My Lords, there will be many echoes and repetitions this afternoon and evening, and I make no excuse for joining in because the issues are so important. As has been mentioned, I am a member of your Lordships’ Select Committee on the Constitution, whose report was published last Friday. On the same day, the Joint Committee on Human Rights published its report and prior to that on 5 September the House of Commons Political and Constitutional Reform Committee published its report. All are cross-party committees and all are agreed on their conclusions and recommendations. All are highly critical of the Bill.
Three common issues emerge. First, once again, the Government have introduced a Bill without adequate consultation and scrutiny, not least without pre-legislative scrutiny. As my noble friend Lady Jay of Paddington pointed out, the Constitution Committee has repeatedly stressed the importance of proper scrutiny and consultation. That is important for the reputation of Parliament and the quality of legislation itself. Any failure to do so undermines public confidence, particularly in the case of Bills of constitutional importance. This is such a Bill because it directly affects the ability of people and organisations who wish to engage with the Government and participate in political and electoral campaigning to do so. Freedom of expression and freedom of assembly are rights which lie at the very heart of our constitution. Any threat to these would not only infringe Articles 10 and 11 of the European Convention on Human Rights but be contrary to fundamental common law. Some say that this Bill does just that, and I have seen a leading counsel’s opinion which states that there are grounds for a legal challenge on grounds of incompatibility.
A second but connected theme emerging from the reports is that throughout the Bill there are problems of definition, both individually and collectively, which have caused great uncertainty and could lead to unforetold consequences. For example, broadening the scope of controlled expenditure and at the same time lowering its cap, the definition of consultant lobbying and the scope of the Bill have all raised fears and concerns which the lack of proper scrutiny and the speed with which this legislation is being catapulted forward have made worse.
A third theme, which has already been mentioned, is whether, in the absence of a clear rationale, Part 2 is necessary at all, and that what is being proposed is quite disproportionate. The Joint Committee on Human
Rights states at paragraph 60 of its report, to which the noble Baroness, Lady Kennedy of The Shaws, drew attention:
“We are concerned that the lack of understanding and clarity about the practical effects of the Bill has led to widespread concern that third parties may be dissuaded from participating in campaigns with a potential ‘chilling effect’ on free speech and freedom of association of third party campaigners”.
Judging by the letters and e-mails that I have received, I believe that it is quite right. For example, legal aid, access to justice, human rights and examples of unjust law are all likely to be election issues. Under current definitions, a third-party campaigner on any of these issues is exposed to the risk that his or her campaigning activities could be regarded as intended to promote or procure electoral success for a party or candidate even though it is accepted that he or she had no such subjective intention to do so or that he or she did not name any party or candidate or that he or she was engaging in the campaign for its own sake. Such a result cannot be intended, but that is an example of the uncertainty which has been caused.
The Constitution Committee also drew attention to Clause 35 extending the regulatory duties of the Electoral Commission, which has expressed concerns about the rationale for it and whether it has the resources to fulfil the extended obligations effectively.
As to my personal view, I regret to say that I believe this Bill, and the way it has been processed, is a rather shoddy piece of work which has caused in its slipstream much concern and uncertainty. The noble Lord, Lord Tyler, seems to think that it is a giant torch shining light on dark cupboards. To me it brings dark clouds and obscurity. I believe that it requires far more scrutiny than the speed of its planned parliamentary timetable will permit. Accordingly, I agree with the Joint Committee when it suggests that the Bill should be paused and submitted for more extensive scrutiny and greater consultation. Alternatively, of course, Part 2 could be dropped altogether. There is a need for a Bill, but this is not it.
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