s amendment, which we discussed last week, sought to narrow the range of activities which would be considered controlled expenditure for the purposes of constituency limits. Although I made no commitment on the part of the Government to returning to this at Third Reading, I indicated at the close of the debates on Report that we would ensure that officials raised these matters with the Electoral Commission.

I understand the point about simplicity. We have sought in many respects to reduce the administrative burden, but it was clear from the discussions that took place subsequently with the Electoral Commission that there was no technical fix. My noble friend Lord Tyler was almost asking me the same again at the end of his contribution to the debate on this amendment. There was not a technical fix but there might be a policy fix. It is a policy fix that is inherent in the amendment of the noble and right reverend Lord, Lord Harries, which would remove some categories of expenditure from being counted towards the constituency limit. For reasons that I will explain, the Government are unable to accept that there should be that policy switch.

First, I acknowledge that, in moving the amendment, the noble and right reverend Lord, Lord Harries, accepted the principle of constituency limits and sought to address one of the points of concern I had raised with regard to the amendment of my noble friend Lord Tyler. He also sought to address the practical issues raised by the Electoral Commission. In the context of trying to relieve some of the administrative burden—going back to the earlier debate, just to remind your Lordships’ House—it is also important that the original proposals had a limit for the constituency spending and a smaller limit for the post-Dissolution period. There was a much smaller limit for campaigning activity that could be spent between the date of the Dissolution of Parliament and the election. We have taken away that interim threshold, again in an effort to help smaller organisations which may be campaigning in one constituency.

We believe that these amendments would require that any expenditure on election material addressed or delivered to households, and any unsolicited telephone calls made with a view to ascertaining households’

21 Jan 2014 : Column 598

voting intentions, would be attributed to a particular constituency or constituencies for the purposes of the limits. The noble and right reverend Lord’s intention appears to be that only expenditure on such activities should count towards constituency limits. He goes further than my noble friend Lord Tyler did last week to suggest considering the costs associated with the distribution of materials otherwise in a constituency—which was the example I gave. I fully accept the example that I gave of activity in a shopping centre, which clearly would relate to the one activity.

I was somewhat bemused by the point made by the noble Baroness, Lady Mallalieu, when she complained that there was a loophole. It appears to me that if you take away other activities which have to contribute towards controlled expenditure, the loophole gets bigger. She indicated that it could be a loophole to have a rally just over the constituency boundary. First, whether a rally against a hospital closure that promotes the electoral success of one particular candidate counts towards a constituency limit depends on whether it has a significant effect in that constituency. Albeit that it takes place over the boundary in a neighbouring constituency, it could still have a significant effect in the first constituency and would therefore come within it. Of course, the loophole that would be created by this amendment would be the rally in the constituency itself—over the boundary it would not count at all. I believe that is a criticism: there are activities that would not therefore come within the definition of “controlled expenditure”.

Constituency limits for third parties mean that they cannot outspend and overwhelm candidates and political parties, who after all are the main actors in an election. The noble Lord, Lord Martin of Springburn, made an important point, reminding us that elections are about the names of candidates on the ballot paper. It is not right that a candidate or a party campaigning in a constituency could be targeted by a third party with greater means and a greater spending limit at its disposal.

Taking into account both the long and short campaigning period limits, the most a candidate at the last parliamentary general election could have spent was £55,000; that is for the entire period. I may have misunderstood what the noble Baroness, Lady Mallalieu, said, but I thought she said at one point that parties could spend without limit. That is not the case. There is a limit on political parties. Indeed, in the course of the election period—the short campaign from the Dissolution of Parliament—it is roughly £12,000 to £13,000, depending on the number of electors, a figure that was mentioned by my noble friend Lord Cormack in one of our earlier debates.

However, a third party could choose to spend the entirety of its current spending limit in one small area, campaigning against that and other candidates or the parties they represent. That could be very substantial if one allows a range of activities not to be in any way brought into controlled expenditure. We have previously heard concerns that third parties, although an important part of the democratic process, can also be so closely aligned to a political party as to be effectively campaigning to promote that party. It is right that we take account of that. That is why the Bill introduces a number of provisions to give greater transparency to the activities

21 Jan 2014 : Column 599

and expenditure of third parties. The limits on constituency spending are a key element of the entire package in the Bill. The controlled expenditure incurred on the entire range of activities, not just those few proposed by the noble and right reverend Lord, Lord Harries, should be attributable to constituency limits.

Third parties are not merely in the business of distributing leaflets. They arrange and hold events, rallies and press conferences. They bus campaigners from area to area, delivering large groups of people to distribute those leaflets, or to take part in rallies or other events. Not to include these activities would mean that third parties could still continue to hold local media events on a weekly, or even daily, basis in the run-up to an election without any of that expenditure being brought within controlled limits. It would mean a third party could hold a rally on the eve of an election, secure in the knowledge that it need not account for the cost other than on a nationwide basis. It would mean that a third party could bus hundreds of campaigners into marginal constituencies and overwhelm the work of the candidates in that constituency.

These are all significant activities, and it is right that third parties should be required to account for them on a constituency basis. Narrowing the scope of constituency limits would address only half the problem. On that basis, recognising that in an election the actors are the candidates themselves, it was unfair, particularly in the period from the Dissolution of Parliament until the election, that they were limited to a relatively small sum of money—£12,000 or £13,000—while if you got two third-party groups in the same constituency, they could spend up to £19,750. We do not think that it is reasonable that a loophole should be created.

Lord Cormack: I would be most grateful if the Minister would reflect on one suggestion. I think that he would agree with me that Clause 29 is not the easiest of clauses to understand, particularly for those who are not familiar with legislative language. Would the Minister be prepared to have a conference with the Electoral Commission to try to draw up some mutually agreed guidelines to, and interpretation of, this new law? It is very important, and that would be extremely helpful—particularly bearing in mind that we have this ridiculous businesses of the Bill being in another place tomorrow. I cannot see the reason for that; maybe the Minister could comment on it.

Lord Low of Dalston (CB): Before the Minister finishes his speech, may I, too, ask him a question, to which I would be grateful for a response? All the examples that he has cited seem to be hypothetical. What examples does he have of the kind of conduct that he is railing against actually taking place? Where is the mischief that he seeks to legislate against?

Lord Wallace of Tankerness: My Lords, it was probably at one of the consultation meetings that my noble friend Lord Wallace of Saltaire held when we were discussing these matters that we heard about one substantial organisation that spent a considerable amount of money at the last election—and, indeed, registered the fact that it had done so. It was made clear that one of its activities was to focus on individual constituencies.

21 Jan 2014 : Column 600

I do not criticise that organisation for doing that, but if people are going to do such things, there should be proper limits so that there is proper transparency.

With regard to the point made by my noble friend Lord Cormack, whether I speak personally or on behalf of Ministers and officials, I think that a conference with the Electoral Commission to ensure clarity of guidance on the constituency limits could be very worth while. I say “guidance” because interpretation is, ultimately, a matter for the courts, not the commission. I am not even sure—I am making this up as I go along—whether it should be restricted to Ministers, or whether it might also include the Opposition and other parties, and representatives of campaigning groups. Some sort of round table discussion might be very helpful before the final guidance is produced by the Electoral Commission. On the basis of what I have said, I again invite the noble and right reverend Lord to withdraw his amendment.

Lord Harries of Pentregarth: Before I focus on what the Minister has said about the amendment, may I thank him, and the noble Lord, Lord Wallace of Saltaire, for responding on a whole range of issues to the concerns that have been expressed in this House? The Government really have moved a significant way; there is no doubt about that. But I think we are all aware that the Bill as it came to us in the first place was an appalling piece of legislation. A parliamentarian of very many years’ experience said to me that it was the worst piece of legislation that they had ever seen in a long parliamentary career. “Not quite”, I am hearing, so there must be some other cases as bad.

Again, the value of this House has been shown, as has the willingness of Ministers in this House to listen, so I genuinely thank them. I also thank noble Lords on all sides of the House who have supported some of the amendments tabled in my name and in the names of others. Not least, I thank members of the Electoral Commission, whose expertise I have had the privilege to share. The people there have worked extraordinarily hard. When I look at my e-mails in the morning I find that, night after night, they were sent off in the small hours of the morning; that gives you some indication of how hard they have worked.

Focusing on the amendment, I am disappointed that the Government have not been able to respond more positively. We made a genuine attempt to meet the point that they made about distributing leaflets, and the need to define very carefully what was or was not meant by a constituency in which there was an attempt to affect people’s voting intentions. Rallies have just been mentioned, but as the noble Baroness, Lady Mallalieu, said, if people want to get round restrictions on rallies they could easily do so by having a rally just outside a constituency where there is a narrow majority. There are all sorts of ways round, even as the Bill now stands.

My final point is about the Electoral Commission. I reiterate that it supported the amendment that has been moved today in my name and in the names of others. It said that there were still some difficulties with monitoring, but those would be nothing like the difficulties that it will have if the Bill goes through with the provisions on constituency limits unchanged.

21 Jan 2014 : Column 601

That will be extremely difficult, if not impossible, for the Electoral Commission. It is slightly surprising that the Government have not listened more carefully to what it has said. I think that the strength of feeling in the House on this issue is such that I ought to test the opinion of the House.

4.29 pm

Division on Amendment 11

Contents 248; Not-Contents 222.

Amendment 11 agreed.

Division No.  1

CONTENTS

Aberdare, L.

Adams of Craigielea, B.

Adonis, L.

Allen of Kensington, L.

Allenby of Megiddo, V.

Alli, L.

Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Armstrong of Ilminster, L.

Bach, L.

Bakewell, B.

Bassam of Brighton, L.

Beecham, L.

Berkeley, L.

Best, L.

Bhattacharyya, L.

Bichard, L.

Bilimoria, L.

Birt, L.

Blood, B.

Boateng, L.

Boothroyd, B.

Borrie, L.

Brennan, L.

Brookman, L.

Brown of Eaton-under-Heywood, L.

Butler-Sloss, B.

Cameron of Dillington, L.

Campbell-Savours, L.

Canterbury, Abp.

Carter of Coles, L.

Chandos, V.

Christopher, L.

Clancarty, E.

Clarke of Hampstead, L.

Clinton-Davis, L.

Collins of Highbury, L.

Condon, L.

Corston, B.

Coussins, B.

Craigavon, V.

Crawley, B.

Crisp, L.

Cunningham of Felling, L.

Dannatt, L.

Davies of Coity, L.

Davies of Oldham, L.

Davies of Stamford, L.

Dean of Thornton-le-Fylde, B.

Dear, L.

Derby, Bp.

Donaghy, B.

Donoughue, L.

Drake, B.

Dubs, L.

Eames, L.

Elder, L.

Elystan-Morgan, L.

Erroll, E.

Evans of Temple Guiting, L.

Falconer of Thoroton, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Fellowes, L.

Flather, B.

Foster of Bishop Auckland, L.

Gale, B.

Gavron, L.

Gibson of Market Rasen, B.

Giddens, L.

Glasman, L.

Golding, B.

Goldsmith, L.

Gordon of Strathblane, L.

Goudie, B.

Gould of Potternewton, B.

Grantchester, L.

Greenway, L.

Grenfell, L.

Grocott, L.

Hameed, L.

Hannay of Chiswick, L.

Hanworth, V.

Hardie, L.

Harries of Pentregarth, L.

Harris of Haringey, L.

Hart of Chilton, L.

Hastings of Scarisbrick, L.

Haughey, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hennessy of Nympsfield, L.

Hilton of Eggardon, B.

Hollins, B.

Hollis of Heigham, B.

Hope of Craighead, L.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Hylton, L.

21 Jan 2014 : Column 602

Irvine of Lairg, L.

Jay of Paddington, B.

Jones of Moulsecoomb, B.

Jones, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kerr of Kinlochard, L.

Kidron, B.

Kilclooney, L.

King of Bow, B.

Kingsmill, B.

Kinnock of Holyhead, B.

Kinnock, L.

Kirkhill, L.

Knight of Weymouth, L.

Laming, L.

Lea of Crondall, L.

Leitch, L.

Liddell of Coatdyke, B.

Liddle, L.

Lipsey, L.

Lister of Burtersett, B.

Low of Dalston, L.

Luce, L.

Lytton, E.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

McKenzie of Luton, L.

Maclennan of Rogart, L.

Maginnis of Drumglass, L.

Mallalieu, B.

Masham of Ilton, B.

Massey of Darwen, B.

Maxton, L.

May of Oxford, L.

Meacher, B.

Mendelsohn, L.

Mitchell, L.

Monks, L.

Moonie, L.

Morgan of Ely, B.

Morgan of Huyton, B.

Morris of Aberavon, L.

Morris of Yardley, B.

Neuberger, B.

Northbrook, L.

Norwich, Bp.

O'Loan, B.

O'Neill of Bengarve, B.

O'Neill of Clackmannan, L.

Ouseley, L.

Oxburgh, L.

Palmer, L.

Pannick, L.

Patel of Bradford, L.

Patel, L. [Teller]

Paul, L.

Pendry, L.

Pitkeathley, B.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prosser, B.

Puttnam, L.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Ramsbotham, L. [Teller]

Rea, L.

Reid of Cardowan, L.

Rendell of Babergh, B.

Richard, L.

Ripon and Leeds, Bp.

Rix, L.

Rooker, L.

Rosser, L.

Rowe-Beddoe, L.

Rowlands, L.

Royall of Blaisdon, B.

Sandwich, E.

Sawyer, L.

Scotland of Asthal, B.

Sherlock, B.

Simon, V.

Singh of Wimbledon, L.

Smith of Basildon, B.

Smith of Finsbury, L.

Smith of Gilmorehill, B.

Snape, L.

Soley, L.

Stern, B.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Taylor of Warwick, L.

Temple-Morris, L.

Tenby, V.

Thornton, B.

Tomlinson, L.

Trenchard, V.

Triesman, L.

Truscott, L.

Tunnicliffe, L.

Turnberg, L.

Uddin, B.

Vinson, L.

Walker of Aldringham, L.

Wall of New Barnet, B.

Walpole, L.

Walton of Detchant, L.

Warner, L.

Warnock, B.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wigley, L.

Williams of Crosby, B.

Williams of Elvel, L.

Wills, L.

Winston, L.

Wood of Anfield, L.

Woolmer of Leeds, L.

Worthington, B.

Wright of Richmond, L.

Young of Hornsey, B.

NOT CONTENTS

Addington, L.

Ahmad of Wimbledon, L.

Anelay of St Johns, B. [Teller]

Arran, E.

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor of Hever, L.

Astor, V.

Attlee, E.

Avebury, L.

21 Jan 2014 : Column 603

Bakewell of Hardington Mandeville, B.

Balfe, L.

Barker, B.

Bates, L.

Bell, L.

Benjamin, B.

Berridge, B.

Black of Brentwood, L.

Blackwell, L.

Blencathra, L.

Borwick, L.

Bourne of Aberystwyth, L.

Bowness, L.

Brabazon of Tara, L.

Bradshaw, L.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browning, B.

Burnett, L.

Byford, B.

Carlile of Berriew, L.

Carrington of Fulham, L.

Cathcart, E.

Cavendish of Furness, L.

Chadlington, L.

Clement-Jones, L.

Colwyn, L.

Cope of Berkeley, L.

Courtown, E.

Crickhowell, L.

Cumberlege, B.

De Mauley, L.

Deech, B.

Deighton, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dundee, E.

Dykes, L.

Eccles of Moulton, B.

Eccles, V.

Eden of Winton, L.

Elton, L.

Empey, L.

Falkner of Margravine, B.

Faulks, L.

Fellowes of West Stafford, L.

Finkelstein, L.

Fookes, B.

Fowler, L.

Framlingham, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Gold, L.

Goodlad, L.

Goschen, V.

Grender, B.

Griffiths of Fforestfach, L.

Hamilton of Epsom, L.

Hamwee, B.

Henley, L.

Hill of Oareford, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Horam, L.

Howard of Lympne, L.

Howe of Aberavon, L.

Howe, E.

Humphreys, B.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

Inglewood, L.

James of Blackheath, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

Jopling, L.

King of Bridgwater, L.

Kirkham, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Lang of Monkton, L.

Lawson of Blaby, L.

Leigh of Hurley, L.

Lester of Herne Hill, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Linklater of Butterstone, B.

Liverpool, E.

Livingston of Parkhead, L.

Loomba, L.

Lothian, M.

Luke, L.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Maddock, B.

Mancroft, L.

Manzoor, B.

Marks of Henley-on-Thames, L.

Marland, L.

Marlesford, L.

Martin of Springburn, L.

Mawhinney, L.

Mayhew of Twysden, L.

Methuen, L.

Miller of Chilthorne Domer, B.

Montagu of Beaulieu, L.

Montrose, D.

Morris of Bolton, B.

Moynihan, L.

Naseby, L.

Nash, L.

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Nicholson of Winterbourne, B.

Northover, B.

Norton of Louth, L.

Oppenheim-Barnes, B.

Paddick, L.

Palmer of Childs Hill, L.

Parminter, B.

Patten, L.

Perry of Southwark, B.

Phillips of Sudbury, L.

Plumb, L.

Popat, L.

Purvis of Tweed, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Renfrew of Kaimsthorn, L.

Ribeiro, L.

Roberts of Llandudno, L.

21 Jan 2014 : Column 604

Rodgers of Quarry Bank, L.

Rogan, L.

Roper, L.

Ryder of Wensum, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharp of Guildford, B.

Sharples, B.

Shaw of Northstead, L.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shipley, L.

Shutt of Greetland, L.

Skelmersdale, L.

Smith of Clifton, L.

Soulsby of Swaffham Prior, L.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stewartby, L.

Stirrup, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strasburger, L.

Strathclyde, L.

Suttie, B.

Swinfen, L.

Taylor of Holbeach, L.

Teverson, L.

Thomas of Gresford, L.

Thomas of Swynnerton, L.

Thomas of Winchester, B.

Tonge, B.

Tope, L.

True, L.

Trumpington, B.

Tyler of Enfield, B.

Ullswater, V.

Verjee, L.

Verma, B.

Wade of Chorlton, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Warsi, B.

Wasserman, L.

Wei, L.

Wheatcroft, B.

Whitby, L.

Wilcox, B.

Williams of Trafford, B.

Willis of Knaresborough, L.

Willoughby de Broke, L.

Wrigglesworth, L.

Younger of Leckie, V.

4.44 pm

Amendment 12 agreed.

Clause 30: Targeted expenditure limits

Amendments 13 to 17 agreed.

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Clause 34: Returns as to controlled expenditure

Amendment 18 agreed.

Clause 35: Statements of accounts by recognised third parties

Amendments 19 and 20 agreed.

Clause 39: Post-election review

Lord Harries of Pentregarth: My Lords, I need not speak to this amendment for very long. We very much welcomed the Government’s commitment to have a review of the Act after the 2015 general election and that they will set up a person to monitor the election itself. That is all very much to be welcomed—not least of course because, even with the amendments that the Government have accepted, there is still a great deal of concern about this Bill.

We all know that there is a tendency for reviews to be spun out and spun out. That is why some of your Lordships were very keen to have a sunset clause. I believe that Amendment 21 will ensure that Parliament has a proper opportunity to see that review and respond to it well before the election following the 2015 election. We believe that 18 months is about the right time for a proper review to take place and for all the consultations that are necessary. I beg to move.

Baroness Lister of Burtersett (Lab): I want very briefly to support the amendment but also to remind your Lordships’ House that the Joint Committee on Human Rights expressed concerns about the implications of the Bill for freedom of association and freedom of expression. I would be very grateful if the Minister, in responding, could assure your Lordships’ House that

21 Jan 2014 : Column 606

the effects of the Bill on freedom of expression and association will be part of this review, the importance of which was underlined when discussed in Committee—although I do not think that this particular point was raised.

Lord Tyler: My Lords, I very much welcome the noble and right reverend Lord’s amendment. I believe that it is preferable to a sunset clause because it will start the process of analysis of what is happening under the Bill before the general election happens, rather than having to wait till a later stage. I hope that it gets an equally warm welcome from my noble and learned friend on the Front Bench.

Lord Wallace of Tankerness: My Lords, as the noble and right reverend Lord, Lord Harries, has indicated, the Government brought forward at Report an amendment so that there will be a review. The Government are committed to appointing a person to undertake the review within 12 months of this Bill receiving Royal Assent. That came out of one of the meetings that we had with one of the campaign groups, which suggested that it might be useful to have someone in place during the election. We thought that that was a very sensible suggestion and one for which we have provided.

I have discussed with the noble and right reverend Lord, Lord Harries, the merits and demerits of perhaps putting more in the Bill about what the review might or might not do, and we concluded that the minute we start adding things it begs the question as to what has been left out. There is no intention to limit the review, and I take the point made by the noble Baroness, Lady Lister. If people wish to make representations on that point in terms of the review, we would not anticipate anything stopping it—certainly there is nothing in the Bill that would stop it. I emphasise, however, that we believe that freedom of association and expression are vital. They are not impinged by the Bill; rather, what we have is transparency. We are not trying to stop people campaigning, but if they are campaigning in a way that seeks to influence an election it is not unreasonable that that should be transparent.

The next scheduled general election will be the opportunity on which the Bill will operate, and will provide a timely opportunity to review the effectiveness of those controls. On completion the person conducting the review must produce a written report which must be published and laid before Parliament by the Minister. The noble and right reverend Lord, Lord Harries of Pentregarth, tabled the amendment proposing that the report must be laid before Parliament within 18 months of the general election. It is right that Parliament should have the opportunity to consider the outcomes of the review well before the following 2020 election. It is appropriate that the review is done to an established timetable, and the Government are therefore pleased to accept the amendment.

Lord Harries of Pentregarth: I thank the noble and learned Lord for accepting the amendment. I do not know whether he can give any kind of indication, or feels that he would like to at this stage, about the

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groups or constituencies of people who would be consulted as part of the review. Perhaps he is not yet in a position to do that.

Lord Wallace of Tankerness: My Lords, I do not want to pre-empt the person who is appointed to undertake the review or in any way constrain what he or she will do. It might be an opportunity to reiterate something, not just in the context of the review, but on the point made in the previous debate by my noble friend Lord Cormack. I accepted the point that he made on the constituency issues: there might be merit in having groups—not just parties, but campaigning groups—involved in any guidance that emerges from the Electoral Commission. I readily expect that any review would involve submissions from the political parties that have been involved in the election, from charities, non-charitable campaigning groups, and people who have something relevant to contribute. As I said yesterday, we can always bet our lives that some issue will emerge that none of us has thought about, in spite of our very exhaustive discussions and debates. That is why it is important not to be prescriptive.

Lord Harries of Pentregarth: I thank the Government for their willingness to accept the amendment.

Amendment 21 agreed.

Clause 40: Duty to provide membership audit certificate

Lord Stevenson of Balmacara (Lab): My Lords, at Report the Minister said that he was happy to offer reassurance that unions will have the time that they need to comply with this new legislation. He said that unions would,

“have at least 17 months to comply from the point at which the legislation takes effect, because the provisions will not apply retrospectively”,

and because,

“17 months is the combination of the 12-month reporting period plus the five months that is allowed after that period to submit the annual return”.—[

Official Report

13/1/14; c. 92.]

So if Parliament granted Royal Assent next month, the earliest that the provisions could take effect is May 2016. However, this timetable is complicated by the fact that the Minister for Employment and Consumer Affairs gave an assurance in the other place that the Government will undertake a public consultation prior to commencement on the order that will set out who is eligible to be an assurer. In a recent letter, the noble Viscount also announced that the Government will use this consultation to inform the development of guidance for employers and employees, to support implementation, and he will be seeking further evidence

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to revise and republish the impact assessment before commencement. That was agreed when we were discussing the Bill earlier.

Our point at Report was that this section of the Bill will operate successfully only if the legislation gives the unions, and particularly the larger unions, adequate time to comply with the requirements in a way that is cost-effective, economical and practical from their point of view. Under questioning from my noble friend Lord Monks, the noble Viscount conceded that,

“this is not the most straightforward of timetables to set out and I would be very happy to meet the noble Lords, Lord Stevenson and Lord Monks, and any other noble Lords to clarify the timings”.—[

Official Report

13/1/14; c.92.]

He also mentioned that there were ongoing discussions with the TUC and others.

That is the background to this amendment. My noble friend Lord Monks and I had a further meeting with the Minister when he confirmed that the department did want to adjust the timetable for the unions to comply. In a letter following the meeting, the noble Viscount wrote:

“Further to concerns raised about the time unions will require to prepare for the new requirements, and discussion both at Lords Report and separately between BIS and the TUC, I can also now confirm that the Government intends to work towards commencement in April 2015”.

It is indeed a complex picture of calendars. Our understanding is that this will mean that no union will have to submit a membership audit certificate to the certification officer before August 2016.

I hope the Minister will accept this simple amendment, which does, I think, reflect the Government’s intention. If not, I hope he will use the opportunity to spell out precisely the timetable for the unions so that we are all clear about what is required.

In closing, while we on this side of the House deplore this part of the Bill, which places costly and unnecessary burdens on the larger unions and poses a threat to the security of their data, the noble Viscount has, as usual, been unfailingly courteous to all of us who spoke in this debate, and he and the Bill team have been able to assist us on all our queries over these last few months. We thank him for that.

Lord Monks (Lab): My Lords, I support the remarks of my noble friend Lord Stevenson. I hope the Minister will be able to confirm the points that are being raised and in particular the points that have already been covered to a high degree in a letter to my noble friend Lord Stevenson.

We still do not know why we have Part 3. It is onerous, it is expensive and it is uncalled for. There is no evidence of any problem that it addresses. There is no evidence that any questions of public interest about union membership cannot be addressed by perfectly adequate existing remedies, particularly the existence of independent scrutineers in ballots. There is no information about who wants this Bill, who has been pressing for it or what lobby is behind it. Transparency, which is in the title, certainly does not extend to the reasons why this part of the Bill exists. We simply do not know. We do not know who thinks this is deserving of public interest. The Government have still to explain

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that. I hope that one day—perhaps not today—we shall get an explanation of what this was really for and what it was all about.

This morning I received a petition organised by the TUC and others. It is signed anonymously by nearly 12,000 people. They do not give their names, they give their occupation and location details. The trade unions have got the information about their names. The individuals trusted the unions with this information. They do not trust these public officials who the Bill proposes to turn loose on union membership records. This is not an academic issue. We currently have over 2,000 cases in the construction industry of allegations of blacklisting—of people who have been out of work, in some cases for years, because of misuse of confidential information, allegedly by some of the most prestigious names in the construction industry.

This part of the Bill has no practical value. I regret it. I hope the Minister can confirm now that the problems, at least in terms of its introduction, will be eased. We do not respect Part 3 because we do not know why we have got it. We do respect the Minister and the courteous way in which he has dealt with us. I hope that next time he comes to the House with something about trade unions and employment, he has a real issue to address rather than the fiction which is in this part of the Bill.

5 pm

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con): My Lords, first, I take this opportunity to thank all noble Lords who have provided thoughtful and constructive contributions to debate throughout the passage of Part 3 of the Bill. I personally understand how sensitive many of these issues—some of which the noble Lord, Lord Monks, has iterated just now—are to some noble Lords. In particular, but by no means exclusively, I thank the noble Lord, Lord Stevenson of Balmacara, for his kind words earlier; the noble Lords, Lord Monks, Lord Whitty, Lord Beecham and Lord Lea of Crondall; and the noble Baronesses, Lady Donaghy, Lady Turner and Lady Drake. I also thank my noble friends Lord Tyler and Lord Balfe and, in particular, my noble friend Lord Cormack, whose brief contribution I failed to acknowledge on Report. Finally, I give my sincere thanks to the Bill team for all their hard work.

I know that the intention behind the amendment of the noble Lord, Lord Stevenson, is to probe the Government’s plans for commencement of Part 3 and to ensure that trade unions are given sufficient time to be able to comply with changes requiring them to report annually on their membership registers. On Report, I offered to meet the noble Lords, Lord Stevenson and Lord Monks, to discuss this matter in more detail. Indeed, as they alluded to, that meeting took place two days following Report, on 15 January. Noble Lords may like to be reminded that, on Report, I suggested that the earliest the provisions would be commenced was October 2014. I am pleased that I was able to say at the meeting last week, and can confirm to the House today, that commencement will not occur before April 2015. This follows careful consideration

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of what has been said during the parliamentary stages and concerns raised during the BIS consultation, as well as discussions between the Secretary of State for Business, Innovation and Skills and Frances O’Grady, the general secretary of the TUC.

Commencement in April 2015 would mean that the very earliest any trade union would be required to submit a membership audit certificate to the certification officer would be August 2016. In practice, it is likely to be later than that for many unions, as many have a calendar reporting year and would not be required to submit their first certificate until June 2017. Noble Lords will recall that this is because unions will submit a membership audit certificate for the first full reporting year after the changes become law. The 17-month period that I referred to on Report is a combination of the union’s 12-month reporting period and the five months that is allowed after that period to submit the annual return.

I hope that this thoroughly reassures noble Lords as, in the meeting that I had with the noble Lords, Lord Stevenson and Lord Monks, I was led to believe that the reassurances that I personally gave were accepted. However, we will continue to work closely with trade unions as we head towards commencement, in particular by discussing with them the guidance that will be needed as well as consulting on the draft order that identifies eligibility to be an assurer. I believe that an April 2015 commencement date will give trade unions the time that they need to prepare and to amend their rules, and understand that the general secretary of the TUC agreed that this was achievable. I have written to the noble Lords, Lord Stevenson and Lord Monks, and placed copies in the Libraries of both Houses confirming this. The Secretary of State has written in similar terms to Frances O’Grady. I hope therefore that the noble Lord is reassured and that he will withdraw his amendment.

Lord Stevenson of Balmacara: My Lords, I thank the Minister for his very full response to our amendment. I am obviously sad that he will not accept the amendment as laid, as it seems to exactly mirror what he has announced, but maybe these are days when the Government do not want to see too many concessions being scored, so I understand the problems. Assuming that what he has said is exactly what we think it is, and given that we have letters and documentation to support that and that letters are also being written separately to the TUC confirming it, I beg leave to withdraw the amendment.

Amendment 22 withdrawn.

Clause 46: Transitional provision

Amendment 23 agreed.

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(1) The Minister may by order made by statutory instrument make provision consequential on any provision of Part 2 or section .

(2) An order under this section—

(a) may include provision amending or modifying any provision of or made under PPERA 2000 (including any provision inserted by this Act),

(b) may include incidental, supplementary, transitional, transitory or saving provision, and

(c) may make different provision for different purposes or cases or for different areas.

(3) A statutory instrument containing an order under this section that amends or modifies any provision of PPERA 2000 may not be made unless a draft of the instrument containing it has been laid before, and approved by a resolution of, each House of Parliament.

(4) Any other statutory instrument containing an order under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

(5) No order may be made under this section after the date of the poll for the first relevant parliamentary general election.

(6) In this section—

“the first relevant parliamentary general election” has the same meaning as in section ;

“the Minister” means the Secretary of State or the Lord President of the Council;

“PPERA 2000” means the Political Parties, Elections and Referendums Act 2000.”

Lord Wallace of Tankerness: My Lords, Amendment 24 introduces a power to make any provision consequential on Part 2 by order. At the outset, I wish to reassure noble Lords that the power is narrow in scope and will only allow the Government to make consequential amendments—it would not allow the Government to amend the fundamental principles and provisions included within Part 2. Any changes to the primary legislation would be subject to the affirmative resolution process.

The power is also time-limited, so that it could only be used until the date of the next general election. I emphasise that I hope this power will not be needed, but I consider it prudent to insert it into the Bill. Indeed, Amendment 7, which has already been agreed to by your Lordships today, was a starred amendment on the Marshalled List because it came up even since the Government tabled our amendments on Friday. We believe that we have introduced a number of amendments of significant benefit to campaigners and we would not wish to risk them becoming ineffective for any technical reason.

The Electoral Commission says it is important that Ministers should consult it, at least informally, before using the power. We agree that it is important to consult the Electoral Commission. I assure the House that we will consult it before making an order under this power, and the commission has agreed with that approach. Should the commission make a recommendation to use this power, we will consider it extremely carefully, but the circumstances in which we anticipate the need for this power would be to deal with any minor or technical drafting changes that are identified to ensure that the legislation is effective. They may be identified by the Electoral Commission or by officials or lawyers in government, and it would be counterproductive to suggest that only a commission recommendation could justify the use of this consequential provision. I beg to move.

21 Jan 2014 : Column 612

Lord Horam (Con): My Lords, I remind the House that I am a member of the Electoral Commission. This new clause gives the Government the power to deal with any consequences of the Bill that turn out to be radically different from those intended. Such consequences may indeed include the workload and the efficacy of the Electoral Commission, which has been greatly commented on today and in previous debates. The noble Baroness, Lady Mallalieu, talked about headaches and nightmares for the Electoral Commission. I hope it is not quite as bad as that but I appreciate her point. My noble friend Lord Cormack called, in the right spirit, for sensible and simple advice from the Electoral Commission. Given the hideous complexity of the Bill, that is more than ever necessary in this case.

I wish to draw the Minister’s attention to a point about the consequences for the workload and efficacy of the Electoral Commission. Clause 38 alters the legal language in which the remit of the Electoral Commission is incorporated. The Government have done this without any prior consultation with the Electoral Commission. This non-consultation, while fairly common in this Bill, is unusual generally in legislation and is doubly so when one considers that the Electoral Commission is not a government body but one that reports to Parliament through the Speaker of the House of Commons. It is deliberately independent of government yet the Government have altered the wording of its remit without any prior consultation with the Electoral Commission or with Parliament.

The Lords Constitution Committee noted that the regulatory duties of the Electoral Commission had been extended and advised that:

“The House may wish to consider the implications”

of that. The Political and Constitutional Reform Committee in the other place actually said that the clause should be withdrawn, pending consultation with the Electoral Commission. Of course, that has not happened.

It is fair to say that the Government’s motives in doing this were well intended but, as has often been said, the road to hell is paved with good intentions. The Government’s contention is that the change in emphasis of the Electoral Commission’s remit provides reassurance to non-party campaigners and the Electoral Commission itself that its role and responsibilities are important and necessary and that it has the appropriate statutory backing.

That is commendable but, on closer scrutiny of the Bill, it is not helpful. The main thing Clause 38 does is to change “general function” to “duties” and change taking “appropriate steps” to taking “all reasonable steps”. The problem with this is that it reduces the flexibility of the Electoral Commission to deal with spurious or politically motivated allegations that are clearly unfounded. The lawyers in the House will appreciate the difference between “appropriate” and “all reasonable” steps. The problem is compounded by the fact that, as a result of the Bill, many more campaigners are likely to be regulated, as has been acknowledged by the Government and other speakers. Any allegations may peak at the climax of the election and thus lead to confusion and loss of confidence in the new regime.

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