Political Parties and Elections Bill

I hope that hon. Members in general will agree that I am trying to advance a reasoned and considered argument, but if the hon. Gentleman just wants to make party political trashy remarks, he can do so; that is up to him. The answer, by the way, is no. We also think that the permissible donor provisions of clause 8 may be an infringement of an individual's right to freedom of expression, as my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox) suggested in his intervention. The case of Bowman v. the United Kingdom of 1998 showed that the European Court of Human Rights would step in to protect the right to freedom of expression even in the case of UK primary legislation designed to regulate the conduct of elections. In that case, it was found that the spending limit on third parties, which was £5 at that time, imposed by section 75 of the Representation of the People Act 1983 was an infringement of the right to freedom of expression under article 10 of the European convention on human rights. As that right is a qualified right, the Court went on to look at whether the spending restriction was prescribed by law, pursued a legitimate aim, and was necessary in a democratic society. In considering the latter condition, the Court looked at whether the means employed were necessary and proportionate to the aim pursued. It found that the limit was not necessary or proportionate, and the UK Government subsequently amended the legislation to raise the limit. It is generally established that the right to give a political donation is part of the right to freedom of expression. Clearly the amendment would be a restriction on that right. A court would therefore have to look at whether the restriction was necessary and proportionate to the aim pursued. We cannot pass legislation that restricts an individual's freedom of expression, particularly when we have not been provided with any evidence on whether such a restriction would be necessary and, importantly, proportionate to the aim pursued. We must also consider the EU law implications of the amendment. According to article 18 of the Maastricht treaty, citizens have a right to move and reside freely within the territory of any of the member states, subject to the limitations and conditions contained in the EU treaty and secondary legislation. The European Court of Justice has defined Union citizenship as the "fundamental status" of Union citizens. Union citizens have a conditional right of residence, and a limited right to equal treatment. Article 19 of the treaty provides that Union citizens residing in a member state different from that of nationality have the right to vote, and to stand, in the local elections of the state where he or she is residing, under the same conditions as nationals of that state. My right hon. Friend the Member for Wokingham (Mr. Redwood) elaborated on that point in his earlier intervention. It appears that the effect of the amendment, which would be to prohibit persons not resident or domiciled in the UK from making a political donation—and therefore possibly infringe their right to freedom of expression—could run counter to the basic principle of the free movement of people. That point was effectively expounded on by my hon. and learned Friend the Member for Torridge and West Devon. Indeed, the Secretary of State referred to possible ECHR issues connected with the amendment. The next problem is that the permissible donor provisions of clause 8 do not correctly address the mischief that the Political Parties, Elections and Referendums Act 2000 aimed to address—arguably it blows a hole through it. The "mischief" at which section 54 of the 2000 Act is aimed, is that of "foreign donations". There appeared, at the time the legislation was passed, to be particular concern about donations from foreign Governments and donations from individuals and persons who had no direct relationship or involvement with the United Kingdom. Section 1 of the Representation of the People Act 1985 permits overseas British citizens to vote in a parliamentary election if they are registered on an electoral roll, were resident at a UK address within the last 15 years and registered at that address or were too young to be registered but a parent or guardian was registered at that address. Therefore, the requirement in the 2000 Act that an individual be on the electoral roll already incorporates a test of connection, or involvement, with the United Kingdom. Proposing the amendment in the other place on 30 April, Lord Campbell-Savours quoted the Electoral Commission as saying:""The permissibility requirements in the 2000 Act are intended to ensure that only people and organisations with a close relationship to the UK can donate to political parties. It is for Parliament to decide if this is appropriate"." He took that as support for the amendment. It can also be read, however, to support a test that relies on registration on the electoral roll, as that already requires a connection with the UK.