Lords Sitting of 24 October 2000

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Lincoln.

Lord Ashcroft
Sir Michael Anthony Ashcroft, Knight, KCMG, having been created Baron Ashcroft, of Chichester in the County of West Sussex, for life—Was, in his robes, introduced between the Lord Parkinson and the Lord Blyth of Rowington.

Telecommunications Masts and the Countryside
2.43 p.m.
Lord Judd Lord Judd asked Her Majesty's Government:
What action they are taking to avoid further erosion of the character of the countryside by advertising and by the erection of telecommunications masts.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, local planning authorities in England already have powers to control outdoor advertisements, including those in the countryside. Last year my department consulted on proposals to improve the regulations and announced the outcome in June 2000. Similarly, the planning regime for telecommunications masts in England already includes mechanisms for the protection of the environment. My department is currently consulting on possible changes. Responsibility for these matters in Wales, Scotland and Northern Ireland rests with the devolved administrations.
Lord Judd: My Lords, I thank my noble friend for that reply and declare an interest as vice-president of the Council for National Parks. Does my noble friend agree that the countryside is one of our most precious assets and that psychologically it is becoming increasingly important in the pressurised age in which we live? Therefore, does he agree that it is unfortunate to see increasing evidence that the countryside is being spoiled by more advertising along the roadside and by a growing number of radio masts across the country? Can he bring together the companies which deal with radio masts to discuss how their task can be undertaken with a more strategic and sympathetic approach? Will he also throw all his weight behind strengthening the resolve of local authorities to deal firmly with those who want to allow more advertising to take place on roads and in the countryside?
Lord Whitty: My Lords, so far as concerns telecommunications masts, it is important that the
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consultation process ensures a degree of co-ordination among telecommunications companies and that it is made clear that some sharing of masts will be appropriate. I concur with my noble friend about the importance of maintaining the environment of the countryside and of ensuring that the environmental damage and visual intrusion of such masts is minimised. It is, of course, also important that modern communications exist for those who live and work in the countryside.
Local authorities in the countryside and elsewhere already have strong powers in relation to roadside advertising. Road safety issues also arise in connection with advertisements which are situated close to the roadside. Local authorities should observe their obligations in that respect as well.
Lord Renton: My Lords, is the Minister aware that planning authorities have not done enough to prevent garages and petrol stations from bearing the most garish advertisements which interfere with the beauty of the countryside? Will he send a memorandum to all of them to deal with that matter?
Lord Whitty: My Lords, the rules which cover planning permission for garages and the items which they can display are fairly tight. I believe that local authorities are aware of their responsibilities in that respect. If a particular aspect of that issue needs to be addressed, I should welcome further information from the noble Lord and would certainly undertake to look into it.
Lord Bridges: My Lords, is the Minister aware that mobile telephones have become an essential tool of modern life but that they convey environmental problems? Can the Minister state fairly precisely when the revised version of policy planning guidance no. 8, which concerns the power of local authorities in considering applications, will emerge? Will he consider a further improvement to make it possible for the planning authority to question the applicant about the operational need for such stations? At present the applicants decline to answer such questions and say, "It is an operational matter and it must be up to us". Therefore, an attempt to persuade two companies to share the same site, to modify the height of a mast or to consider a practical improvement almost invariably will be rejected. In the district where I live, 20 or more planning applications have been received in the past few months. Therefore, local authorities are simply unable to cope.
Lord Whitty: My Lords, local authorities have the power to cope. Certainly, that number of planning applications has been received in other areas and has been dealt with relatively well. It is for the operators and local authorities to consider together the best location and design to produce the minimal impact on the environment. Local authorities can control the site. They have adequate powers and can control planning permission for the appearance of masts. If it

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is sensible for shared masts to be established, local authorities have the leverage to ensure that that happens.
Lord Davies of Coity: My Lords, is my noble friend aware that, having taken a decision that no mast would be erected on any school ground, Stockport Borough Council turned down an application by the Stockport Rugby Football Club for one to be located on its premises? Is he further aware that, following, I understand, very little investigation into the matter and little consultation with the local residents, an inspector from the Department of the Environment overturned that decision? Finally, will the Minister give an assurance that, accordingly, an adequate investigation will be carried out into the protests of the residents who have written to Mr Michael Meacher and into the inspector's decision?
Lord Whitty: My Lords, I believe that my noble friend will be aware that it is very unwise for Ministers to make commitments in relation to planning decisions which may yet be subject to ministerial engagement. I am not aware of the details of that particular case. However, I am aware of the fact that special precautions need to be taken in relation to telecommunications masts which are close to schools. The Stewart inquiry made that point, and if the main beam affects schools, special precautions will need to be taken. I am sure that all planning authorities are aware of those restrictions.
Lord Monro of Langholm: My Lords, although the Minister is saying all the right things about the countryside, the problem is that, day by day, more and more masts are being erected. Real leadership is required, as is a lead to the local authorities to stop giving permission for all those masts, which I believe can be found at the top of nearly every hill between here and the Border.
Lord Whitty: My Lords, as I have said, local authorities have those powers. We are consulting as to whether such powers are correct. Perhaps I may say to the noble Lord, Lord Bridges, that that consultation will continue until the final version emerges, which should be reasonably rapid. Local authorities already have strong powers. In this age it is necessary for the people who live and work in the countryside to have access to the best of modern telecommunications. The question is not whether to ban masts but to ensure that they do minimal visual and environmental damage.
Lord Bridges: My Lords, I do not wish to correct the Minister, who is responsible for these matters. However, perhaps I may refine his reply. It may be true that local authorities have the power to turn down applications but they do not have the authority to negotiate improvements, which is what is needed.
Lord Whitty: My Lords, in absolute terms the noble Lord is right. However, there is plenty of opportunity
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for discussion and negotiation prior to the formal planning process. Many local authorities have modified the original proposals, and engaged in sharing and relocation of masts as a result of such discussion.

Paving Stones Containing Titanium Oxide
2.52 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether they are encouraging the experiment being conducted with paving stones containing titanium oxide in order to test their effectiveness in extracting polluting substances from the atmosphere.
Lord Whitty: My Lords, the Government are not directly involved with this experiment. I understand that Westminster City Council is considering a possible trial of some paving stones containing titanium dioxide but that the idea is at an early stage. We shall be interested to learn of any results in due course.
Lord Campbell of Croy: My Lords, I am grateful to the Minister for his reply. Provided the stones meet the essential requirements for sound and solid paving, do the Government foresee a useful possible role for them in urban areas in removing pollution caused by motor traffic? I believe that everybody would support that, and that it would be welcomed.
Lord Whitty: My Lords, it is too early to comment positively on that. I understand that Westminster City Council has had discussions with Mitsubishi Materials, the manufacturers of the paving stones, which have been trialed in Osaka, Japan. However, we do not have the full outcome of those trials. It will be a matter for Westminster City Council, in discussions with the manufacturers, to decide whether the paving stones would be appropriate for this area. Should those answers be positive, clearly the Government would be interested. However, it is far too early to comment.
Baroness Gardner of Parkes: My Lords, can the Minister confirm that the basis on which the stones are supposed to work is by converting nitrous oxide into nitrogen and oxygen and so purify the air? Is he also aware that sunlight is a necessary factor in that process? Does he think that our climate in this country might occasionally make it difficult to quantify the result?
Lord Whitty: My Lords, there are such variables. The noble Baroness is correct in describing the chemical process, which requires ultra violet rays. However, I believe that the City of Westminster

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receives sufficient days of sunshine for this process to be effective if everything else applies. There is potential scope, but, as I have said, many uncertainties.
Baroness Sharpies: My Lords, can the Minister tell the House whether the stone is a composite or natural stone, such as York stone?
Lord Whitty: My Lords, it is probably natural stone. The only extant example is in Japan, so I doubt whether it corresponds precisely to York stone. It is heavily impregnated with titanium dioxide, which changes the composition.
Lord Campbell of Croy: My Lords, if the experiments were to indicate wider effectiveness, might not that material also be used near other sources of air pollution, for example, downwind of refineries and sewage works?
Lord Whitty: My Lords, the emissions from such installations are slightly different to those from road traffic. I agree that we are primarily dealing with nitrogen dioxide. Once again, there are many uncertainties in this area. It is too early for me to pronounce on the noble Lord's Question.
Earl Ferrers: My Lords, if the Government do not like chemicals such as fertilisers and pesticides, what is the virtue of putting down chemicals on the streets to remove chemicals from the air?
Lord Whitty: My Lords, the Government are not opposed to appropriate use of pesticides. However, we are opposed to inappropriate use. If the process proves to be appropriate, we shall consider it for wider use. Perhaps I may repeat that this is far too early a stage to comment.

Arms Brokering and Trafficking
2.56 p.m.
Lord Wallace of Saltaire Lord Wallace of Saltaire asked Her Majesty's Government:
When they intend to introduce a comprehensive system of licensing for arms brokering and trafficking.
Lord McIntosh of Haringey: My Lords, the Secretary of State for Trade and Industry has already said that the Government will introduce a system of licensing for arms trafficking and brokering. That will, of course, require new primary legislation. We will announce our plans for new legislation once we have completed the review of proposals in the White Paper on strategic export controls. That will include details of the controls on arms trafficking and brokering. As to when new legislation will be brought before
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Parliament, your Lordships will understand that that depends on the availability of time in the legislative programme.
Lord Wallace of Saltaire: My Lords, I thank the Minister for that reply. Does he agree that the speech given by the Secretary of State to the Labour Party conference on this subject was extremely strong? Indeed, he announced that the Government have decided to introduce legislation. Does he accept that we are now two and a half years down the road from the White Paper on this subject? That seems to be enough time to consult on all the implications. May we therefore hope that the consultation is now complete?
Lord McIntosh of Haringey: My Lords, I agree with the noble Lord, Lord Wallace, about the strength of the speech made by the Secretary of State to the Labour Party conference. As regards the time taken since the publication of the White Paper in summer 1998, I acknowledge that that is a long time. However, a number of new issues have arisen since then: notably, the extension of possibilities for licensing, trafficking and brokering, as well as matters relating to licence production and the responses to the two reports of the quadripartite committee of the House of Commons. They are new issues which the Government have to consider in their response to the consultation on the White Paper.
Lord Chalfont: My Lords, does the Minister agree that the brokering and trafficking in arms, especially to third-world countries and those with authoritarian regimes, is an extremely destabilising procedure? Can the Minister assure the House that the Government will consider with great urgency the Question asked by the noble Lord, Lord Wallace of Saltaire? This is a dangerous process.
Lord McIntosh of Haringey: My Lords, I agree with the noble Lord, Lord Chalfont. That is why the Secretary of State made such a strong statement on this subject. By licensing procedures, we would be seeking to adhere to the principles set out in the statement made by the Foreign Secretary in July 1997 when he expressed our antagonism about arms used for internal repression or external aggression. Clearly, arms brokering and trafficking, either by United Kingdom citizens or companies registered in the United Kingdom, could contribute to those destabilising influences. That underlines the importance of trying to put a stop to such process. However, as the noble Lord will recognise, there are huge practical difficulties in doing that.
Lord Avebury: My Lords, will the legislation include the transport of arms brokered by somebody else? Has the Minister noticed that the allegation that many of

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the shipments of arms for illicit use in African conflicts are said to have been shipped by companies operating aircraft registered in the United Kingdom?
Lord McIntosh of Haringey: Yes, my Lords. Brokering as opposed to direct trafficking involves persons acting as agents. The legislation will certainly include agents for the transportation of arms.
Lord Burnham: My Lords, are the Government satisfied that there is adequate examination and checks on end-user certificates?
Lord McIntosh of Haringey: My Lords, that again is a difficult area. There is no universal and consistent programme of checking end-user certificates. That is why the European Union produced its code of conduct. It is extremely difficult to check and great efforts are made to avoid public knowledge of what happens to arms after they have been exported. That was a major part of the thrust of the Scott inquiry.

Regent's Park
3.1 p.m.
Lord St John of Fawsley Lord St John of Fawsley asked Her Majesty's Government:
What is their policy towards the role of the Royal Parks Agency in relation to The Regent's Park.
Lord McIntosh of Haringey: My Lords, the Government's policy is to require the Royal Parks Agency to manage Regent's Park, as with all the other Royal Parks, so as to enhance, protect and preserve it for the benefit of this and future generations; to sustain its fabric, buildings and structures; to enhance visitors' enjoyment by improving its services and facilities; and to maximise income where possible.
Lord St John of Fawsley: My Lords, I thank the Minister for that reply. In applying those principles, does he condemn as an act of vandalism the proposal to set up a commercial garden centre in the middle of the park, not far from Queen Mary's Rose Garden and abutting the Garden of Meditation of St. John's Lodge? Will he also get rid of the statues and sculptures of Mr Ronald Rae, which are disfiguring and have disfigured for over 12 months the Nesfield Garden? And while he is in the Nesfield Garden, will he get his agency to remove the hideous concrete platform from which, during the summer, cassettes of bird song were hired out to unsuspecting tourists, thus preventing them from hearing the real song of indigenous birds in the trees?
Lord McIntosh of Haringey: My Lords, if I may take those questions in reverse order, we were not aware that there was still a concrete platform where the so-called "talking trees" had been. We shall certainly look
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into that. The Ronald Rae statues will be removed by March of next year and that area will be returned to parkland.
On what I believe to be the noble Lord's most urgent point, the question of proposals for a commercial garden centre at Chester Road, those proposals are at a very early stage. Plans are being prepared to apply to Westminster City Council for Circular 1884 permission for such a garden centre. Of course, major issues of disturbance, car parking and so forth will have to be considered, both by the Royal Parks Agency and by the local planning authority.
Lord Strabolgi: My Lords, can my noble friend say whether the recent announcement that the Royal Parks have to pay for themselves represents official government policy?
Lord McIntosh of Haringey: My Lords, I am not aware of any recent announcement that the Royal Parks have to pay for themselves. They do not pay for themselves and it has never been intended that they should pay for themselves. In my first Answer I said that one of the objectives in the Royal Parks corporate plan was to maximise income. But that would be supplementary to the grant-in-aid which the Royal Parks Agency receives.
Baroness Oppenheim-Barnes: My Lords, will the Minister accept that I wholeheartedly support a great deal of what my noble friend Lord St John of Fawsley said? In addition to those concerns, I add the problem of traffic management in the Inner Circle. It is already heavily trafficked and parking facilities are extremely expensive, often excluding disabled persons wishing to use the park. Moreover, the agency is extremely arrogant in its approach to traffic management and imposed schemes which are running at present which cause great inconvenience and danger to permanent residents.
Lord McIntosh of Haringey: My Lords, there is no easy solution. There are those—including the noble Lord, Lord St John—who believe that there should be even more severe restrictions on traffic in the Royal Parks, particularly through traffic. I fear that there is an insoluble conflict between that aim and the aim of the noble Baroness, Lady Oppenheim-Barnes, to remove obstacles to traffic. Of course there are problems in the Royal Parks; they are part of central London. I acknowledge also that problems exist in the Inner Circle. I was not aware of specific problems for disabled people and would be glad to hear more from the noble Baroness on that subject.
Lord Goodhart: My Lords. I declare an interest as someone who lives in a flat on the Outer Circle. Is the Minister aware that a severe problem arises in the Royal Parks, particularly Regent's Park, through the intrusive effect of tall buildings? Are the Government

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therefore concerned about the potential damage which may be caused to Regent's Park by the prospective tall development at Paddington Basin?
Lord McIntosh of Haringey: My Lords, we are aware of the proposals for tall buildings at Paddington Basin and the Royal Parks Agency formally objected to that development on the grounds that there will be visual intrusion, particularly in Regent's Park.
Lord Elton: My Lords, in reply to his noble friend Lord Strabolgi, the noble Lord, Lord McIntosh, said in his first Answer that one of the aims of the agency was to "maximise profit". Before those words he used the phrase, "as far as possible". Can the Minister remind us what the limiting factor is on the maximisation of profit? There is clearly a conflict of interest between the quiet enjoyment of the park and the exploitation of it for commercial purposes. On that hangs the whole quality of the park itself.
Lord McIntosh of Haringey: My Lords, my actual words in my first Answer were,
"to maximise income where possible".
That possibility depends on a congruity with the other objectives I set out in my first Answer. The noble Lord, Lord Elton, is right. There is always the possibility of conflict between maximising income and the other objectives, including the quiet enjoyment of the parks. But that does not mean they are totally mutually exclusive. The committee of Dame Jennifer Jenkins acknowledged the need to raise income from the Royal Parks and a lot of income-producing activities in the Royal Parks are popular and bring people to the parks.
Baroness Thomas of Walliswood: My Lords, does the Minister recognise that there is a difference between, for example, having a series of theatrical performances during the summer at Regent's Park, and having a permanent commercial activity in the centre of the park? It is that to which a number of people, including myself, object so strongly.
Lord McIntosh of Haringey: My Lords, we recognise that there is a great deal of difference between the open-air theatre and the possibility of a commercial garden centre at Chester Road. The points made by the noble Baroness are relevant to the considerations of the Royal Parks and Westminster City Council.
Lord St John of Fawsley: My Lords, in view of the satisfactory and sympathetic answers of the noble Lord, and the introduction by the noble Baroness the Leader of the House of the new constitutional idea of self-nomination, will the noble Lord, Lord McIntosh, consider nominating himself as Secretary of State because he clearly has all the qualifications for the position?
Lord McIntosh of Haringey: My Lords, the Prime Minister might have a thing or two to say about that.

Criminal Justice and Court Services Bill
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 to 4,

Schedule 1,

Clauses 5 to 11,

Schedule 2,

Clauses 12 to 19,

Schedule 3,

Clauses 20 to 26,

Schedule 4,

Clauses 27 to 63,

Schedule 5,

Clauses 64 to 67,

Schedule 6,

Clauses 68 to 71,

Schedule 7,

Clause 72,

Schedule 8,

Clauses 73 to 79.—(Lord Bassam of Brighton.)

On Question, Motion agreed to.

Political Parties, Elections and Referendums Bill
3.10 p.m.
Lord Bassam of Brighton: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE LORD CHANCELLOR in the Chair.]
Clause 103 [Designation of organisations to whom assistance is available]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 233:
Page 66, line 2, leave out from ("applies,") to ("specify") in line 3 and insert ("the Commission shall").
The noble Lord said: Clause 103 deals with the question of designating the umbrella organisations conducting a referendum with a view to giving them assistance. It is a simple enough matter when one question is asked in a referendum and the answer is either "yes" or "no". It does not take one too long to work out that there are therefore two sides and two umbrella organisations. However, subsection (3) deals with the situation in which there are more than two possible outcomes; that is, when there are two questions.
There were two questions in the Scottish referendum. The first asked whether voters wanted a Scottish Parliament and the second asked whether they wanted it to have tax-raising powers. Members of the Committee can therefore see that there are four possible outcomes: yes/yes; yes/no; no/yes; and no/no. Indeed, some people took up all four positions. Clearly, a majority answered "yes" to both questions and a minority answered "no" to both questions. However, some people decided that they wanted a Scottish Parliament but that they did not want it to have tax-raising powers and others did not want a Scottish Parliament but thought that, if there were to be one, it ought to have tax-raising powers. The problem is deciding how to define the umbrella organisations involved.
Interestingly, as the Bill stands, the Secretary of State will decide about the umbrella organisations as regards those outcomes. My first amendment suggests that it should not be the Secretary of State but the electoral commission. I believe that the case for that is unanswerable. If one is to make referendums acceptable in this country, the Government must not be seen to be taking things apart in deciding what the rules are and who is or is not playing. Therefore, I submit that the electoral commission should decide that matter.
My Amendment No. 234 addresses the question of how the commission should decide on the umbrella groups or "designated organisations" as they are called. Let us say that, for example, two different organisations decided to campaign for the same outcome in a referendum on proportional representation. I read in an extract from Mr Ashdown's diaries in this week's Times that the Prime Minister used almost exactly the same words in respect of such a referendum as he used last week in respect of a referendum on the euro; namely, that if there were a referendum tomorrow he would vote "no". That must come as interesting news to the Liberal Democrats who must be wondering about their bedfellows in such referendums. At least they know where I and my party stand on such issues, but they must be unsure about their partners.
As regards a referendum on proportional representation, it is possible that a significant proportion of the Labour Party will not want proportional representation and will want to set up an organisation in order to campaign for first past the post. "Labour For First Past The Post" might be a good title. I accept that some people in my party would approve of proportional representation but clearly the majority of them would be in favour of keeping the first-past-the-post system.
It may be that those two organisations would find it difficult to come together. Labour members advocating first past the post might find it uncomfortable to team up with Conservatives and therefore there would be two potential umbrella
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organisations. How will the commission deal with that? It is one of the points my amendment addresses by stating:
"Where the Commission is satisfied that more than one permitted participant has demonstrated … substantial support … [and a] principal reason for campaigning … they may designate two or more permitted participants".
Perhaps some members of the Liberal Democrat party will want to form an organisation for "Liberal Democrats For First Past The Post" or "For a Fair Electoral System", as I believe first past the post is. They may not want to team up with either Labour or Conservative members.
One can see that a number of genuine outcomes could come from a decision to hold a referendum. I hope that my amendment is therefore helpful to the Government and, more importantly, to the electoral commission, which will have to make those difficult decisions. I look forward to hearing the noble Lord, Lord Bach, explain why the Government have decided that the Secretary of State should decide on the outcomes and what is wrong with my amendment which helps to guide the commission to its conclusion on how many umbrella organisations, if more than one, it should recognise. I beg to move.
3.15 p.m.
Lord Bach: These amendments are concerned with the designation of those permitted participants which may then benefit from the assistance specified in Clause 105, including a grant of up to £600,000 and free mailshots.
Amendment No. 233 is concerned with subsection (3) of Clause 103. This subsection addresses the possibility that there might be more than two possible outcomes to a referendum. Where that is the case it may or may not be appropriate to provide for the designation of a permitted participant in respect of each possible outcome. I say "may not" because certain possible outcomes may be contradictory or absurd.
Clause 103(3) provides that, in such circumstances, the Secretary of State may by order specify the possible outcomes in respect of which a permitted participant may be designated. I understand that the noble Lord objects to that provision. Such an order could be made only after consultation with the electoral commission and would be subject to the affirmative resolution procedure, thereby leaving the final say in determining such matters to Parliament.
Lord Mackay of Ardbrecknish: I am grateful to the Minister for giving way. The issue will arise later in another context, but I heard what he said about the electoral commission being consulted. Will its view be made public?
Lord Bach: It would be extremely difficult for the commission's view not to be made public. However, I shall seek further information so as not to mislead the noble Lord.

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Amendment No. 233 would vest the decision in the electoral commission alone, removing any parliamentary scrutiny. We do not believe that to be appropriate. Parliament determines whether a referendum is held. Parliament would ultimately agree the form of the proposition or question to be put to the electorate. Equally, it is entirely appropriate that Parliament should have the final say in determining which of the possible outcomes should be supported from public funds. Of course the electoral commission should have an important say in this matter and its views will carry considerable weight.
However, there is a wider political perspective to determining such matters which an independent electoral commission cannot properly bring to bear. We have provided for proper parliamentary scrutiny of the Government's decision and I suggest that the order-making power set out in Clause 103 is the right way for these matters to be determined.
Amendment No. 234 provides for the designation of more than one permitted participant in respect of a particular outcome in a referendum. It raises drafting points but, suffice it to say, by replacing the existing subsection (5) of Clause 104 it is not clear on what basis the commission could decide to designate only one permitted participant in respect of a particular outcome where there had been more than one applicant.
The amendment envisages that the commission may designate more than one permitted participant in respect of a particular outcome if certain criteria are met; namely, that the commission is satisfied that more than one applicant enjoys substantial support and has a distinct reason for campaigning for that outcome, and that it would be unreasonable to refuse designation. In those circumstances the commission will apportion such assistance as is available between the designated permitted participants as it thinks fit.
That is clearly contrary to what the Neill committee envisaged. In framing its proposals the committee's intention was to ensure that each side should be able to mount a campaign so that each side of the argument was heard. The committee recommended that the available core funding should, therefore, be sufficient to cover the establishment of a campaign headquarters with basic equipment and staff. The committee considered that a sum equivalent to that provided to the two umbrella organisations in the 1975 referendum would be appropriate.
The committee did not envisage that more than one group on each side should receive a grant. I quote briefly from paragraph 12.35 which states:
"No more than one organisation on each side should be funded"
Still less did it envisage that that assistance should be carved up among a number of disparate groups, which would defeat its purpose. The Neill committee came to the view that if no single suitable recipient could be identified on one side of the argument, neither side should benefit from such core funding.
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As drafted, the Bill simply requires the commission to identify the permitted participant which "to the greatest extent" represents those campaigning for a particular outcome. That broad-brush test points to the designation of an umbrella organisation which represents the broad spread of opinion on one side of a referendum question: it is essentially the test used in the 1975 referendum. The White Paper on that referendum indicated that assistance would be available to organisations "which adequately represent" the two sides. However, the noble Lord's amendment would involve the commission in an altogether different kind of exercise. Its task would not be to ask which, if any, of the organisations stood out as representing the case for the particular outcome, but, instead, whether each of the competing claims, on its own merits, deserved a slice of the pie.
To assist the commission with this altogether more difficult task the noble Lord seeks to devise some rather more specific criteria, such as the separate levels of support enjoyed by different groups and their distinct reasons for campaigning. Although they might look objective on paper, inevitably they would open up the commission's decision to challenge; indeed, the proposal that the commission should grant an application if it would be unreasonable to do otherwise would positively invite it.
Nor is it easy to see how the assistance available to designated organisations might be apportioned as proposed. Certainly, the grant might be divided up but we do not see how the free mailing facilities could be. If there is to be only one mailshot, are the two or more designated organisations on a given side of the campaign supposed to divide up the country between them? Or perhaps it is the noble Lord's intention that each designated organisation on a particular side should benefit from a free mailshot so that it could explain its distinctive arguments to the electorate. If so, each additional designated organisation would cost the public purse £3.6 million for a mailing to each household. More to the point, it would give one side in the campaign an unfair advantage over the other, which was the very thing that the Neill committee sought to overcome.
The whole purpose of the designation procedure is to ensure that there is an adequately resourced "yes and no" campaign in any referendum. To make provision for the designation of a number of organisations on each side would limit the resources available to them and could thereby result in the arguments on one side or the other not being properly heard. We believe that that would defeat the object of these provisions. For those reasons, I invite the noble Lord to withdraw his amendment.
The noble Lord asked whether the views of the commission would be made public. As the noble Lord is aware, that matter is not covered in the Bill. However, the views of the commission will undoubtedly be published either by the commission itself or by the Government. I refer to the next line of

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my advice with some trepidation: the provisions of the Freedom of Information Bill would also probably apply.
Lord Elton: As to the first of my noble friend's amendments, I am a little anxious about the Minister's suggestion. Presumably, the issues to be decided by referendum will be highly political, and they may also be complex. The decision as to which organisations shall be funded to campaign depends on the possible outcome to be specified in relation to permitted participants. I do not suggest that the following example would have happened in this case but it illustrates the mechanics of it. Let us suppose that the governing party at Westminster had a very large majority and wished to have a devolved assembly elsewhere in the United Kingdom but that it should not have tax-raising powers. The specified permitted outcome might be that there could be a devolved assembly but not one with tax-raising powers. That would be such a broad, blunt and controversial issue that, no doubt in the light of public pressure, it would be decided that both outcomes could be possible.
In trying to provide for the unforeseen future, in which perhaps some of our citizens regard certain matters as of great importance but central government do not agree and may not want others to be persuaded to that view, one is giving to the executive of the day a very powerful weapon to suppress the expression of minority interests. I believe that that is something that the Committee should think about carefully before proceeding.
Lord Mackay of Ardbrecknish: I was interested in the Minister's reply. I do not believe that he turned his mind to the question which arose in the Scottish referendum where there could have been four umbrella groups to address the four possibilities. Although only two sides of the argument were up and running, an attempt was made to create an organisation to say "yes" to a Scottish parliament but "no" to tax-raising powers, and the other way round; in other words, "no" to a Scottish Parliament but "yes" to tax-raising powers, on the principle that if one had to have such an arrangement it should be a proper one and take responsibility for some of its own decisions vis à vis the taxpayer. Those two organisations did not get off the ground simply because a great deal of support was not forthcoming. Clearly, if the electoral commission had given them funding to get off the ground they would have been up and running. It would not have influenced the final outcome, but there would have been a good deal more split voting than there was in the final analysis.
I do not approve of two-question referendums which complicate the issue; there should be only one question and that should be the end of it. But if the Government insist on two questions, or even more, obviously this Bill should contain provisions to ensure that all the various outcomes can be covered by umbrella organisations. Can the Minister provide any advice as to that? To help the noble Lord in that
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regard, perhaps one may go back to some of his other answers. Although I appreciate the Minister's point about the electoral commission having to make difficult decisions, this Bill is still in an unsatisfactory position. The Secretary of State still has some power over how a referendum is conducted.
One is supposed to have a generic referendum Bill so that when Parliament wants a referendum the only matter that it must decide, after (one hopes) consultation with the electoral commission, is the question to be put and on what date the referendum should be conducted. The rest of the rules should slot into place, as they do for a general election, without any need for Secretaries of State to take powers to make rules and regulations for one specific referendum.
Perhaps I may suggest to the Minister that no great pressure arises from the part of the Bill on referendums. We could quite easily take out the whole matter which would allow a quicker passage of the Bill and enable us to reach the end of the Session more quickly. It would also allow Her Majesty to come down to this Chamber very much sooner than is likely if we carry on with the whole of the Bill. I suggest to the Minister that he take out the referendum part completely. His right honourable friend the Prime Minister has clearly signalled that this part will not be needed because we will not have a referendum on the euro in the next Parliament. Even if we do, the Prime Minister will vote no, which at least gives me some confidence about the eventual outcome.
But it is a serious point. If this is not a generic referendum Bill, which clearly it is not—otherwise I would not need my first amendment and the Secretary of State would have no involvement—why do not the Government take away this part of the Bill and come back with it in the next Session? After all, that is only two or three weeks away, or two or three months away or perhaps next year—who knows? They could then give us a proper generic referendum Bill which we could discuss separately from the provisions surrounding general elections, which I understand the noble Lord wants to get on the statute book quickly because of the election that the Government want to hold on the first Thursday in May.
3.30 p.m.
Lord Bach: I have learnt a great deal from the noble Lord about both the Prime Minister's views and about the date of the general election. I am very grateful to him for telling me. As always, the noble Lord is very seductive indeed in the proposition he puts forward, which is that the whole of the referendum part of the Bill should be taken out and brought back on another day. However, I am afraid that I shall not fall for that, seductive though it is. It is important for all political parties and all those concerned with these matters that we get the Bill through as quickly as possible. Who said that the only referendum would be on the euro? How does the noble Lord know that there may not be referendums on other items before any referendum on the euro?

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Where there are two questions, a particular outcome may he absurd. It would not therefore be appropriate to have a designation in such cases. That then opens the possibility of two organisations being designated on one side and only one on the other. There is a political judgment to be made, which in the end must rest with Parliament. It will rest with Parliament through the affirmative order that will have to go through both Houses of Parliament before it can be implemented.
Lord Elton: Does the noble Lord then accept my point that it is a political judgment and that it may be about a political question? That will then give an advantage to the party in the majority in Parliament at the time which could have the effect of silencing the expression of the views of the minority. If that is the case, this is yet another example of the increase of the powers of the Executive; and it is to be regretted.
Lord Bach: The power to make the final decision would not be taken away from Parliament. That would be another loss of Parliament's power. The noble Lord cannot have it both ways. The Secretary of State will make a recommendation and Parliament can either accept it or refuse it. As I have already said, the commission will have made its views publicly known. One can imagine the outcry there would be if the eventuality happened which the noble Lord fears. I think we can entrust it to Parliament.
Baroness Carnegy of Lour: I do not think that the noble Lord fully understood the implications of what my noble friend Lord Mackay was saying about the possibility of four outcomes, as happened in Scotland. During that campaign it was very difficult indeed for people to work out the implications of the interrelationship between tax-raising powers and the devolved body. Those implications are only now beginning to dawn on people. Had there been a proper discussion during the referendum campaign that would have been understood from the outset. Perhaps I may suggest to the Minister that he should look carefully at what my noble friend said when he spoke to the second amendment and appreciate that the answer he has just given did not address the problem.
Lord Lamont of Lerwick: I support what was said by my noble friend Lord Mackay. Surely the whole purpose of the electoral commission is to take away from the Government, who, by definition, are an interested party, matters that are accurately politically sensitive. As has been demonstrated in this short debate, the Government could easily give themselves an advantage by taking the decision as to whether there should be one umbrella organisation or two umbrella organisations. That might be important in a referendum. It is fairly extraordinary of the Minister to say, "Ah, but the recommendation of the electoral commission will have been published. There will be an outcry if we ignore that". On various points the Government are ignoring the recommendations of the
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Neill committee. We have not had much of an outcry because everyone knows the Government can normally get their way. This is not an adequate safeguard.
Lord Mackay of Ardbrecknish: My two noble friends are quite right. When, towards the end of his remarks, I heard the Minister say that it was up to the Government to decide and not the electoral commission, I began to wonder why we are to have an electoral commission at all. It was a little like saying we will have a referee—
Lord Bach: I believe I said it was for Parliament to decide, not the Government. Parliament will have the final say.
Noble Lords: Oh!
Lord Bach: I see the difference. Do noble Lords opposite not see it?
Lord Mackay of Ardbrecknish: I have been in Parliament for a long time. I know the distinction. But, when the truth is told, it is more imagined than real. The point is that, whether it is Parliament or whether it is the Government, I thought that the principle behind an electoral commission was that it was to be a kind of referee; especially when it came to referendums, as we are discussing now. You cannot say, "Let us have a referee", and then say "But all his decisions are subject to a decision and a vote by the players after he makes his decision whether they will go along with the referee". That is thoroughly unsatisfactory.
Like my noble friend Lady Carnegy of Lour, I do not think the Minister addressed the question of the four possible outcomes. He seemed to think that some of the outcomes would be so ludicrous as not to be worthy of contemplation. But the truth is that in Scotland the two umbrella outcomes were "yes, yes" and "no, no". In fact the Labour Party in Scotland actually chose the third option: to have a Scottish Parliament and not to have tax-raising powers because it said clearly that it had no intention of using those powers. So it campaigned for a "yes, yes". In fact it should have been campaigning for a "yes, no" because that is how it has turned out. That is what the Government will do. So the "yes, no" position was a perfectly legitimate one to argue and to be one of the umbrella organisations to get some of the money.
I started off this debate as a probe, but like all probes one begins to turn over stones that one did not realise were there. I must say that the Government's attitude to the electoral commission has rather appalled me. I wonder what this body is now worth. Indeed, I would suggest that between now and Report stage the noble Lord reads the Nairne committee's recommendations on the whole issue. Perhaps he will see how far adrift he is from reality. I am so appalled by that answer and by the idea that the electoral commission is just there for a bit of window dressing

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to allow the Government to get their own way through Parliament—that is what it comes to—that I shall test the opinion of the Committee.
3.39 p.m.
On Question, Whether the said amendment (No. 233) shall be agreed to?
Their Lordships divided: Contents, 98; Not-Con tents, 160.

Division No. 1

CONTENTS

Aberdare, L.

Howe of Aberavon, L.

Ampthill, L.

Jopling, L.

Anelay of St Johns, B.

Kimball, L.

Astor, V.

Laing of Dunphail, L.

Astor of Hever, L.

Laird, L.

Beaumont of Whitley, L.

Lamont of Lerwick, L.

Biffen, L.

Luke, L.

Blackwell, L.

Lyell, L.

Blatch, B.

McColl of Dulwich, L.

Bledisloe, V.

McConnell, L.

Boardman, L.

Mackay of Ardbrecknish, L.

Brabazon of Tara, L.

Mackay of Clashfern, L.

Brightman, L.

Marsh, L.

Byford, B.

Masham of Ilton, B.

Caithness, E.

Mayhew of Twysden, L.

Campbell of Alloway, L.

Miller of Hendon, B.

Campbell of Croy, L.

Monro of Langholm, L.

Carlisle of Bucklow, L.

Mowbray and Stourton, L.

Carnarvon, E.

Murton of Lindisfarne, L.

Carnegy of Lour, B.

Noakes, B.

Colwyn, L.

Northbourne, L.

Cope of Berkeley, L.

Northbrook, L.

Cox, B.

Northesk, E.

Crathorne, L.

Park of Monmouth, B.

Crickhowell, L.

Pearson of Rannoch, L.

Cuckney, L.

Peel, E.

Dean of Harptree, L.

Platt of Writtle, B.

Denham, L.

Plumb, L.

Dixon-Smith, L.

Renfrew of Kaimsthorn, L.

Eccles of Moulton, B.

Renton, L.

Elles, B.

Roberts of Conwy, L.

Elliott of Morpeth, L.

Rogan, L.

Elton, L.

Rotherwick, L.

Ferrers, E.

Ryder of Wensum, L.

Fookes, B.

Seccombe, B. [Teller]

Forsyth of Drumlean, L.

Sharpies, B.

Fraser of Carmyllie, L.

Shaw of Northstead, L.

Freeman, L.

Simon of Glaisdale, L.

Gardner of Parkes, B.

Soulsby of Swaffham Prior, L

Geddes, L.

Strathdyde, L.

Gilmour of Craigmillar, L.

Swinfen, L.

Glentoran, L.

Thomas of Gwydir, L.

Goschen, V.

Trumpington, B.

Gray of Contin, L.

Vinson, L.

Harris of High Cross, L.

Vivian, L.

Hayhoe, L.

Waddington, L.

Henley, L. [Teller]

Wade of Chorlton, L.

Hooper, B.

Wilcox, B.

Howe, E.

Young, B.

NOT-CONTENTS

Acton, L.

Amos, B.

Addington, L.

Andrews, B.

Ahmed, L.

Archer of Sandwell, L.

Allen of Abbeydale, L.

Avebury, L.

Alli, L.

Bach, L.

Alton of Liverpool, L.

Barnett, L.

154

Bassam of Brighton, L.

McIntosh of Haringey, L. [Teller]

Berkeley, L.

Billingham, B.

MacKenzie of Culkein, L.

Blackstone, B.

Mackenzie of Framwellgate, L

Blease, L.

McNally, L.

Blood, B.

Maddock, B.

Borrie, L.

Mason of Barnsley, L.

Bradshaw, L.

Massey of Darwen, B.

Bragg, L.

Merlyn-Rees, L.

Brennan, L.

Methuen, L.

Brooke of Alverthorpe, L.

Mishcon, L.

Brookman, L.

Morgan, L.

Bruce of Donington, L.

Newby, L.

Burlison, L.

Nicol, B.

Carter, L. [Teller]

Northover, B.

Christopher, L.

Orme, L.

Clarke of Hampstead, L.

Parekh, L.

Clinton-Davis, L.

Patel of Blackburn, L.

Cocks of Hartcliffe, L.

Paul, L.

Craig of Radley, L.

Peston, L.

Dahrendorf, L.

Phillips of Sudbury, L.

David, B.

Plant of Highfield, L.

Davies of Coity, L.

Puttnam, L.

Davies of Oldham, L.

Ramsay of Cartvale, B.

Desai, L.

Randall of St. Budeaux, L.

Donoughue, L.

Rea, L.

Dormand of Easington, L.

Redesdale, L.

Dubs, L.

Rendell of Babergh, B.

Elder, L.

Rennard, L.

Evans of Parkside, L.

Richard, L.

Ezra, L.

Richardson of Calow, B.

Farrington of Ribbleton, B.

Rodgers of Quarry Bank, L.

Faulkner of Worcester, L.

Roll of Ipsden, L.

Filkin, L.

Roper, L.

Fitt, L.

Russell, E.

Fyfe of Fairfield, L.

Sandberg, L.

Gale, B.

Sawyer, L.

Geraint, L.

Scott of Needham Market, B.

Gibson of Market Rasen, B.

Serota, B.

Gladwin of Clee, L.

Sharp of Guildford, B.

Goodhart, L.

Shepherd, L.

Goudie, B.

Shore of Stepney, L.

Gould of Potternewton, B.

Shutt of Greetland, L.

Graham of Edmonton, L.

Greengross, B.

Simon, V.

Gregson, L.

Slim, V.

Grenfell, L.

Smith of Clifton, L.

Hardy of Wath, L.

Smith of Leigh, L.

Harris of Greenwich, L.

Stoddart of Swindon, L.

Harris of Haringey, L.

Stone of Blackheath, L.

Harris of Richmond, B.

Strabolgi, L.

Harrison, L.

Symons of Vernham Dean, B.

Haskel, L.

Taverne, L.

Hayman, B.

Taylor of Blackburn, L.

Hilton of Eggardon, B.

Taylor of Gryfe, L.

Hollis of Heigham, B.

Tenby, V.

Hooson, L.

Thomas of Walliswood, B.

Hoyle, L.

Thomson of Monifieth, L.

Hughes of Woodside, L.

Tomlinson, L.

Hunt of Kings Heath, L.

Tordoff, L.

Irvine of Lairg, L. (Lord Chancellor)

Turnberg, L.

Turner of Camden, B.

Islwyn, L.

Uddin.B.

Jay of Paddington, B. (Lord Privy Seal)

Varley, L.

Wallace of Saltaire, L.

Jeger, B.

Walmsley, B.

Jenkins of Putney, L.

Warwick of Undercliffe, B.

Judd, L.

Whitaker, B.

King of West Bromwich, L.

Whitty, L.

Kirkhill, L.

Wigoder, L.

Lea of Crondall, L.

Williams of Crosby, B.

Lincoln, Bp.

Williams of Elvel, L.

Lipsey, L.

Williamson of Horton, L.

Lockwood, B.

Winston, L.

Lofthouse of Pontefract, L.

Woolmer of Leeds, L.

Macdonald of Tradeston, L

Young of Old Scone, B.

3.50 p.m.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 233A:
Page 66, line 12, leave out subsection (5).
Clause 103, as amended, agreed to.
Clause 104 [Applications fir designation under section 103]:
[Amendment No. 234 not moved.]
Clause 104 agreed to.
Clause 105 agreed to.
Schedule 11 [Assistance available to designated organizations]:
Lord Bach Lord Bach moved Amendment No. 234A:
Page 146, line 19, leave out ("Post Office regulations") and insert ("such reasonable terms and conditions as the universal service provider concerned may specify").
The noble Lord said: I hope that this group of government amendments will prove to be slightly less controversial than the last group. All bar the last of these amendments relate to paragraph 1 of Schedule 11 to the Bill. The paragraph sets out the right of designated referendum organisations to send a free mailshot to every elector or household in the area in which the referendum is being held. As it stands, paragraph 1 refers to the Post Office and to Post Office regulations. This reflects the fact that, at present, the Post Office is the only universal postal service provider.
The Committee will remember well the Postal Services Act 2000. That Act will alter the framework for the provision of postal services in this country. Under the provisions of that Act, there may, in due course, be a number of licensed universal postal service providers, any one of which could deliver a free mailshot on behalf of a designated referendum organisation. These amendments take account of this new system of regulation for postal services. The amendments mirror those made by the Postal Services Act to Section 91 of the Representation of the People Act, which provides for a free mailshot for candidates at a parliamentary election.
Amendment No. 234L is concerned with those provisions of Schedule 11 governing referendum campaign broadcasts. Paragraph 4(4) places the licensing body under a duty to have regard to the views expressed by the electoral commission before it makes any rules under Sections 36 or 107 of the Broadcasting Act 1990. The amendment makes it clear that that duty extends only to views expressed by the commission in relation to referendum broadcasts. I beg to move.
Viscount Astor: I should like to ask the Minister two questions. First, he stated that the amendments make provision for universal postal service providers. Can he confirm my assumption that, in any given area, such a universal service provider would carry out exactly
156
the same role as that which would have been provided by the Post Office and thus would be subject to the same regulations? Furthermore, do the regulations which are to apply come from the Postal Services Act 2000? If not, to which regulatory provisions would a universal postal service provider be subject?
Secondly, Amendment No. 234L refers to provisions on broadcasting during referendums. The Minister used a phrase which somewhat surprised me. He referred to the fact that a broadcaster would need to,
"have regard to the views expressed by the electoral commission".
Is that not a slightly weak statement? I presume that any broadcasting body would be subject to the same full regulatory framework which applies to all the current broadcasters: the BBC, ITV and so forth. Can the noble Lord assure me that a new broadcaster, whether it be an Internet service or a cable company, will not only need to "have regard to", but will also be subject in exactly the same manner to the existing rules which pertain to broadcasts made during elections and referendums?
Lord Fraser of Carmyllie: Those of us who were engaged in the "Think Twice" campaign in Scotland preceding the establishment of the Scottish Parliament will recollect how helpful the Post Office was at that time. When we had gathered together sufficient money—the service was by no means free—the Post Office agreed to distribute our literature to every household in Scotland. Most conveniently, it was prepared to do so some five days after the referendum had taken place. Not surprisingly, we did not consider that to be the best use of our limited funds.
Can the Minister give the Committee a reassurance that the revised provisions in Schedule 11 would require the Post Office or a universal postal service provider to undertake such distribution exercises at a time falling within a reasonable period before the referendum takes place; namely, neither too far in advance, nor—as in the circumstances that we encountered—after the event?
Lord McNally: I should like to comment along similar lines. We should recall the experience of the election campaign for the Greater London Assembly. Only after this House insisted on it was a freepost granted. Given the "reasonable terms and conditions" which may be specified by the universal service provider, what would happen if one or other of the competing parties finds those conditions unsatisfactory? What right of appeal has been put in place for a party that wishes to seek redress? Problems may arise if a campaigning organisation wishes to specify that its literature will take a certain form. Alternatively, the universal service provider may attempt to insist on rather irksome conditions.

157
A decision may seem reasonable from the universal service provider's point of view, but it may be quite unreasonable for one or other of the campaigning organisations. I should appreciate further clarification on the right of appeal.
Lord Bach: I think that I can give noble Lords the reassurances they seek.
The first amendment is consequential on changes to the framework of postal services being made by the recent Act. That Act enshrines in law a universal postal service which must be provided to all UK residents at a uniform tariff for postal packets weighing less than 20 kilograms. Certain postal operators who apply for a licence will be required to provide such services through the imposition of a licence condition. Those operators who are required by their licence to provide all or part of a universal postal service will be regarded as universal service providers. It is anticipated that the new Post Office plc will be such a provider, but in due course there may be others. The way in which they carry out their functions will need to be in accordance with the provisions laid down in the recent Act.
As regards the level of efficiency of such new providers, we cannot give any firm undertakings on that point. However, in response to the question put by the noble and learned Lord, Lord Fraser of Carmyllie, I am happy to give him the reassurance he seeks on that point.
So far as concerns the question about the electoral commission asked by the noble Viscount in relation to Amendment No. 234L, I can confirm that this amendment relates to referendum broadcasts; namely, the equivalent of party political election broadcasts, rather than to the general news coverage of referendums. In that sphere, the normal rules of balance and impartiality will continue to apply.
The noble Lord, Lord McNally, asked about appeals mechanisms. Our view at present is that appeals would be made to the Post Office, but I should like to write to him in more detail. Furthermore, I shall ensure that a copy of that letter is placed in the Library.
4 p.m.
Viscount Astor: The Minister has given a helpful reply. However, I am not sure it has cleared up my question in relation to broadcasting. I shall read what he said and if I have any further questions, I shall write to him before the next stage. It is a technical point.
Perhaps the Minister can clarify this issue for the Committee. The amendment states,
"such reasonable terms and conditions as the universal service provider concerned may specify".
If during a referendum the Post Office covers one area of the country and a universal service provider covers another, can the Minister give an assurance that those "reasonable terms and conditions" will not vary from area to area and that one service provider will not have
158
different terms and conditions from another? It is important that the rules for all those involved in a referendum are the same throughout the country.
Lord Bach: The universal service providers will be under licence from the Post Office, which will specify what services the universal service providers must provide.
Viscount Astor: Does that mean that they will be the same throughout the country?
Lord Bach: They will be consistent. Whether they will be exactly the same, I cannot say.
Viscount Astor: I am sorry to come back on this, but it is rather bizarre that we might find ourselves in a position where different parts of England are subject to different terms and conditions during a referendum campaign. That is not terribly satisfactory. Perhaps between now and the next stage the Minister will consider this matter further and come back and clarify the position.
Lord Bach: Let us see whether I can do that now. Obviously there will be consistent specifications set out under the terms of the licence, but no one can say exactly when each of the universal service providers if they exist at the time—will post the free mailshot through the door. To some extent, that will have to be at the discretion of the service providers. But a specification that it will have to be carried out by a certain time—it is no good doing it after the referendum, for example—will of course apply.
On Question, amendment agreed to.
Lord Bach Lord Bach moved Amendments Nos. 234B to 234L:
Page 146, line 20, leave out ("charge for postage") and insert ("any charge for postage which would otherwise be made by a universal service provider").
Page 146, line 23, leave out ("regulations") and insert ("terms and conditions").
Page 146, line 27, leave out ("those regulations") and insert ("any such terms and conditions").
Page 146, line 28, after first ("of") insert ("any such").
Page 146, line 31, leave out ("72 of the Post Office Act 1969 (remuneration of Post Office for") and insert ("200A of the Representation of the People Act 1983 (remuneration of universal service provider for free postal").
Page 146, line 33, leave out ("the Post Office") and insert ("a universal service provider").
Page 146, line 34, leave out ("the Post Office in pursuance of the Representation of the People Act 1983") and insert ("such a provider in pursuance of that Act").
Page 146, line 37, at end insert—
(""universal service provider" has the same meaning as in the Postal Services Act 2000.").

Page 146, line 37, at end insert—
("() If this paragraph comes into force at a time when the amendments made to section 91 of the Representation of the People Act 1983 by the Postal Services Act 2000 have not come into force, then until such time as those amendments come into

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force, this paragraph shall have effect subject to such modifications as may be specified in the order under section 151 of this Act which brings this paragraph into force.").

Page 148, line 13, at end insert ("for the purposes of this subparagraph").
Schedule 11, as amended, agreed to.
Clause 106 [Referendum expenses]:
Lord Bach Lord Bach moved Amendments Nos. 234M and 234N:
Page 67, line 25, leave out ("either").
Page 67, line 27, leave out from ("purposes") to end of line 30.
The noble Lord said: These amendments were spoken to with Amendment No. 191. I beg to move.
On Question, Whether Clause 106, as amended, shall stand part of the Bill?
Lord Mackay of Ardbrecknish: With Clause 106 we enter into the arena of the expenditure which would be allowed in a referendum. Essentially, a number of amendments will be brought forward in the next few groups which look at this question from different angles. Perhaps the best way to start is with a clause stand part debate. I refer to the question that in referendums we do not attempt to impose limits on the expenditure of political parties or umbrella organisations.
There is a good basis for this. The first report on these issues was the Nairne commission report on the conduct of referendums to which reference has been made. The report considered all aspects of referendums. One of its main recommendations was the setting up of an electoral commission. I wish in particular to refer to guideline 14. It follows paragraphs in the report which discuss whether or not we should have limits on spending on referendums. The guideline states:
"On balance, it is not considered practical to exercise Government control over the total expenditure by those campaigning on either side in a referendum. Umbrella campaigning organisations should be required to undertake to provide accounts of monies received or spent on the campaign if they are to qualify for public money or services in kind".
So Nairne quite clearly said that there should not be a limit on spending.
I turn now to the report of the Neill committee. In the debate on the first of today's amendments, the noble Lord, Lord Bach, heavily prayed in aid the Neill committee to counter what I was saying. He quoted from its report and said, "That is it. Neill said such and such and that is what we should do". I just want to remind the Committee of what the Neill committee said on the question of referendum expenditure. It explicitly followed Nairne and rejected the approach taken in the Bill.
The committee pointed out that in referendums political parties may well not be the principal contestants. Indeed, political parties may be split on which side to support— just as the Labour Party, as I mentioned earlier, would be split in a referendum on
160
proportional representation. Who should decide on which side of the argument the £5 million allowed to the Labour Party should be spent?
The Neill committee looked into this issue and recognised the problems. I do not want to read it all out, but quoting from it saves me making the argument. The Neill committee makes a powerful case against the Government's current position and in favour of removing these limits. The report refers to the imbalance which is possible if one does not have limits, and it goes on to state:
"The case, in principle, for imposing spending limits in referendum campaigns is a strong one".
No doubt the Minister will quote that. However, it goes on:
"We believe, however, that it would be futile and possibly also wrong to attempt to impose such limits in connection with referendums. Ordinary election campaigns bear some resemblance to sporting contests, in the sense that they are fought by competing 'teams' in the form of the political parties. It is known long in advance that such contests will take place (though, in the case of general elections, the precise date may be uncertain). The political parties themselves are, in the great majority of cases, permanent institutions with leaders, members, headquarters, and professional staffs. By contrast, a referendum campaign is more like a free-for-all. Anyone can participate. Many do. The political parties may, or may not, be the principal contestants, It is often not known long in advance whether a referendum will take place, let alone when it will take place. Those on the Yes and 10 sides of the argument may never have worked together before—and may, quite possibly, be unwilling to work together now"—
a point I made earlier. This is the important point:
"It appears to us that under these circumstances it would be impracticable to try to control campaign spending. The number of individuals and organisations involved would often be too large. The time-scale would often be too short. Adequate accounting procedures would often be impossible to put in place. The administrative apparatus required would resemble one of Heath Robinson's most outlandish contraptions—and would almost certainly not work".
And yet the Government have gone ahead with spending limits which are indefensible in theory and unworkable in practice.
Amendment No. 237 seeks to ensure that at least an uncoupling is made between the results at the last election and the amount of money to be spent. Why should the amount that a political party can spend on a referendum be dependent on its votes in a previous general election? A referendum is an entirely different issue; it has nothing to do with a general election. In fact, if an issue had been decided at a general election, there would be no need for a referendum. Some might think that certain issues should be decided at general elections and not left to referendums, but that is not the road along which we are going.
As the Committee will hear, in a referendum on the euro, Labour, the Liberal Democrats, Plaid Cymru and the SNP could spend something like £9 million to scrap the pound, but the Conservative Party would be allowed to spend only £5 million to save it.
Earlier, I suggested to the noble Lord, Lord Bach, that there might be more than one umbrella organisation. The noble Lord's best argument—perhaps his only argument— against my proposition was that if there were two umbrella organisations on

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one side and only one on the other, the two organisations on the one side might have two freeposts. I wrote his words down,
"it would give one side … an unfair advantage".
That is what he said at 3.23 p.m. today. When he rises to reply at 4.23 p.m., he will no doubt be oblivious to the fact that if one side is allowed to spend at least £9 million, because of the political party line-up, and the other side is allowed to spend only £5 million, that gives an unfair advantage to one side in exactly the same way as allowing two umbrella organisations on one side to put out free leaflets would give that side an unfair advantage.
Amendment No. 238 seeks to impose spending limits on each side of the referendum as a whole. That is the attractive alternative. But the reality is, as my right honourable friend Sir George Young acknowledged in another place on 16th February, while it is an attractive solution, it is highly impracticable, because there will be differing organisations which will want to campaign in a referendum and it will be impossible to bring them all under the same total umbrella.
If that is impractical, it seems to me that the only alternative, in order to allow a fair referendum to take place, is not to have any spending limits at all. No spending limits seem better than rigged spending limits. I do not want to be emotive about this matter, but they are rigged. These spending limits would have been rigged in the Scottish referendum where, even if no side had been able to raise the money, it would have been very limited in the amount that it could have spent in comparison with Labour, the Liberal Democrats and the Scottish Nationalists. So there would have been an imbalance. The noble Lord, Lord Bach, may come to regret his phrase,
"give one side … an unfair advantage",
just as his noble friend Lord Bassam has come to regret his phrase at an earlier stage of the Bill, "unworkable and bureaucratic".
Lord Bassam of Brighton: For the record, I used the phrase "cumbersome and bureaucratic". I might perhaps have added a word, and said "necessarily cumbersome and bureaucratic".
Lord Mackay of Ardbrecknish: There we are. If it is cumbersome and bureaucratic but "necessary", it is fine. I do not think that a great deal of the Bill is necessary. Therefore its cumbersome and bureaucratic nature will make it impossible for the political parties—which, as I have told the Minister time without number, are largely voluntary organisations—to remain within the law, do their work and run elections, which are the very basis of our democratic society.
The Neill committee concluded that there were severe problems in relation to spending limits in referendum campaigns and the committee rejected them. We agree with the Neill committee. The committee's conclusion is not "if", "may be", or "possibly"; it is a very definite rejection. The Government should either make an overwhelming case
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for going against the conclusions of the Neill committee, or they should withdraw those parts of the Bill which place caps on spending and allow referendums to be uncapped. I oppose the Question that the clause shall stand part.
4.15 p.m.
Lord Lamont of Lerwick: I rise to speak to Amendments Nos. 235L and 235M standing in my name. They deal with the same subject of caps on expenditure by reference to political parties during a referendum. I have also given formal notice of my intention to oppose Clauses 112 and 113 and Schedule 13 in order to be able to have a debate on the whole principle of the caps, and to put forward an alternative to the idea of having equal caps on both sides.
The Bill contains a whole series of caps. There is a cap of £5 million on a designated umbrella organisation; there are caps on individual political parties, defined according to their share of the vote at the previous election; there are caps on what are described as "other permitted participants" of £0·5 million—these include individuals, registered companies and unincorporated associations; in addition, there is a limit of £ 10,000 on spending by individuals who are not "permitted participants".
The question raised by my noble friend Lord Mackay is one that I raised at Second Reading and one to which the noble Lord, Lord Goodhart, speaking at that time from the Liberal Front Bench, was quite sympathetic. In addition, the Government said several times in another place that they had an open mind on the matter, they were open to argument and were prepared to consider the position. This is not a party point; it is not merely about the referendum on the euro. It is a fundamental point about equity in framing the rules for a referendum. The Government, in attempting to stop people, as they put it, "buying" the result of a referendum, have created an in-built inequity in what is proposed.
As my noble friend on the Front Bench said, the basic problem is that the Government's attempt to control the expenditure of political parties in a referendum does so based on their share of the vote at the previous election. Two questions arise. First: is it right to concentrate on political parties at all? Secondly, if the concentration is on political parties, is it right to do so by relating the spending limit to their percentage of the vote at the previous election? The Government's proposition is questionable in a number of respects, and in other respects positively wrong. It is certainly against the recommendations of the Neill committee.
It is not necessarily the case that political parties will always be the key players in every referendum. The whole reason that we have referendums is to deal with issues that cut across party lines. As Professor Pulzer said in evidence to the Neill committee,
"the whole point about the referendum is to get opinions from people who are organised not along the lines of the established political parties, and very frequently people do not vote in accordance with the advice that is given to them by the parties that they normally support".

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In many of the issues put forward in referendums, parties are split. So the concentration on parties is arguable. Perhaps there is an argument for saying that political parties should stand back from referendums and leave them to the umbrella organisations. In 1998, the Neill committee touched on this point, and put the matter bluntly (at paragraph 12.30):
"To represent referendum campaigns as merely another manifestation of the usual party political battle seems to us both misconceived in principle and false to the history of referendums since 1975".
In the same paragraph, the committee states:
"We believe that experience shows that referendum campaigns may well feature people from all parties, and also people with no party allegiance at all, on both sides of the argument".
So I question the targeting of political parties in this way.
Even if it is right to apply caps to political parties, it surely cannot be right to do so in relation to their share of the vote at the previous election. That proposition is fatally flawed. The whole point of referendums is to deal with issues that cut across and do not conform with party divisions.
My noble friend referred to proportional representation. There are Conservatives in favour of proportional representational. It has been said that there are very few. There may be rather more among people who vote Conservative but who are not Conservative activists. But if the Conservative Party is opposing PR in a referendum, why should it be permitted to spend money that is based on its share of the vote, including Conservatives who are in favour of proportional representation?
Obviously, the point could be made more dramatically with the case of a referendum on the euro. There are many Labour Party voters, not party members, who are against the euro; indeed, for all I know, perhaps as many as half of Labour voters. If the Labour Party supports the euro in a referendum campaign, why should it be allowed to spend a permitted amount of money that is calculated by a percentage that includes millions of people who do not share its view?
It seems to me that the proposition put forward by the Government ignores the fact that, in a referendum, people are voting on one issue. However, in a general election, people are voting on many issues. People who vote for a party in a general election may have a different view from their party in a referendum. The main point is that the outcome is extremely inequitable. As I believe the noble Lord, Lord Goodhart, acknowledged on Second Reading, this is not a party point. The unfairness would certainly arise in the case of a euro referendum where, if the caps were applied on the basis of votes cast at the last general election—that is to say, in 1997—it would result in caps on funding that were massively in favour of the "yes" side in a euro campaign. My noble friend Lord Mackay illustrated that fact, although he left out of his calculation the £5 million for the umbrella body.
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However, on the "no" side, there would be £5 million for the umbrella body, £5 million for the Conservative Party, being a party that achieved more than 30 per cent of the vote at the previous election, making around £10 million in all. Conversely, on the other side, you would have £5 million for the umbrella organisation, £5 million for the Labour Party, which got over 30 per cent of the vote, and £3 million for the Liberal Democrats, which got between 10 and 20 per cent. I read in the Hansard report of the debate in another place that there were seven other parties, which could attract ceilings of £500,000. If that is correct, that would make a total of £16·5 million, compared with £10 million. However, if that is incorrect—I have not checked the figures myself—one merely adds to the Liberal Democrat and Labour Parties the Scottish and Welsh Nationalists, which would give £14 million against £10 million for the "no" campaign.
What is the argument that is put forward in favour of this rather extraordinary proposition? The Government say that they want,
"to prevent people buying the referendum".
That is why they want the caps. However, they are going a long way towards allowing one side possibly to buy the result. It seems to me that there is no point in having these ceilings on the various participants in a referendum—political parties, individuals, associations, companies and umbrella groups—if there is no overall expenditure limit. What is the point of having sub-limits if there is no overall limit? I should be willing to give way to the Minister if he could answer that question. I do not see the point of having sub-limits in the absence of an overall limit. I do not know whether the Minister can explain that point to me. As I said, I should be most willing to give way to the noble Lord if he wishes to intervene in my speech at this point. I simply do not follow the logic of it. I see that the Minister does not seem to want to intervene.
It seems to me that the Government have thrown equity out of the window in their enthusiasm simply to have caps that have no purpose. The only purpose of having caps on political parties would be where the vote in a referendum corresponded to party lines. That is very unlikely to be the situation in most referendums. Incidentally, as I said earlier, the Government have also rejected the findings of the Neill committee. As my noble friend Lord Mackay said, it was not opposed in principle but in paragraph 12.46, the committee said that,
"it would be futile and possibly also wrong … to impose such limits in connection with referendums".
It seems to me that there are two ways to deal with the problem: either you have a cap for both sides—an umbrella cap—or, as my noble friend from our Front Bench said, you have no caps. The first option of equal spending on both sides for the two umbrella organisations is the subject of both my amendments, Amendments Nos. 235L and 235M. Amendment

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No. 235L would cap the spending on either side in a referendum at £12 million. But I understand that many people may object to that; indeed, that may not be appropriate for referenda on certain subjects. We must not let our thoughts be dominated by one particular subject. Amendment No. 235M states that the spending on both sides should be equal, but that the precise sum should be determined by the electoral commission.
As my noble friend Lord Mackay hinted, I know that there are objections to that suggested course of action. I am sure that it must have been considered by the Neill committee. We look forward to hearing what the noble Lord, Lord Goodhart, has to say on the matter. The objections to my two amendments would be as follows: first, not everyone would necessarily want to be corralled into one umbrella organisation. Indeed, there are often people on one side of an issue in a referendum who are hardly on speaking terms with each other. In the last referendum in Northern Ireland, the parties did not want to campaign together in favour of the Belfast agreement. I understand that objection to what I propose, but the fact that people do not want to campaign together in an umbrella organisation does not mean that it is wholly impossible for them to agree, in discussion with the commission, some way in which the cap could be shared out among them. So that is not entirely impossible.
A second objection to what I propose might be our increasingly familiar friend the Human Rights Act, and Section 10 of the ECHR. In Quebec, provisions similar to those that I propose were struck down in advance of a referendum on the legal grounds that they were a violation of the rights of those who did not want to be ushered in and forced into the umbrella organisation. I realise that there are arguments against caps. However, I put it to anyone who approaches this in an unbiased way that what is proposed by the Government is manifestly unfair and not in accord with the reality of referenda.
It is not just the caps on political parties; it seems to me that it will be very easy to get round all the proposed caps. Indeed, they may be very ineffective. With respect to the Neill report, I know that one witness was quoted as saying, "Show me a cap and I'll show you how to get round it". As regards the amoeba phenomenon—that is, the idea that you can limit an organisation to £500,000—it will be very difficult for an organisation that is not a political party to enforce such a limit. I say that because an organisation can divide itself into two, three or four separate organisations. The impracticality applies also to the £10,000 limit on individuals who are not registered participants. As I see it, there is nothing to stop different people getting together with their individual £10,000 limits and making very large contributions to the campaign.
I entirely understand why the Neill committee came to the conclusion that caps are impractical. There were, of course, no caps in the 1975 European referendum and none in the 1979 Scottish referendum. Faced with this real problem, one might wonder
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whether caps have any purpose. If a rich individual whom one is trying to control can buy a newspaper, he is already well round the caps. Indeed, there will be a great deal of expenditure which is not controlled.
In my amendments and in my remarks about Clauses 112 and 113 and Schedule 13, I have endeavoured to state the problem. I have also tried to state some of the arguments that I believe could be deployed by the Minister against the idea of having caps on the umbrella organisations. It seems to me that we have a choice: either we have a cap on the umbrella organisations, or we have no caps. I believe that what the Government propose is manifestly unfair and has very little merit, as was clearly demonstrated by the Neill report.
4.30 p.m.
Lord Shore of Stepney: We are dealing with basic questions about the referendums and how they should be controlled in future; whether there should be control of who can spend and how much. The problem that the Neill committee faced was quite fairly stated by the noble Lord, Lord Mackay, when he said that that committee liked the idea of controlling expenditure in terms of avoiding an arms race— and achieving a certain fairness—but reluctantly came to the conclusion that it was impractical to do that with a referendum which brings into the arena so many different and disparate interests. Therefore, it recommended that there should be no attempt to cap the expenditure on a referendum.
The Government rejected that particular proposal. I do not believe that I am misrepresenting the views of the Neill committee, of which I am a member, in saying that we were not particularly upset because we hoped and expected that the Government would produce a workable scheme which would in fact limit the amount that was spent and do that fairly and effectively. The Bill and its provisions give us the answer but for a number of reasons, it does not provide adequate regulation of campaign expenditure in relation to referendums.
As regards how much, that is fairly easy for individuals, according to the Bill. One must not spend more than £10,000 advocating "yes" or "no" during a particular referendum campaign. I shrug my shoulders as to how that is to be policed and monitored. I assume that it is just possible.
The big question is in relation to the permitted participants and those who can spend large sums of money. The first in the list are the campaign organisations for the "yes" and the "no" campaigns. Clearly, they must have a substantial sum of money. They are awarded £5 million each in the Bill. Then there are the political parties. I believe the point has been fairly made that the strength of the political parties in the House of Commons has little to do with the strength of their support for a "yes" or "no" vote in a referendum campaign. Nevertheless, some allowance must be made for the political parties. Whether the actual sums of money they are allowed to

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spend and the relationship between them are fair are matters that can be debated and vigorously questioned, as, indeed, they should be.
I am even more concerned about the next category. The third category is neither the political parties nor the "yes" or "no" campaigns, but those referred to in the Bill as individual companies or an unincorporated association. They are permitted participants provided they have registered as such. They can spend £500,000 each. When one considers the vested interests that could be involved in a particular referendum campaign, that again is a coach and horses through the control of the money. I can well imagine a situation in which more than 10 companies take part on one side of a campaign and easily equal the £5 million allotted to a major political party or to the headquarters of the "no" or "yes" campaign.
Then we reach the point very properly made and brought out very clearly by the noble Lord, Lord Lamont, in his amendment: is there an overall cap? We have individuals caps and I have just been through them. Is there no limit on what can be spent? As regards the euro, let us imagine the vested interests on one side or the other: is there to be no cap? Are we really saying that money can be poured out without any constraint? The Minister must answer that. Is there to be a cap? We can argue about whether the cap proposed by the noble Lord, Lord Lamont, is the right one can but in principle, is there to be a cap on the aggregate total expenditure in a referendum campaign?
That brings me back to the other fundamental question of who may take part. Clearly, companies can spend a great deal of money. The Minister and his friends have driven an even bigger coach and horses through the control mechanism because they have allowed, as permitted participants, not only British companies, but any company registered in the European Union. Can one imagine a referendum on the euro in which companies in the European Union are allowed to spend up to £500,000 each in the British campaign? Even the thought of that is outrageous. Yet the Government have feebly accepted that, because of some arcane ruling by the European Court of Justice, it would somehow be discriminatory for us to regulate the practice of our own democracy. That is ruled out by a single judgment of the European Court of Justice in a case which has nothing to do with the issues before us.
I say to this House—and I hope that others are listening outside—that that this is one of the greatest outrages and the abnegation of sovereignty and self-respect in the history of our nation. We are allowing a foreign body to decide how we should practise democracy and the control and management of democratic procedures in our own country. This wicked provision must be ruled out.
Lord Blackwell: I am taken by the point made by my noble friend Lord Mackay that it is likely to be difficult to find caps which are both practical and equitable and that it may make more sense to remove caps altogether.
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I particularly want to take up a point raised by the noble Lord, Lord Lamont, and his amendments. If there are to be caps, I question the relevance of expenditure as regards political parties and referendum campaigns. It seems to me that by definition referendums concern single issues which cut across party political lines. It is difficult, but not inconceivable, to imagine a situation where one could have the leadership of all the main political parties aligned on one side of a referendum and the opposition to that point of view drawn from members of all political parties. In that situation, if one were to allocate expenditure based on political parties concerning an issue that cuts across them, it may arise that expenditure would be heavily weighted on one side of the issue simply because of the arithmetic concerning the political parties supporting an election campaign. If we are to have referendums about issues as opposed to those concerning support for parties at a general election, then expenditure based around political parties is both irrelevant and potentially damaging.
Lord Goodhart: This is a very complex issue. I am not sure that I agree either with the Government or with the noble Lord, Lord Mackay of Ardbrecknish, on it. This group of amendments raises three different questions. The first is whether there should be a total limit on the spending of either side in a referendum campaign. The second is, if there should be no total limit, should there nevertheless be a limit on the spending by any particular player in that campaign? Finally, if there should be a limit of that kind, what should it be?
I believe that the noble Lord, Lord Mackay of Ardbrecknish, slightly misrepresented the position of the Neill committee. We said that there should not be an overall total limit on expenditure. We did not consider whether there should be a limit on individual players. I think that the noble Lord, Lord Mackay, rather implied that we had said no to both questions whereas we said no to the first question and did not answer the second question.
On the question of whether there should be a limit on total spending, it seems to me pretty clear that we were right in coming to the conclusion that there should not be. It is fair to say that the Government have not attempted to impose a total limit on the spending of either side. There are certainly a number of objections to imposing a total limit. One is the great difficulty of enforcing and controlling that limit. It can possibly be done with an umbrella organisation if all the players on one side are willing to belong to that organisation. However, there are many referendums in which no umbrella organisation can be formed. The most obvious example—one which was mentioned in the Neill committee report—was the Good Friday referendum in Northern Ireland with on one side the Ulster Unionist Party, the SDLP and Sinn Fein, and, on the other side, the DUP and some republican splinter groups. It is perfectly obvious that neither side would have been willing to come together for the purpose of fighting a joint campaign. It would have

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been out of the question, for example, to have told the Ulster Unionists, "Sorry, you cannot spend any more money on this campaign because your allowance has all been spent by Sinn Fein".
Therefore we felt that it was plainly impracticable to impose an overall limit and, indeed, possibly wrong on grounds of freedom of speech in view of the Bowman decision in the European Court of Human Rights which concerned money spent in a particular constituency election campaign. By analogy that would also apply to a referendum and to the Canadian case which the noble Lord, Lord Lamont, mentioned in which it was held to be a breach of the right of freedom of speech under the Canadian charter of rights to require someone to join an umbrella group if they wished to participate in a campaign. In that case an umbrella group existed but someone said, "I do not want to join that umbrella group because I support the same argument as them but for different reasons and I wish to have my own say on the matter". It was held that that applicant was entitled to do that.
The question of whether there should be a limit on the spending of particular players in a campaign is, I think, much more arguable. The Neill committee did not consider that matter. In retrospect I think that we should have but I am not clear what conclusion we would have reached had we done so. The noble Lord, Lord Shore of Stepney, takes a strong view on that matter. I take a somewhat different view, although it is not so strongly held as that of the noble Lord. I believe that there are arguments for saying that one ought not to allow a particular political party, or rather a particular individual with extremely strong views on a subject, for example, Mr Brian Souter or Mr Paul Sykes, to fund an expensive campaign. I accept that there are difficulties. A number of those difficulties were justifiably pointed out by the noble Lord, Lord Lamont. However, I believe that there is an arguable case for saying that you can do that. If it is to be done, I am not happy with the way the Government propose to do it. Certainly the view of the Neill committee was that the emphasis on political parties in referendums was too great. We felt that in the case of referendum campaigns there were strong advantages in giving incentives to like-minded people to join in a single umbrella campaign. That would simplify the procedure in many ways. For example, it makes the question of broadcasting much easier.
If a political party on its own is entitled to spend as much as a whole umbrella group would be entitled to spend, I certainly feel that that places far too much emphasis on the role of the party. If more than one party is involved, together they may well be in a position to spend far more than the umbrella campaign. I regard the figures for party spending as far too high. I also take the view—I believe that both the noble Lords, Lord Mackay and Lord Lamont, mentioned this—that it is wholly wrong in principle in these cases to determine the amount of money that any political party is entitled to spend on the basis of its share of the vote. That seems to me to be wholly wrong. It is inconsistent with the rule in the case of
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general elections where although parties such as mine are likely to be unable to get close to the limit, nevertheless if we could do that we would be entitled to do it. I believe that the same principle should apply to party spending on referendums.
I am also somewhat concerned at the level of spending by permitted participants. I believe that the noble Lord, Lord Shore, got it somewhat wrong when he said that no individual could spend more than £10,000. If an individual becomes a permitted participant, the limit is not £10,000 but £500,000.
4.45 p.m.
Lord Shore of Stepney: I should make it quite clear that I was referring not to individual but to companies' expenditure which is specifically under the limit of £500,000.
Lord Goodhart: In a sense the division between individual and company spending is somewhat irrelevant because I think that the very large sums of money are not, frankly, likely to come from big commercial companies with large shareholdings but are much more likely to come from the private companies of wealthy individuals who might decide to put their companies' money into a campaign rather than their own. But be that as it may, it is certainly my view that a spending limit of £500,000 is too high. Even if one applies the 5 per cent test which was applied to third party spending for constituency and national campaigns in general elections, the figure would be reduced to £250,000. I believe that £250,000 is a more realistic figure than £500,000.
In principle I am quite happy with the idea of some control on spending by particular players. However, I am not happy with the way in which the Government have set about that. It is a matter which the Government should reconsider.
Lord Stoddart of Swindon: This subject is clearly fraught with enormous difficulties. The more I have listened to the argument, the more problems seem to arise, in particular with the route that the Government have chosen.
I agree very much with my noble friend Lord Shore of Stepney when he says that it is completely intolerable that the European Court of Justice should be able to decide to what extent our political parties might be financed; and that the electoral law that we all want—and the Government want—restricting the amount that companies can provide for political parties is to be decided by the European Court of Justice and not our own Parliament. I should have thought that every parliamentarian would want to agree with my noble friend. I am sorry that my noble friend on the Front Bench, and the Government, did not say to the European Court of Justice and the Commission, "This goes too far and we shall not go along with it, whether or not it is against supposed European law".
The question of expenditure in a referendum is fraught with difficulties. In this country, we do not have long-term experience of running referendums.

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Therefore we do not have too much experience to call upon. But it is absolutely certain that to base the amount which can be spent on the basis of political parties cannot be right; nor can the number of votes cast at the last election be the right basis because trends in opinions change within a period of six months, 12 months, three years or five years. So that is not a good basis on which to decide what each political party should spend.
An alternative basis might be to use current opinion polls. Let us consider the current opinion poll on the euro. The last one was taken on 2nd October by MORI. That indicated that 72 per cent of the electorate were against ditching the pound and going into the euro. It would be as fair a system as any for allocating funds to say that the campaign in favour of retaining the pound should have 72 per cent and the other side only 38 per cent of the expenditure. That is clearly nonsensical but no more so than the proposition put forward by the Government in the Bill.
The Government have to consider the issue again. If they do not, I shall vote for the amendment in the name of the noble Lord, Lord Lamont, because we must have an alternative. However, I hope that the Government will reconsider the matter. How they can do so has already been suggested. One can have a limit on the total expenditure. But I do not know how one could impose that limit. I am the chairman of the anti-Maastricht alliance. We have 21 organisations in the alliance and many more outside it. How one will be able to control the expenditure of all those individual organisations plus the contributions of individuals themselves I do not know. We face a very difficult situation.
Let us think back to 1975. I remember 1975 because I represented Swindon in the House of Commons. I took an active part on the "no" side throughout Wiltshire and the South West in that referendum. The Labour Party was in a difficult position. The Labour Party was in favour of withdrawal from what was then the common market. On the other hand, the Labour government took the view that we should remain in. So there was a difference of opinion between the Labour Party on the one hand and the Labour government on the other. How would we sort out that situation?
The position then was even more difficult. To resolve its internal difficulties—those who were in the Labour Party at that time know this perfectly well—the Labour Party said that all party members could opt for whichever side they liked. How does one distribute the amounts of money available to the party under those circumstances? The whole subject is fraught with enormous difficulties. Those of us who fought in the 1975 referendum believe that one of the reasons that we lost the vote was because of the enormous amount of money that was on one side of the argument. That is why we believe that some control is necessary.
I have also to take into account the referendum which took place in Denmark on 28th September 2000. Despite the assistance that some of us sought to give it, I understand that the "no" campaign on the euro was
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outgunned by about 20 kroner to one. Virtually all the press were in favour of the "yes" campaign as were all the political parties. Big business and the trade unions were in favour of the "yes" campaign. And the Danish people voted 53 to 47 per cent against getting rid of the kroner. What do we do under those circumstances? It seems that money does not always count. Nevertheless it counts in people's minds. People must see fairness in a referendum campaign. This Bill does not give us fairness. It does not make clear to ordinary people that the referendum will be fought fairly. That is why I believe that the Government need to have further consultations, perhaps with the Neill committee and all-party consultation, to try to reach a situation where all people can have confidence—in particular, the voters.
5 p.m.
Lord Pearson of Rannoch: I wonder if I could support the remarks of my noble friend Lord Lamont and those of the noble Lords, Lord Shore of Stepney and Lord Stoddart of Swindon, by bringing to your Lordships' attention the position of the United Kingdom Independence Party, which I do not think is represented in your Lordships' House and therefore has no one to speak about its situation.
I am myself a loyal Conservative Back-Bencher, perhaps on the Euro-realist wing of the party. My lack of knowledge of the UK Independence Party is no doubt confirmed by the fact that I cannot remember whether or not it existed at the last general election—I am told that it did, just, but did not win many votes. We did have Sir James Goldsmith's Referendum Party, which has now metamorphosed into the all-party Democracy Movement, and at the time that party won quite a few votes.
The point I wish to put to the Government is that if there were to be a referendum on the euro before the next general election, under the provisions of this Bill the UK Independence Party would get no money a t all. It is a political party and would not qualify for funding under Schedule 13, as I read it, and therefore would get absolutely nothing. That surely cannot make sense when we consider that the last test of public opinion on matters European was last year's elections for the European Parliament. The party then actually won 7 per cent of the vote and three seats in the European Parliament; yet the Bill as drafted would give it only up to half a million pounds. That amount would not be in line with what it achieved at that election, the last test of public opinion.
Also, it would not be in line with the latest test of public opinion so far as UKIP is concerned. That occurred on 2nd October, when 46 per cent of those consulted in a MORI poll on whether, if there were to be a referendum tomorrow, they would wish to stay in the European Union or get out of it, said they would want to get out. As there is no one else here to speak on behalf of UKIP, I feel that I might as well do it,

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from the point of view of showing the Government that the Bill as drafted is completely inequitable, at least to that party.
Lord Bassam of Brighton: This has been a long and very thoughtful debate; it has been a curate's egg of a debate, and I have enjoyed it greatly. My job as a Government Minister is to look at all the points that have been made and see whether we can find some light at the end of this inverted telescope—because that seems to be how the debate has gone. It seems to have been largely overshadowed by one issue: that of a possible referendum over the future participation of this country in the euro.
I welcome the fact that we have had the debate, even though it has been contentious and perhaps even a touch controversial. At one point when the noble Lord, Lord Shore of Stepney, referred to "foreign bodies", I began to feel a little queasy; on the other hand, the passion with which the argument was put was quite right.
The Opposition have argued that the arrangements set out in the Bill are unfair because they do not guarantee a level playing field. The charge is that it would be possible for one side in a referendum campaign grossly to outspend the other side, and Amendments Nos. 238, 235L and 235M seek to rectify this perceived unfairness by providing for the commission to specify an overall limit on the aggregate expenditure that may be incurred by all of those campaigning for a particular outcome. The Government freely concede that their proposals would not ensure that each side in a referendum was subject to the same overall limit on expenditure, and there is no pretence that our proposals are intended to create a level playing field in that sense.
The Neill committee concluded, rightly, that any attempt to do so would be, as has already been said, futile and quite possibly wrong. That was stated in paragraph 12.46. To operate such overall expenditure limits would require that all those campaigning for a particular outcome co-ordinate their expenditure and collectively account for that expenditure. Of course, as the noble Lord, Lord Mackay, and others have said, they may not wish to work together and would have to be compelled to do so. The committee concluded that such arrangements, again to quote an expression which the noble Lord, Lord Mackay, borrowed from the report,
"would resemble one of Heath Robinson's most outlandish contraptions".
I have to report here that the noble Lords, Lord Lamont and Lord Mackay, have not attempted to draw up the sort of amendments that would be inevitably consequential on their Amendments Nos. 238, 235L and 235M.
It is worth exploring just a little further what would be needed to make those amendments effective. The first requirement would be to prohibit anyone from spending money in a campaign, except as part of an umbrella group or other such combination. You
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would have to have an absolute bar on anyone else spending any money. Having prevented anyone campaigning outside an umbrella group, the next step would be to regulate the affairs of that group, perhaps in the form that we have regulations in the Bill for political parties. Some form of constitution would be needed for deciding, among other things, which organisations to admit to membership; how the views of the group were to be presented; how the overall spending limit was to be apportioned to the various constituent organisations and, finally—this is the important part—how to enforce expenditure limits.
In addressing these points the Bill would need to determine whether all the constituent organisations were to be jointly and severally liable for any overspend or whether the treasurer should be answerable for matters over which he or she may have no practical control. To resolve such issues would be difficult in the extreme, if not impossible. As the Neill committee pointed out, we would not be dealing with an established organisation with its own internal rules on which statutory provisions could be grafted. Referendum campaign groups will be formed on an ad hoc basis, sometimes at short notice, for each referendum. Sometimes the composition will vary from case to case, but we would need a set of statutory rules to cover all eventualities. In some cases, this simply would not work. Clearly, there are cases when two organisations will never join the same group or share a platform with each other, even if they hold the same view on a referendum question. I can well remember that from the 1975 referendum campaign on our continued membership of the Common Market. There were members of the Labour Party who would not share a platform with Enoch Powell under any circumstances, even though he was a member of the same "No" campaign and deployed almost identical arguments. During the 1998 referendum in Northern Ireland, the Ulster Unionists and Sinn Fein were not prepared to campaign together.
In the event of a referendum on Britain's membership of the euro, the amendments would require the Conservative Party to form an umbrella group that included not only the Ulster Unionists, but Business for Sterling, the "No" campaign of the noble Lord, Lord Owen, Paul Sykes' Democracy Movement, the UK Independence Party, whatever the Referendum Party is now called, the Communist Party and perhaps even the National Front. I am sure that there are one or two organisations in that list with which the Conservative Party would not want to be associated, but if they were left out of the umbrella group, they would be denied the ability to campaign in a referendum. The question of who is in and who is out cannot easily be answered by the law.
The Bill recognises and encourages the formation of umbrella groups and sets separate expenditure limits for them. The key difference is that there is no obligation on a party or other organisation to join an umbrella group or to campaign as part of it. That would be overly prescriptive. A party or other organisation can stay away from the group and do its own thing.

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The case against an overall expenditure limit for each side in a referendum is overwhelming. However, the Government have not drawn the conclusion that it would be both impossible and wrong in principle to operate any expenditure limits whatsoever. Placing a limit on what any particular individual or organisation may spend will at least make it possible to prevent a wealthy individual or organisation exercising a disproportionate influence over the outcome of a referendum. Several of those arguing against the Government's position have claimed that that is their perspective. Furthermore, the Neill committee had already recommended that referendum campaign organisations should register with the electoral commission.
Lord Mackay of Ardbrecknish: The Minister is now arguing that it would be unfair if a particular organisation or a rich individual could unbalance the playing field by pouring money into one side. Surely that is an argument against the playing field starting off unbalanced, which will be the result of the Bill. If the political parties are lined up, one group will have £9 million and the other group will have £5 million. What is the difference between that imbalance and the imbalance created in what might be described as a free-for-all, when one wealthy individual might fund one side heavily? Such a wealthy individual might spend his money in favour of the euro.
Lord Bassam of Brighton: We are trying to prevent an outrageous arms race. This is the one mechanism that we can design with some certainty behind it that will begin to achieve that. The requirement to register with I he electoral commission provides a large part of the control machinery needed for the imposition of expenditure limits.
The Opposition's position is not persuasive. They object to the Government's proposals on the grounds that one side may spend more than another. However, when challenged to put forward an alternative, they are not able to come up with workable proposals.
Lord Mackay of Ardbrecknish: The Minister cannot get away with that. Removing the clauses from the Bill is an alternative. That would remove any attempt to impose spending limits, because they are impossible whatever way we look at the issue. The Minister must address that argument as well.
5.15 p.m.
Lord Bassam of Brighton: That is interesting, because some of the noble Lord's amendments propose spending limits in some form. He cannot have it both ways either. That is the problem in the arguments that we have heard from the Opposition and from others. When challenged to put forward an alternative, they are not able to come up with workable proposals. The noble Lord has challenged me, but he has not addressed the bureaucratic construction that might be necessary to give effect to another part of his solution—whichever solution it happens to be. The Opposition fall back on the argument that if there can
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be no overall expenditure limits, there should be none at all. That would guarantee the unfairness that they see as inherent in the Government's proposals.
Amendments Nos. 236 and 237 would reduce the expenditure limit for a designated campaign organisation from £5 million to £3 million and would subject all political parties with the support of more than 5 per cent of the electorate to the same expenditure limit of £3 million. In the original draft Bill, we proposed a £5 million expenditure limit for any registered political party, irrespective of its electoral support. However, in its comments on the draft Bill, the Neill committee questioned whether it was right that all political parties, irrespective of the number of their Members in the House of Commons, should be subject to the same £5 million limit. In response, the Government revised their proposals and introduced a sliding scale whereby the level of the expenditure cap was related to the level of electoral support enjoyed by that party. Amendment No. 237 would return us to an arrangement closer to that which the Neill committee found unsatisfactory.
I am not sure whether the proposal for a £3 million upper limit on spending by a designated campaign or by a political party is consequential on Amendment No. 238 or whether it reflects a conversion to the view that the proposed limits on referendum expenditure are generally too high. Conservative Central Office originally observed that the £5 million limits for umbrella organisations and political parties set out in the draft Bill seemed "on the low side".
In the absence of any recommendation on that point, it is simply a matter of judgment as to whether £5 million is preferable to £3 million. On balance, perhaps £5 million is a more realistic figure in the context of a nationwide referendum. In the 1975 referendum, Britain in Europe spent around £1.5 million, which equates to around £7.5 million in today's money. Against that background, a £3 million limit seems unnecessarily low.
The four government amendments address minor drafting points. The first two ensure consistency between the offences in Clause 113 and those in Clause 89. The third removes paragraph (1) from Schedule 13 on the ground that the definition contained there is already supplied by Clause 100(1). The fourth amendment provides that that clause applies to a minor party.
The Opposition should make up their mind on the merits of referendum limits. They have made the case for limiting what each side in a referendum may spend. On the face of it, the case has some merits, but it falls down on the practicalities. If we have to reject that option, as I believe that we do, the controls on expenditure set out in the Bill are the next best thing. I urge your Lordships to support them.
The worst possible course would be to do without limits, which would guarantee gross inequality between the two sides. That being the case, I am afraid

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that I must invite your Lordships to oppose the amendments in the names of the noble Lords, Lord Mackay and Lord Lamont, and to support the clauses.
Lord Norton of Louth: A central part of the Minister's argument seems to be that at least there will be a limit on spending by individuals under Schedule 13. What is to stop a very wealthy individual giving several colleagues £500,000 each and encouraging them to register under Clause 100(1)(b)? That would disperse all that money on one side in a referendum campaign.
Lord Mackay of Ardbrecknish: Would it be possible for a citizen of the European Union to spend £10 million on UK adverts to favour one outcome? They would clearly be breaching the £500,000 limit, but how could they be prosecuted if they lived in another member state?
Lord Bassam of Brighton: The issue goes back to some of the arguments made by the noble Lord, Lord Goodhart. In an interesting contribution, he wrestled with all the vexed questions that we had gone through. He wrestled with total limits, limits on a particular party and what those limits should be. He dealt with the impracticality of the umbrella controls, and he said that limits on the parties were arguable. He said that in the end he was not happy with the Government's position. However, he did not offer a practical alternative, just as Members of the party opposite have not offered practical alternatives. I do not believe that a construct which does exactly that has been offered in the debate today. Finally, we need to accept that there must be a degree of good will in any referendum campaign. We have tried to provide a workable limit to, so to speak, the arms race of expenditure in a referendum campaign where there are clearly strong and entrenched views.
Baroness Park of Monmouth: Will the noble Lord give way? Does he agree that somehow either the solution preferred by my noble friend Lord Lamont or that of my noble friend Lord Mackay of Ardbrecknish must be considered, and, more so, that suggested by the noble Lord, Lord Shore? I do not believe that referendums are any good if people do not trust the result. There is a serious danger that if people who compete in a referendum are able to say, "Ah, well, he has £10 million under the counter from such and such a firm; he has this, and he has that", we are making it possible for the whole process to be discredited. We rarely have referendums, and they are usually held on rather important subjects. Therefore, I believe that it is quite essential that that problem should be solved.
Lord Goodhart: Perhaps I may assist the Minister in response to the question raised by the noble Lord, Lord Norton of Louth. I believe that it is fairly obvious that rich men do not give away £500,000 to a dozen different friends who, all by coincidence, choose to spend that money on a particular referendum
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campaign. I do not believe that the courts would have much difficulty in coming to the conclusion that the various so-called beneficiaries of the gifts were in fact acting merely as agents for the original donor in the spending of the money and that therefore the donor was in breach of the rules.
Lord Lamont of Lerwick: I am very disappointed in the Minister's reply. I also believe that he is dealing with this matter in a rather puzzling way. He said that we have given him two options—either this or that—but that we have not put forward a proposition. However, we gave him a choice—
Lord Bassam of Brighton: Does the noble Lord accept that his two propositions act in contradistinction to each other?
Lord Lamont of Lerwick: Completely. I put them forward in that very spirit.
Lord Bassam of Brighton: In that case, which proposition does the noble Lord support?
Lord Lamont of Lerwick: My first choice would be no limit. However, if the noble Lord is not prepared to accept that, I would go for a cap on both sides. I am prepared to go either way. There are three propositions: the Government's approach, no caps, or a cap or umbrella. I believe that it is unfair and unacceptable to have an approach that guarantees, to use his words, inequality between the two sides. He said that, if there were no caps, that guaranteed that there would be inequality. I suppose that that is the case in the sense that one side would spend more than the other, but I do not believe that one can be certain which side that would be. However, under the noble Lord's proposition the political party that will spend more is guaranteed because it is enshrined in the legislation.
I am extremely disappointed in the Minister's reply because it completely flies against what the Home Secretary said at Second Reading:
"We remain open to argument … I have asked the Opposition to come forward with [proposals]".—[Official Report, Commons, 10/1/99; col. 39.]
He said that he was open to argument, and that is why I put forward two absolutely separate and completely contrasting propositions. However, the Minister simply makes a cheap point about how they conflict with each other. The propositions were designed to provide alternatives. As is so often the case in politics, we are choosing the least unsatisfactory solution. However, I suggest that what the Minister has put forward is completely indefensible. He says that it is designed to stop an arms race, but one does not normally stop an arms race by saying that one side can have two-thirds more armaments than the other. That is a very odd way to tackle an armaments race.
I am disappointed in what the Minister said. I do not believe that it made sense. He did not explain why it makes sense to have sub-limits if there are no overall limits. The purpose of that was not at all clear. At this

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stage I do not intend to press my amendments to a Division. However, I certainly hope to return to the issue on Report because I believe that the Minister's reply was most unsatisfactory.
Lord Mackay of Ardbrecknish: This has been an interesting debate. It has certainly been interesting to discover from the Minister that he does not understand that choice can sometimes involve two quite opposing matters. He does not understand that. However, we have given him a choice and—
Lord Bassam of Brighton: Perhaps the noble Lord will give way. Simply, the point that I made was that achieving one of those options would create a bureaucratic nightmare of the kind that the noble Lord, Lord Mackay, would probably not envisage in his most wild and outrageous dreams. He and I agree that it is bureaucratic and of course it is cumbersome, hut, I argue, necessarily so. As I explained, it is politically impractical to create a construct to control umbrella expenditure and it is impractical to orchestrate. I believe that the alternative of the more severe cap is overly restrictive. In this exercise we have tried to plough a sensible middle course and I believe that that exactly describes our position.
Lord Mackay of Ardbrecknish: The only wild and outrageous dream that I have is when occasionally I believe that I am asleep on the Front Bench listening to the Minister. However, we shall leave that aside.
The real point is that this is a difficult issue, but I believe that the noble Lord, Lord Goodhart, gave a very fair appreciation of it. He reinforced the point made by the Neill committee in relation to umbrella organisations. I believe that probably the argument in that regard is correct: the difficulty of deciding how the organisations would work inside one umbrella and how the money would be divided is probably impossible to resolve.
I was interested to hear the noble Lord, Lord Goodhart, say that it was not clear what answer the Neill committee would have given if it had considered the alternative now put forward by the Government. I find it odd that the Government, or the Labour Party, did not consider putting forward that proposition to the Neill committee for consideration. Perhaps that is a pity. I have no evidence of that other than reading the Neill report and trying to discover how the committee reached that conclusion. However, I suspect that it may have concluded that the Government's alternative was equally as fraught with difficulty. After all, I notice that the Minister did not answer his noble friend Lord Stoddart of Swindon when he referred to the 1975 referendum about which the Labour Party was severely divided.
Let us assume that we hold a referendum on a subject that divides one of our great parties (let us forget the euro for a moment). In the past, one reason for having a referendum was that it provided the easiest way out when a party was divided. Let us assume that we hold a referendum and one of our great parties is severely divided. Who receives the £5 million
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to spend? It is a very good question but the Minister simply did not answer it. He did not answer my question about the rich individual in Paris or London spending £10 million, way in excess of the £0.5 million which would be allowed if he lived in the UK. Who would prosecute him? How would he be prosecuted? Is there any answer to that question?
However, perhaps above all, the Minister said simply that the Bill is not fair; it introduces an inequality, but it is an inequality from the word go. The Minister said that we should guard against the possibility that fund-raising might end up as an inequality. Two wrongs do not make a right and two inequalities do not make an equality. I believe that my proposal would be better. The noble Lord has not really addressed that.
However, to return to the suggestion of the Neill committee, we cannot cap referendum expenditures because they are so different from general election expenditures. The Government's Bill deals with that on the basis of the results of the last general election. However, since then we have had a European election. One could say that that election was more relevant to the question of Europe than was the general election. Therefore, why not fund on the basis of the last available election? Why return to the general election? So many questions arise here, but I believe—
5.30 p.m.
Lord Bassam of Brighton: I thank the noble Lord for giving way. I am beginning to become confused by his argument. The noble Lord raised the example of a rich individual. He probably knows more about rich individuals than I do. However, in raising this argument about inequality, it seems to me that he is losing sight of the fact that if we move back to a position where there are no limits at all, the rich individuals genuinely can come in and attempt to buy a referendum. The noble Lord has not answered that point.
Lord Mackay of Ardbrecknish: This is a slightly wider argument. I think that it would be hard to prove that all the money on one side necessarily buys the result of a referendum. The noble Lord, Lord Stoddart of Swindon, referred to the Danish referendum where all the cash was on one side, all the powerful players were on one side—and they lost. I know what the Minister will say, that one could say the same about my opposition to his Bill.
Lord Bassam of Brighton: The noble Lord is right. That is the point. Through the Bill, we seek to establish a position of transparency. I thought that the argument put forward by the noble Lord, Lord Stoddart of Swindon, was helpful to us. It made the point that the people will not be defeated when they clearly see things in a certain way, regardless of the amount of money stacked up on one side of the argument by one group of supporters.
Lord Mackay of Ardbrecknish: I do not want to go on too long on this point. However, there is a

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difference between one individual stacking the odds and the political parties being allowed legitimately to stack the odds. I believe that the public would make a judgment about whether they thought that that individual should or should not stack the odds on one side. However, when it comes to political parties, which are legitimate organisations, the imbalance laid out in the Bill is much more difficult for the public to see through. They may well accept that imbalance. Clearly, the noble Lord will not be persuaded. He wants inequality. It is a new concept of a level playing field: we must start off with the playing field being uneven in case, during the match, it turns out to be uneven. That is a ludicrous argument. We would be far better standing where we are. The Minister does not seem to like the choices. The choice I would come down on is not to have any limits. However, that is probably for another day.
Lord Pearson of Rannoch: Before my noble friend sits down, I wonder whether the Minister could answer a point which my noble friend put to him and which I also attempted to put to him on behalf of the United Kingdom Independence Party. Does he agree that at the last general election no fewer than 177 commitments were given by the Labour Party? Therefore, people who voted for the Labour Party at the last election were voting en masse for 177 commitments. At the European elections, there was only one issue; that is, sending people to the European Parliament.
Does the Minister not agree that the test of opinion which should apply is the vote at the European elections, far more than the vote at the last general election. He has not addressed that point. It will need to be addressed before we finally decide this matter.
Clause 106, as amended, agreed to.
Schedule 12 [Referendum expenses: qualifying expenses]:
Lord Bach Lord Bach moved Amendments Nos. 234P to 234YC:
Page 149, line 16, leave out ("120(1)") and insert ("120").
Page 149, line 24, leave out sub-paragraphs (7) to (10).
Page 149, line 35, leave out sub-paragraph (11) and insert—
("(11) Transport (by any means) of persons to any place or places with a view to obtaining publicity in connection with a referendum campaign.
Expenses in respect of the transport of such persons include the costs of hiring a particular means of transport for the whole or part of the period during which the campaign is being conducted.").
Page 149, line 42, leave out ("attract national publicity") and insert ("obtain publicity in connection with a referendum campaign").
Page 149, line 45, leave out ("prominent").
Page 149, line 45, after ("events") insert (", the hire of premises for the purposes of such events").
Page 149, line 47, leave out sub-paragraphs (13) and (14).
Page 150, line 8, leave out ("permanent staff") and insert ("staff (whether permanent or otherwise)").
Page 150, line 9, leave out ("reasonable").
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Page 150, line 11, at end insert ("to the extent that the expenses are paid by the individual from his own resources and are not reimbursed to him").
Page 150, line 12, leave out from beginning to end of line 12 on page 151.
Page 151, leave out lines 18 to 23 and insert ("as to the kinds of expenses which do, or do not, fall within Part I of this Schedule").
Page 152, line 11, leave out ("or II").
The noble Lord said: These amendments were all previously spoken to with Amendment No. 191. I beg to move.
Schedule 12, as amended, agreed to.
Clause 107 [Notional referendum expenses]:
Lord Bach Lord Bach moved Amendments Nos. 234YD to 234YG:
Page 67, line 41, leave out subsections (1) and (2) and insert—

("(1) This section applies where, in the case of any individual or body—

(a) either—

(i) property is transferred to the individual or body free of charge or at a discount of more than 10 per cent. of its market value, or

(ii) property, services or facilities is or are provided for the use or benefit of the individual or body free of charge or at a discount of more than 10 per cent. of the commercial rate for the use of the property or for the provision of the services or facilities, and

(b) the property, services or facilities is or are made use of by or on behalf of the individual or body in circumstances such that, if any expenses were to be (or are) actually incurred by or on behalf of the individual or body in respect of that use, they would be (or are) referendum expenses incurred by or on behalf of the individual or body.

(1A) Where this section applies, an amount of referendum expenses determined in accordance with this section ("the appropriate amount") shall be treated, for the purposes of this Part, as incurred by the individual or body during the period for which the property, services or facilities is or are made use of as mentioned in subsection (1)(b).

This subsection has effect subject to subsection (6).

(1B) Where subsection (1)(a)(i) applies, the appropriate amount is such proportion of either—

(a) the market value of the property (where the property is transferred free of charge), or

(b) the difference between the market value of the property and the amount of expenses actually incurred by or on behalf of the individual or body in respect of the property (where the property is transferred at a discount),

as is reasonably attributable to the use made of the property as mentioned in subsection (1)(b).

(1C) Where subsection (l)(a)(ii) applies, the appropriate amount is such proportion of either—

(a) the commercial rate for the use of the property or the provision of the services or facilities (where the property, services or facilities is or are provided free of charge), or

(b) the difference between that commercial rate and the amount of expenses actually incurred by or on behalf of the individual or body in respect of the use of the property or the provision of the services or facilities (where the property, services or facilities is or are provided at a discount),

as is reasonably attributable to the use made of the property, services or facilities as mentioned in subsection (1)(b).").

Page 68, line 26, leave out ("and") and insert ("or").

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Page 68, line 33, leave out subsection (4) and insert—

("(4) Where an amount of referendum expenses is treated, by virtue of subsection (1A), as incurred by or on behalf of an individual or body during any period the whole or part of which falls within the period which is, in relation to the referendum to which the expenses relate, the referendum period then—

(a) the amount mentioned in subsection (4A) shall be treated as incurred by or on behalf of the individual or body during the referendum period, and

(b) if a return falls to be prepared under section 115 in respect of referendum expenses incurred by or on behalf of the individual or body during that period, the responsible person shall make a declaration of that amount,

unless that amount is less than £200.

(4A) The amount mentioned in subsection (4) is such proportion of the appropriate amount (determined in accordance with subsection (1B) or (1C) as reasonably represents the use made of the property, services or facilities as mentioned in subsection (1)(b) during the referendum period.").

Page 69. line 2, at end insert—
("() Paragraph 2(3) and (4)(a) of Schedule 14 shall apply with any necessary modifications for the purpose of determining, for the purposes of subsection (1), whether property is transferred to an individual or body.").

The noble Lord said: Amendments Nos. 234YD to 234YG have all previously been spoken to with Amendment No. 195. I beg to move.
Clause 107, as amended, agreed to.
Clause 108 [Restriction on incurring referendum expenses]:
Lord Bach Lord Bach moved Amendment No. 234YH:
Page 69, line 10, at end insert—
("() Where, in the case of a permitted participant that is a registered party, any expenses are incurred in contravention of subsection (1), the expenses shall not count for the purposes of sections 112 to 118 or Schedule 13 as referendum expenses incurred by or on behalf of the permitted participant.").

The noble Lord said: Amendment No. 234YH was spoken to on 8th October. I beg to move.
Clause 108, as amended, agreed to.
Clause 109 [Restriction on payments in respect of referendum expenses]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 234YHA:
Page 69, line 15, at end insert—
("() No donation received by a registered party which is a permitted participant from a permissible donor of the type specified in section 49(2)(c) shall be used to make any payment in respect of referendum expenses.").

The noble Lord said: I rise to move Amendment No. 234YHA. This is beginning to sound more like a game of Scrabble than a Committee stage!
The amendment addresses the question of what the registered parties can spend. I shall not go over the previous argument. This relates to the main parties: the Conservative Party, the Labour Party and the Liberal Democrat Party, and the Nationalist parties in Scotland and Wales.
One of the arguments used by the Home Secretary in the other place in defending the imbalance between the three parties that would be on one side of the euro
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referendum and the Conservative Party on the other was that the Liberal Democrats would never be able to spend up to their limits. The Home Secretary stated:
"the Liberal Democrats are offered generous spending limits in the Bill, but it is a racing certainty that the party will not be able to raise money to the level of the spending limit".
Perhaps I may say to the Liberal Democrats that that shows the contempt in which they are held by the Home Secretary. He does not think that they are up to raising the money. He continued,
"So to argue that spending by the Labour and Liberal Democrats parties will be nearly equal because both parties will be able to spend up to a maximum amount fails to take into account the capacity of parties to raise money up to the maximum".—[Official Report, Commons, 10/1/00; co1.38.]
The Liberal Democrats have a £3 million spending limit. They may well be unable to raise the £3 million. However, if they do not, the Labour Party can give them the money they need to reach that limit. If they can raise only, say, £1.5 million, the Labour Party can give them £1.5 million. We raised this in Committee two weeks ago. I pointed out that allowing political parties to donate to other political parties under Clause 49(2)(c) would allow the Labour Party to top up the Liberal Democrats, thus proving that the Home Secretary's argument last January in the other place was bogus. The Minister responded by stating:
"It is possible that where particular parties share the same objective on an issue, one of those parties may see fit to provide some financial support to the other".—[Official Report, 12/10/00; co1.565.]
Exactly. What the Minister said last week confirms the argument I made about the Labour Party topping up the Liberal Democrats in a referendum on the single currency, or any other topping up. It might be the Labour Party topping up the Scottish Nationalists or Plaid Cymru; it does not really matter.
The Minister had other concerns about my amendment to stop all political parties donating to other parties. He said that it would adversely affect parties in a coalition or the relationship between the Labour Party and the Co-operative Party. I have drafted this amendment to meet both my concerns and those of the Minister. I hope that we may have a consensus on it.
My Amendment No. 234YHA—the Scrabble amendment—would allow the Labour Party and the Co-operative Party to donate as much money to each other as they liked. Indeed, it would allow the Labour Party to give as much money to the Liberal Democrats as it liked. We hear from Mr Ashdown's diaries that the Prime Minister has great plans for a Lib-Lab pact. However, I suspect that some members of the Labour Party would not be so keen. I shall not mention the Deputy Leader—but I have.
My amendment would stop donations from the Labour Party being used to top up the Liberal Democrats in a referendum campaign. Where parties were acting in concert and one had a low limit but lots of money to spend, the other being in the reverse position, they could easily transfer money in order to maximise advantage. I thought that the whole point of basing spending limits on individual parties and their

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electoral success—I believe that is the phrase in fashion—at the last election was that those parties were considered distinct and were not being considered the same.
The Bill as drafted clearly allows for the situation I envisaged. If it does not, I hope that the noble Lord will tell me that I am wrong and that no money can transfer from the Labour Party to the Liberal Democrats to help that party reach the £3 million limit. If he cannot say that I am wrong, I suggest that he accepts my amendment or, if his draftsmen do not like my amendment, that he comes forward with a suitable amendment at the next stage. I beg to move.
Lord Bassam of Brighton: As the noble Lord said, this takes us back to last week's question when he took exception to the fact that one registered political party would, theoretically, be able to donate to another political party. Perhaps because he has a conspiracy theory he used the Labour Party and the Liberal Democrat Party as examples in this debate. As he said, Amendment No. 234YHA seeks to close off that option, at least in respect of referendums.
The noble Lord clearly has in his sights the possibility that in a referendum on the euro the Labour Party, having set aside £5 million for its own campaign, might contribute to the campaign of the Liberal Democrats. I entirely accept that that is a theoretical possibility; but it is no more than that. Theory is fine; practice is different. As I explained to the Committee earlier, we fully accept that the limits on referendums expenses provided for in the Bill would not produce a wholly level playing field as between the two sides in a campaign. We do not pretend therefore that the expenditure controls represent the complete solution. However, as I argued before, the limits will ensure a more balanced campaign than would be the case if there were no limits at all.
We expect permitted participants in a referendum to campaign either under their own name, as part of an umbrella group, or as a combination of the two. If any political party or, for that matter, any individual or company sought in addition to contribute to the campaigns of other permitted participants, that would be exposed and the electorate would form a judgment on such tactics. It goes back to the issue partly rehearsed in the earlier debate.
Such a move would not necessarily be contrary to the letter of the provisions in Part VII, but it would be strongly against the spirit of the spending controls. We have not sought to close off such a tactic because any attempt to do so would come back to the Neill committee's observation on Heath Robinson's contraptions. Those comments were apposite in that context and are apposite in this.
I see no merit in singling out registered parties as Amendment No. 234YHA seeks to do. In any event, it is worth remembering that Part VII is not simply concerned with referendums held throughout the United Kingdom. What if there were to be a further
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referendum in Northern Ireland? If this amendment were accepted, the Conservative Party registered in the Great Britain register could not contribute to any campaign mounted by the Northern Ireland Conservative Party. Likewise, the Labour Party could not contribute towards the SDLP's campaign and the Liberal Democrats would be prevented contributing to the Alliance Party's campaign.
Why should the Co-operative Party be prevented making a donation to a referendum campaign conducted by the Labour Party, or for that matter an umbrella organisation which might involve the Labour Party and other like-minded souls? There are long-standing constitutional links between the Labour Party and the Co-operative Party and if one wishes to make a donation to the other, it should be allowed to do so.
I hope that, on reflection, the noble Lord, Lord Mackay, does not see too many conspiracy theories in operation. He is not usually a conspiracy theoretician, but I know he can be drawn dangerously in that direction. However, on this occasion I hope that he feels able to withdraw his amendment.
Lord Mackay of Ardbrecknish: Clearly the noble Lord has been too busy briefing himself for this Bill to read the extracts from The Ashdown Diaries in The Times over the past two days or he would see that one does not have to get up early in the morning to devise a conspiracy theory. It was clearly going on behind his and his colleague's back, both before and after the last general election.
So I am afraid that all the Minister has convinced me of is that the scenario I set out is even more likely to happen; that in fact money will be moved. If one of the parties in the coalition of parties on one side of a referendum cannot find enough money to reach its ceiling, it can be given that money by the other parties.
We have exposed a serious defect in the Bill. The noble Lord has an easy solution; that is, do not set limits. The Labour Party would not have to siphon off its extra money to the Liberal Democrats round the back door. It could spend its £5 million; the Liberal Democrats could spend as much as they could raise and the Tories could spend as much as they could raise. That is a simple solution.
The Bill has a serious loophole. We shall need to study carefully what the Minister said and find ways to address it, without damaging the close relationship between the Labour Party and the Co-operative Party. Frankly, why they have to sail under different flags nowadays beats me. They should decide to amalgamate fully and not pretend that they are two different parties.
I was not impressed by the Minister's argument in relation to a Northern Ireland referendum. I would be quite happy to close off money going that way across the Irish Sea just as he, in the Bill, wants to close off money coming the other way in terms of general elections. I would have no problem with that, and his explanation did not convince me that my amendment

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was wrong. We shall study what he said. We may come back to this major loophole in the Bill at another stage. But I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 234YHB:
Page 69, line 15, at end insert—
("() No donation received by a registered party which is registered in the Northern Ireland register from a donor who is a permissible donor by virtue of an order made under section 65 shall be used to make any payment in respect of referendum expenses incurred in relation to Great Britain.").

The noble Lord said: In moving Amendment No. 234YHB, I shall speak also to Amendment No. 234YHC. This leads directly on from my closing remarks on the last amendment and concerns Northern Ireland.
These two amendments would prohibit the foreign funding of referendum campaigns. I cannot help but notice that the Minister did not answer my question, posed twice, about the rich man in Belgium or France who decides to fund the "Yes" campaign for the euro to the tune of £10 million; he funds it in Britain, well in excess of the £500,000 he would be allowed as a participating party. Who would prosecute him? How could he be stopped? The Minister did not answer that. He may answer now.
I want to explore the foreign funding which will be allowed to go into Northern Ireland. We all know that, to allow Sinn Fein/IRA to continue to receive money from America, the Bill is going to elaborate lengths to allow foreign donations in Northern Ireland, basically to one political party, when all other political parties in the UK will not be able to receive any foreign money at all.
I tabled these amendments at the end of last week. I am sorry they are late. They arose out of detailed point s in the debate instigated by my noble friend Lord Astor. Last week he asked the Minister, in relation to Amendments Nos. 177A and 178:
"In so far as the amendments allow for a complete exemption from Part IV, will they allow the foreign funding not only of political parties in Northern Ireland, but of referendum campaigns?".
My noble friend also highlighted a further loophole. He said:
"It seems possible for a political party to be set up in Northern Ireland, to receive foreign funding … and to use that funding not to contest elections in Great Britain, because that is ring-fenced under the Bill, but to campaign in a referendum in Great Britain. What is to stop that?".—[0fficial Report, 18/10/00; col. 1035.]
Eventually, after being further pressed by my noble friend, the Minister said:
"I like to be straight with your Lordships' House. The information I have from officials is that Northern Ireland parties can use the fruits of money raised abroad in a UK referendum. That may well present difficulties"—[Officia Report, 18/10/00; col. 1038.]
That is an understatement.
So considerable difficulties arise, especially for the Minister, who went on to say in a later debate—I suspect his brief had not been adjusted in the Dinner Hour—
"The Government are … committed to banning the foreign funding of political parties in the United Kingdom".—[Official Report, 18/10/00; col. 1183.]
That is stretching it. Perhaps he actually said "in Great Britain", because they are not going to ban the foreign funding of political parties in the United Kingdom; only in Great Britain. It was an interesting slip of the tongue, if that is what it was.
He went on to say
"It is right that the ban should extend to the foreign funding of participants in a referendum campaign here. The justification for that policy is that those who participate in our political processes should not be dependent upon funding from those who do not live, work or carry on business here".—[Official Report, 18/10/00; col. 1183.]
However, the Minister neglected to remind the Committee that the Government will not implement that policy when it comes to Northern Ireland.
I do not believe that people who give money to the notorious fund raiser, Martin Galvin, who was mentioned by the noble Lord, Lord Molyneaux, last week, live, work or carry on business in any part of the United Kingdom. However, as a result of the failure to ban all foreign funding, the loophole which my noble friend highlighted last week has arisen. The Minister admitted that it existed.
Under the Bill as presently drafted, in any UK referendum supporters on both sides of the argument could register a Northern Ireland political party on the Northern Ireland register. The party would have to make a declaration that it intended to stand candidates in elections in Northern Ireland. That is easy. Even if the party never did any campaigning in Northern Ireland, it would still benefit from the exemptions in the Bill in the NORAID clause, Clause 65. It could obtain money from foreign sources anywhere in the world—America, Europe, Japan or wherever—and that foreign money could then be used to fund referendum campaigning anywhere in the United Kingdom. There is nothing in the Bill to prevent that.
If the Minister agrees with that argument—if he cannot counter it—and if he chooses not to close the previous loophole, he must close this one. In order to close the loopholes, my amendments would prohibit the Northern Ireland parties from spending foreign money on any referendum campaigning in Great Britain. That would address my point about the front parties. Amendment No. 234YHC would prohibit Northern Ireland parties from using foreign money to fund any referendum campaign, including a referendum campaign in Northern Ireland. I make no bones about the fact that I prefer Amendment No. 234YHC because it would prohibit all foreign funding of referendums throughout the United Kingdom. And I still believe that it is a united kingdom—I do not believe that we should be making a distinction between Great Britain and Northern Ireland.
The two approaches raise another question for the Minister: do the Government intend to allow foreign funding of referendum campaigning in Northern Ireland in the same way as they are to allow the foreign funding of election campaigns, or do they want to prohibit the foreign funding of referendums throughout the United Kingdom, including Northern Ireland?
I believe that the Minister should respond to those points, especially in the light of the remarks he made last Wednesday, which I quoted. It is really important that, if there ever is a referendum on the status of Northern Ireland as an integral part of the United Kingdom, the result should not be influenced by a vast inflow of money, largely from across the Atlantic. If the Minister says that foreign money cannot fund political parties in Great Britain—for instance, the Scottish National Party which has a legitimate desire that Scotland should be independent and pursues it in a perfectly wholly democratic manner—by Jove, the same rule should apply in Northern Ireland, especially to parties which have not pursued their aims in a wholly democratic manner.
I do not want any nit-picking about the amendments. I want the Minister to address my main question: have I identified a loophole? Will my amendment plug it? If not, will the Minister come forward at the Report stage and plug it? I do not believe that the Government really intend foreign money to come into Northern Ireland and by that route fund referendums in the United Kingdom or in Northern Ireland. I hope that the Government agree with me on that in principle. If they do not like what I have proposed, I hope that they will come forward with their own amendment. I beg to move.
Lord Rogan: It is with pleasure that I rise to support Amendment No. 234YHC, moved by the noble Lord, Lord Mackay.
I, too, share the concerns with regard to referendum campaigns in Northern Ireland. Referendums have previously occurred in Northern Ireland, solely on Northern Ireland issues, notably Heath's "border poll" of 1973. Indeed, the principle of consent in the Belfast agreement allows for the possibility of another "border poll" in the future, although, with respect to a referendum under the Belfast agreement, I consider the point academic; that is to say, it is academic in the sense that I do not believe that nationalism in Northern Ireland will ever be sufficiently well supported to bring about a change in the constitutional position of Northern Ireland. Even if I were to be proved wrong, I do not believe that the unionist people in Northern Ireland could have their votes bought by dollars from North America, just as they were never bullied by weapons bought by dollars from North America during the 30 years of terrorism.
Returning to the amendment moved by the noble Lord, Lord Mackay, I have grave concerns about the potential for front parties, not even contesting elections in Northern Ireland, being used by larger
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parties on the mainland as a means of processing foreign financial support for a UK-wide referendum. Clearly, that is a nonsense situation. If the provision is to remain as it is, it might as well not he present in the Bill at all.
Our nationalist friends in Scotland and Wales could potentially be in a strong position to exploit a so-called "well meaning" non-UK citizen by use of front parties in Northern Ireland, just as Sinn Fein already is, not to mention the political wings of the republican dissidents.
By way of conclusion to my brief remarks, I want to reiterate my strong support for Amendment No. 234YHC. This lacuna in election law must be bridged. However, I shall leave your Lordships in no doubt as to the best solution to this flaw in referendum law. This flaw is a problem but it is the symptom of a greater problem. I strongly urge the Government to stick to its manifesto pledge, treat all UK citizens equally and ban all foreign funding for all UK political parties.
Lord Bassam of Brighton: Before replying to the issues raised by the noble Lord, Lord Mackay, perhaps I may clarify two points which have some bearing on the matter. First, schedule 14 imposes restrictions on the acceptance by a permitted participant of donations from abroad. The referendum campaigning organisations therefore could not accept money from, for example, a wealthy Frenchman.
Secondly, Amendment No. 239 prevents a permitted participant, other than a designated organisation, from accepting a donation from any registered party. Therefore, a Northern Ireland party cannot transfer a foreign donation it receives to a referendum organisation in Great Britain. I believe that that deals with two issues which were raised by Members opposite.
Viscount Astor: I am grateful to the Minister for giving way. The Minister told us that a Northern Ireland party could not use foreign donations to give to a UK party. However, what happens if in a referendum Sinn Fein or any other Northern Ireland party campaigns in the United Kingdom? We know that there is ring-fencing for general elections, but last week the Minister told us that no such rule related to referendums. Therefore, could Sinn Fein, the SDLP or the Ulster Unionists for that matter use foreign donations to campaign in this country during a referendum?
6 p.m.
Lord Bassam of Brighton: The noble Viscount asks the question again, and I shall provide him with a precise answer.
I should like to return to a matter raised by the noble Viscount last week in Committee in the context of Clause 65, which in a sense is the subject of this debate. That clause provides for the categories of permissible donor to be extended, or alternatively for the controls set out in Part IV to be wholly disapplied, in respect of Northern Ireland parties. It has been suggested that

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the Bill does not appear to prevent Northern Ireland parties passing on funds received from a foreign source to referendum campaigns elsewhere in the United Kingdom. The amendment seeks to address that by placing restrictions on the purpose to which any particular donation to a Northern Ireland party is put. As I understand it, the intention is to prevent any foreign funding received by a Northern Ireland party being used to meet referendum expenses either in Northern Ireland or Great Britain.
As the Committee is aware, in the case of political parties the Bill places restrictions on the acceptance of donations rather than the use to which they are put. It would in practice be very difficult to establish that a certain item of political expenditure was financed by any particular donation. Moreover, if an order is in force under Clause 65 which exempts Northern Ireland parties from the controls in Part IV, it is not clear to me why such a party should be able to use any foreign donations on its headquarters or to fight a general election campaign but not to fight a referendum campaign. That is equally true whether the referendum is confined to Northern Ireland or is being held throughout the United Kingdom.
Although I am not persuaded of the case for preventing a Northern Ireland party using the proceeds of a foreign donation to meet its own referendum expenses, I see the need to ensure that other referendum organisations do not use a Northern Ireland party purely as a front to receive foreign funding. But the Bill already contains safeguards in Part II and Schedule 14 which would prevent a Northern Ireland party simply acting as an agent in passing on a donation from a foreign source intended for a referendum campaign group in the first place.
I accept that this is complex, and I ask the Committee to study carefully what I have said. I also accept the integrity and ferocity of the argument and the concern that has been expressed. We must try to live in the real political world. Although it is very difficult to accept some of these positions, we believe that the overall scheme of things works well. Clearly, in the case of Northern Ireland there are certain difficulties. That fact needs to inform all of our debates on this particular issue.
Lord Mackay of Ardbrecknish: We need to study carefully the response of the Minister. On 18th October, the Minister appeared to say that foreign funding of a referendum campaign would not be allowed. Towards the end of his remarks I believe that he moved away from that when he said that Northern Ireland was different. It is odd that in a referendum held in the United Kingdom, of which Northern Ireland is a part, some funding can come from foreign sources. The Minister said:
"It is right that the ban should extend to the foreign funding of participants in a referendum campaign here".—[Official Report, 18/10/00; col. 1183.]
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I agree entirely with the noble Lord. However, I understood "here" to mean the United Kingdom. That was also the noble Lord's understanding, because a little earlier the Minister said:
"The Government are … committed to banning the foreign funding of political parties in the United Kingdom".
Is the Minister now saying that that does not include Northern Ireland and that he should not have referred to the United Kingdom but only to Great Britain? Do I correctly interpret the Minister as suggesting that in a United Kingdom referendum held in Northern Ireland as well as in Great Britain the funding of that part of it conducted in Northern Ireland could come from a foreign source?
Lord Bassam of Brighton: Amendment No. 180 to Clause 65, which has already been debated, prevents a Great Britain party accepting any donation from a Northern Ireland party as long as an order under that clause is in force. That prevents a Great Britain party in the case of a referendum using foreign funding received via a Northern Ireland party. I hope that that answers the point. I shall study carefully what the noble Lord has said. I do not want there to be any confusion over this matter, and I shall use my best endeavours to try to clarify the position.
Lord Mackay of Ardbrecknish: The Minister answers a question that I have not asked. I had understood from his remarks that money which came into Northern Ireland could not cross the Irish Sea for a referendum campaign, any more than it could for a general election campaign. My question is whether in a referendum in the United Kingdom foreign money will be able to pay for that part of the referendum campaign that takes place in Northern Ireland.
Lord Bassam of Brighton: I believe that the answer is "yes". However, I shall check the matter and write to the noble Lord. I see from the indications from the Box that that is the case.
Lord Mackay of Ardbrecknish: I am not surprised, because I did not ask the question without knowing the answer. The answer is "yes", and that is a disgrace. We shall return to this matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 234 Y HC not moved.]
Clause 109 agreed to.
Clause 110 [Restriction on making claims in respect of referendum expenses]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 234YJ to 234YN:
Page 69, line 31, after ("participant") insert ("during a referendum period").
Page 69, leave out lines 35 and 36 and insert ("not later than 21 days after the end of the referendum period").
Page 69, line 37, leave out from ("paid") to end of line 38 and insert ("not later than 42 days after the end of the referendum period").

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Page 70, line 11, at end insert—
("() Subsection (2) is without prejudice to any rights of a creditor of a permitted participant to obtain payment before the end of the period allowed under that subsection.").

Page 70, line 17, at end insert ("; and
() any reference to the treasurer or deputy treasurer of the registered party were a reference to the responsible person in relation to the permitted participant.").

Clause 110, as amended, agreed to.
Clause 111 [Disputed claims]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 234YP to 234YV:
Page 70, line 20, after ("participant") insert ("as mentioned in section 110(1)").
Page 70, line 24, leave out ("section 110(1)") and insert ("that provision").
Page 70, line 33, leave out subsection (3).
Page 70, line 37, leave out ("Subsections (4) to (7) of section 72") and insert ("for the purposes of this section—
(a) subsections (4) and (5) of section 110").

Page 70, line 40, after ("claim") insert ("(whether it is disputed or otherwise) which is").
Page 70, line 40, leave out (" 72(1)") and insert (" 110(1); and
(b) subsections (6) and (7) of section 72 shall apply as if any reference to subsection (4) of that section were a reference to section 110(4) as applied by paragraph (a) above.").

Clause 111, as amended, agreed to.
Clause 112 [General restriction on referendum expenses]:
Lord Lamont of Lerwick Lord Lamont of Lerwick moved Amendment No. 234YV:
Page 70, line 42, at beginning insert ("Subject to subsection (1A),").
The noble Lord said: I am aware that the Committee is anxious to make progress and I shall speak briefly to the amendments in this group. These are probing amendments which are designed to elicit a response from the Government about how the controls on the financing of propaganda in a referendum on the euro would apply to the institutions of the EU. These two amendments were part of a wider group, the main part of which was debated a couple of weeks ago. I missed that debate. I apologise to the Minister for any discourtesy in not being here on that occasion. None the less, I should be grateful to the noble Lord for some kind of statement about how far the EU, through its institutions and public relations operations, will be subject to the various caps that the Committee has debated.
A large number of the amendments debated this afternoon have been about foreign funding in relation to companies, political parties and referendums in Northern Ireland. Much of the same concern ought also to apply to any referendum on the single currency which is held in this country. It should be for the people and institutions of this country to participate in that. Mr Prodi was very wise to say that the European Union intended to keep out of the Danish referendum, notwithstanding that the result did not go the way that
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he wanted. I believe that any attempt by the EU to intervene would be counter-productive, but it would be helpful to have a statement from the Minister on this matter.
A great deal of money is being spent at the moment by institutions of the EU. For example, organisations like the European Movement were specifically set up to receive funds from the Commission. In the UK there are 24 European information centres funded by the EU which put out views on the single currency. How will this be affected by the various caps during the period of the referendums?
The other day I came across a Commission publication called A Glossary of Euro-Sceptic Beliefs which had a large number of rather contentious pro-European statements. The most amusing of them was a denial that Brussels financed any propaganda in Britain. It did not seem to see the irony of having a publication that denied that there were any publications.
Amendments Nos. 234YV and 234YW deal with Clause 112. That clause makes it an offence for a person to incur expenditure in excess of £10,000 unless those people are permitted participants. The purpose of the amendment is to ensure that no expense can be incurred by or on behalf of any institution of the EU.
Amendment No. 242M deals with Clause 120 which prohibits the Government of the day or any local authority or any other publicly-funded body displaying promotional or distributing promotional material 28 days prior to the poll. I wish to have an assurance that that will apply to the institutions of the EU in this country. These are modest amendments. They were part of a wider group in which larger points were made. I should appreciate the Minister's response to them.
6.15 p.m.
Lord Bassam of Brighton: I have no doubt that the noble Lord tabled the amendments with an eye to a future referendum on joining a single currency. But it is worth reminding the noble Lord that we are talking here of a Bill outlining a scheme for the holding of a referendum on perhaps a multitude of things. The purpose of this part is to put in place generic arrangements for the conduct of any national or regional referendums. These arrangements may be used for a referendum on British membership of the single currency. But equally they could be used for a referendum on proportional representation, on the introduction of elected regional government in England or on any other important issues of the day.
Given that the purpose of the Bill is to establish general rules for all referendums, we do not want to add extraneous provisions which are designed with one referendum, and one referendum only, in mind. If a referendum on a particular issue warrants special rules, they can be provided for in separate legislation. That will be necessary in any event to ensure that that referendum takes place.
I am not persuaded that the noble Lord's amendments add anything to the existing provisions of the Bill. As drafted, Clause 112 provides that an

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individual or organisation cannot incur referendum expenses in excess of £10,000 unless they are a permitted participant. Amendments Nos. 234YV and 234YW are intended additionally to prohibit the incurring of any referendum expenses by institutions of the EU during the referendum period. I say "intended" because as drafted the apparent effect of the amendment would be to prohibit any expenditure whatever by an institution of the EU during a referendum period. No doubt the noble Lord has ambitions for his amendments, but I am not quite sure that that was the real extent of his ambition. I know the noble Lord has a reputation for singing in the bathroom and perhaps generating a lot of atmosphere, but I am not sure whether he was trying to achieve that in the amendments. Perhaps the noble Lord can disabuse me of that.
If the noble Lord looks at the definition of a "permitted participant" in Clause 100, he will see that a permitted participant must be either a registered party, an individual, a company, or an unincorporated association. The European Commission or Parliament is none of those things. The amendment would therefore have no practical effect other than to prevent an institution of the EU spending up to the lower limit of £10,000. I am not persuaded that there is a case for singling out the institutions of the EU for such a marginal tightening of the scheme. As drafted, that is what its effect would be.
Amendment No. 242M would apply the restrictions on the publication of promotional material set out in Clause 120 of the Bill to European Union institutions. The effect would be to prevent the European Commission from publishing promotional material about the euro in the 28 days before the date of the poll. I assume this amendment is an alternative to Amendments Nos. 234YV and 234YW since a restriction of that kind would be unnecessary if the institutions of the EU were unable to incur referendum expenses. Again the amendment seems to miss the target. If, as the noble Lord has made clear, his objective is to prevent any involvement by the European Commission in a referendum on the euro, why place restrictions in its way that apply only in the 28 days prior to the date of the poll?
I am well aware that this debate is driven by acute sensitivities about the involvement of the institutions of the EU in the making of any decision to join the euro. The reality is that the decision to join the euro is a matter for the British people and the British people alone. My view and the Government's view is that it would be entirely counter-productive for the commission to become embroiled in a referendum campaign on this issue. That is probably something on which we could all agree. This simple truth will be far more powerful than any single provision that could be made in the Bill which would, in any event, as I see these amendments today, be of doubtful legal value. If the noble Lord, Lord Lamont, remains to be persuaded of that fact he has only to look at the example of the recent Danish referendum to see that his fears of a "Yes" campaign being funded from Brussels are entirely misplaced.
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There is a need for some realism about the intentions of the Commission. That needs to go hand in hand with some realism about what such a prohibition could achieve. An explicit ban on referendum expenditure or the publication of referendum material by the institutions of the EU would beg the question how such a ban could be enforced. The territorial application of the Bill is confined to the United Kingdom. It could not bite upon expenditure or the publication of material on the Continent. Given the immunities for which the protocol on the privileges and immunities of the European Communities provide, the jurisdiction of our courts in relation to a breach of the provisions of this part by an institution of the Community would be extremely doubtful.
We believe that these amendments are unnecessary. They are not drafted precisely enough. I think—no doubt Members of the Committee will share this view—that any intervention in a UK referendum on an issue as sensitive as the euro would be wholly insensitive and extremely unwise. I hope that the noble Lord will withdraw his amendment.
Viscount Astor: The Minister has given an interesting answer about the European Union. If I heard him rightly, he said that the institutions of the Commission probably would not go up to £10,000. They would be unwise if they did; but however they could if they wanted to. The problem with all these institutions is that, for one reason or another and whichever side they are on, they always feel the case is not being adequately explained. Therefore, they feel that they should intervene, not because they are on one side, but because the facts are not exposed. They always find a reason for intervening. So the answer is that there are many small institutions in Europe that between them could spend quite a lot of money.
The Minister rightly said that there would be a limit unless someone was a permitted participant. Under Clause 100(1)(b) we find the definition of permitted participant. It refers to,
"any company falling within section 49(2)(b)".
One finds that that can be a company registered under the Companies Act 1985 or a company incorporated within the European Union. If there was a referendum on the euro, the European Central Bank or any other bank in Europe might decide that it was in its interests to persuade the voters of this country that it should intervene. It might be the French central bank feeling that it would be of benefit to the euro if we joined it or it might be the German central bank. Under the European Union, the European Central Bank is incorporated. Am I right in thinking that it could then use the money and become a permitted participant to help fund one or other aspect of a referendum campaign?
Lord Shore of Stepney: There really are difficulties with this issue and they arise not wholly because of the Bill itself. As matters stand, the European institutions are free to intervene in our referendum campaigns, particularly in the sensitive one, as it is bound to be, on the euro itself. Only a few hundreds yards away from

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your Lordships' House there are the diplomatic headquarters in London of the European Union, appropriately named Jean Monnet House, in case my noble friend may have difficulty in physically identifying it. Jean Monnet was the great founder of European federalism. Jean Monnet House serves two purposes. It represents the European Union as a quasi-state, having proper diplomatic relations with us. Those relations must clearly continue when we have a referendum campaign. But it also has another and much more expensive function. It is there to propagandise; it is there to proselytise on behalf of the European Union. My noble friend cannot ignore that.
Before the founding 11 joined the single currency less than two years ago, the European Commission spent millions. A Commissioner was given the special task of proselytising in the different countries of the European Union the case for membership. Are we really to sit back and allow this to happen in our own country? The answers I have had previously from my noble friend, in so far as I can sum them up, have been embarrassed avoidance of the difficulties of answering the questions. After all, it is rather humiliating to have to say that we have no power; that the European Court of Justice has ruled; that we are the helpless dependent state in relation to the management of our own affairs, the conduct of referendums and the finance of political parties in the UK. It is shaming.
This is one of the worst Parliaments I have ever heard of or been in. We are inflicting an act of humiliation on ourselves, for which I shall never forgive the Government and for which I believe the country will never forgive them either. That is incidental to the major case against European intervention, but there is ongoing propaganda on these very matters. The immediate question is whether we can order the European Commission to stop its ongoing propaganda in our schools and universities and through all these business schools and Jean Monnet professorships up and down the land. Are we not entitled to say "Stop!" even for a mere few weeks while we have our referendum? My noble friend must find some answers. Otherwise, frankly, it is not much use speaking from the Front Bench on these issues.
Lord Norton of Louth: Perhaps I may follow that intervention but in a slightly more specific way in relation to Clause 120 and the Minister's response to my noble friend Lord Lamont on Amendment No. 242M. I am not concerned with the possibility of a referendum on any specific issue. I want to follow the Minister's point, which is that the measure sets down rules that will apply to all referendums. As he said, they are meant to be generic rules.
Clause 120 sets down rules that will apply in any context. They will apply a prohibition in terms of publication on both national and local government, whatever the topic of the referendum. But I cannot see that, in logic, one can then say that one should not also add a prohibition on supranational governmental institutions. That is quite logical; it is all-encompassing. The logic is completely on my noble
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friend's side. The Minister said in response that the Government are precluded from doing that because the institutions of the EU have a right to pursue that course. That creates problems and will evoke the kind of response that we have heard if the position is allowed to pertain that in a referendum campaign institutions of the EU will be able to publish documents but national and local government will not be able to do so. That will cause tremendous problems.
If one cannot add the EU in the way suggested by my noble friend Lord Lamont, the logic would be to remove the prohibition on national and local government. One has either to allow all levels of government to publish or one must put a prohibition on them all. One cannot allow the present situation to be maintained because the problems that will be created, not only practically but politically, are extraordinarily severe.
Lord Pearson of Rannoch: I support my noble friend's amendment, which the Minister seemed to find acceptable in general but unnecessary. The Minister said that EU institutions will be allowed to spend a mere £10,000 each on the eventual exercise—we are concentrating at the moment on the question of EMU—but can he say how many institutions he has in mind? Is he just thinking of the Parliament, Commission, Council and Court? Is he aware of the colossal number of bodies under the European umbrella that could be classified as institutions? That throw away line needs some quantification from the Minister.
Can he also explain what he went on to say in a little more detail? He seemed to think that European Union interference in any referendum on our joining EMU was not very acceptable but was not much of a problem. But he then went on, rightly of course, to point out that the Bill covers other kinds of referenda that we might have—on proportional representation, elected regional government, and goodness knows what else. How does he justify that? If he is unhappy with the European Union interfering in a referendum on the single currency, surely he must be more worried about it interfering in more extraneous matters; or is he not? The noble Lord looks puzzled. But it is a perfectly sensible question and Hansard will bear me out. I shall be very interested in his reply. How many institutions are we talking about? If he is worried about EMU, why does he think it all right for the provisions of the Bill as drafted to apply to matters which concern the European Union even less than the single currency?
Lord Prior: Before the Minister replies, I wonder whether he would like to consider this further point. I really feel quite sorry for him because I know what happens on these occasions. The Minister goes through the list of amendments with civil servants, with an occasional input from the Home Secretary or the Minister of State, and then against all amendments, with very few exceptions, is put the word "resist". The pure chap is then left to resist what appear to be the very reasonable cases put to him.

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This is a small amendment. In itself, it is not of overriding importance. However, it has served to demonstrate once more the inadequacy of our parliamentary system and how, day after day, it is being brought into disrepute. I have not been able to attend all the debates in Committee on this Bill, but I have listened to many of them. I believe that we have given the Minister an impossible task to perform. I cannot see how he has been able fully to take on board the vast number of amendments which he has needed to argue against and resist, bearing in mind the equally vast number of amendments tabled by his own Government.
This kind of atmosphere is now beginning to make people despair of Parliament. The Minister needs to think carefully about that when he is asked to reply on behalf of the Government and to resist what would appear to be perfectly reasonable suggestions and amendments. The amendment before us, which deals with what level of funding the Commission or its agents should be able to subscribe to a referendum held in the United Kingdom, covers perhaps only a minor point. However, if in this House we are not able to take a decision even on such a small matter, how on earth are we to be allowed to take decisions on matters of much greater importance which may come before us over the next few years? This exchange has provided a classic example of a Parliament that is beginning already to lose any sovereignty and any say over its own affairs.
Throughout my political career I have been a staunch supporter of the European Union. I do not support monetary union, but I remain a firm supporter of the European Union itself and the fact that Great Britain should be a part of that Union. However, I wonder whether this is not the kind of issue that is beginning to damage the whole concept of the European Union, thus bringing it into disrepute and turning the British public against it. If the Government are sincere in their wish to promote European unity, they would be well advised to think far more deeply about these affairs and not allow civil servants simply to write against an amendment the word, "Resist".
6.30 p.m.
Lord Bassam of Brighton: I thank the noble Lord, Lord Prior, for his interesting intervention. Perhaps it went rather wider than the issue we are debating here, but it did appear to bring a little sanity to the argument, which I felt was beginning to run away with itself. On occasion, I have the impression that any matter connected with the European Union attracts a degree of paranoia that it does not deserve. While I understand entirely the sincerity and integrity which lies behind some of the Euro-sceptic arguments, I believe that it is possible to overstate the case.
The noble Lord, Lord Pearson, said that he thought that the Government should be worried that the institutions of the European Commission might wish to interfere in some fashion with other referendums conducted within the United Kingdom; namely, referendums on issues other than whether we should
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adopt the euro. I think that it would he extremely unwise for the European Commission to embroil itself in the domestic politics of the United Kingdom.
I rather despair of the arguments that have been lobbed against the Government's position on this. I have tried to point out to the noble Lord, Lord Lamont, as helpfully as possible, that I have had very little difficulty in resisting his amendments because they are defective. They would not achieve their objective. Furthermore—I believe that some noble Lords will not want to hear this—so far as concerns the institutions of the European Commission, territorial constraints are in place on the application of the Bill. We cannot attempt to influence affairs outwith the United Kingdom in the way in which my noble friend Lord Shore of Stepney—I say this with the greatest respect—attempted to encourage us.
That is the position as regards these amendments. This is, finally, a question of the difference between the theoretical and the practical. The Government seek to deal with these matters in the most practical way possible. To that end, I do not believe that the European Commission wishes in any way, shape or form to become involved in any attempt to slant the debate in this country.
It is perhaps worth adding a final reflection in support of my argument. During the entire course of the campaign leading up to the Danish referendum, Mr Prodi made only one visit to Denmark. I doubt whether that visit made any difference at all. Indeed, if it swayed opinion even marginally, it probably helped the "No" campaign. The Commission is intelligent enough to understand that point. What we need to do is to ensure that the sensible provisions contained in the Bill, which are generic in their effect on referendums held in the United Kingdom, make their way on to the statute book. Extraneous matters that may arise as a by-product of a referendum campaign on the euro at some point in the future can of course be dealt with in the detail of the legislation which will relate to that particular referendum. That is the correct and failsafe procedure which we should all welcome.
Lord Lamont of Lerwick: I am most grateful to my noble friends Lord Prior, Lord Norton and Lord Pearson, as well as to the noble Lord, Lord Shore. Through their interventions they have demonstrated that, although the amendments in themselves may be modest, a serious and substantial point lies behind them.
The Minister was right to point out that, taken by themselves, the amendments are only "tail-ends" of amendments. What is the point of restricting Commission expenditure in areas where it is limited to £10,000? I can see the force of that argument. However, as I have explained to the Minister, these proposals formed part of a wider group of amendments which attempted to place the same restrictions on the Commission in areas where it could have spent much larger sums of money; namely, areas where donations of up to £500,000 could be given to each association or institution. For that reason, I think

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that the point is a serious one, even if the amendments are narrowly drafted and given that perhaps the drafting is not perfectly correct.
The Minister's comments on jurisdictional limits were startling. He has brought it home to us that even if we put as many caps as possible on different institutions in relation to the referendum—and even if he states categorically that it could not happen—in theory it would be possible for institutions of the European Union completely to bypass laws being put into effect through the Bill. That is something on which we all should reflect.
The Minister went on to say that we should not be paranoid about these matters. He assured the Committee that people would behave with restraint. Although I agree with the Minister that we need to be sensible, no doubt he will be aware that in Germany an investigation is currently under way into state funding from France being used in an alleged infringement of an election being held in Germany. That matter is presently being investigated and litigation may ensue. On occasion, evidence may be brought forward to suggest that such things can and do happen.
The Minister has certainly brought it home to the Committee that the powers vested in this House ultimately can exert very little control over what is done by the Commission and its institutions. As the noble Lord, Lord Shore, pointed out, a tremendous propaganda effort is being made. Indeed, recently I have read a striking book which was written by the noble Lord's son. It gives a great deal of detail on this matter.
This is an extremely important subject, but I certainly do not intend to press the amendment to a Division at this point. However, I may well return to it when we debate the Bill on Report. On that understanding, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 234 YW and 235 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 235A:
Page 71, line 17, at end insert—

("(5) Where—

(a) at any time before the beginning of any referendum period, any expenses within section 106(2)(a) are incurred by or on behalf of an individual or body in respect of any property, services or facilities, but

(b) the property, services or facilities is or are made use of by or on behalf of the individual or body during the referendum period in circumstances such that, had any expenses been incurred in respect of that use during that period, they would by virtue of section 106(2)(a) have constituted referendum expenses incurred by or on behalf of the individual or body during that period,

the appropriate proportion of the expenses mentioned in paragraph (a) shall be treated for the purposes of this section as referendum expenses incurred by or on behalf of the individual or body during that period.

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(6) For the purposes of subsection (5) the appropriate proportion of the expenses mentioned in paragraph (a) of that subsection is such proportion of those expenses as is reasonably attributable to the use made of the property, services or facilities as mentioned in paragraph (b).").

Clause 112, as amended, agreed to.
Clause 113 [Special restrictions on referendum expenses by permitted participants]:
Lord Bach Lord Bach moved Amendments Nos. 235B to 235J:

Page 71, line 27, leave out first ("treasurer") and insert ("responsible person").

Page 71, line 28, leave out ("any") and insert ("the").

Page 71, line 37, leave out ("company") and insert ("body").

Page 71, line 39, leave out ("any") and insert ("the").

Page 71, line 40, leave out ("company") and insert ("body").

Page 71, line 42, leave out ("company") and insert ("body").

Page 71, line 43, leave out from beginning to end of line 3 on page 72.

Page 72, line 11, at end insert—
("() Section 112(5) and (6) shall apply, for the purposes of this section, sections 115 to 118 and Schedule 13, in relation to an individual or body that has become a permitted participant as they apply for the purposes of section 112 in relation to an individual or body that is not a permitted participant.
() For the purposes of this section and sections 115 to 118 and Schedule 13, any reference to referendum expenses incurred by or on behalf of a permitted participant during the referendum period includes any referendum expenses so incurred at any time before the individual or body became a permitted participant.").

Clause 113, as amended, agreed to.
Schedule 13 [Limits on referendum expenses by permitted participants]:
Lord Bach Lord Bach moved Amendment No. 235K:
Page 152, line 18, leave out paragraph 1.
[Amendments Nos. 235L and 237 not moved.]
Lord Bach Lord Bach moved Amendment No. 237A:
Page 152, line 39, leave out ("for an individual, company or unincorporated association") and insert ("in the case of a person or body").
[Amendment No. 238 not moved.]
Schedule 13, as amended, agreed to.
Clause 114 [Control of donations to permitted participants]:
Lord Bach Lord Bach moved Amendment No. 238A:
Page 72, line 14, leave out ("other than registered parties") and insert ("that either are not registered parties or are minor parties").
Clause 114, as amended, agreed to.
Schedule 14 [Control of donations to permitted participants]:
Lord Bach Lord Bach moved Amendments Nos. 238B to 239N:
Page 153, line 33, leave out ("other than registered parties") and insert ("that either are not registered parties or are minor parties").

203
Page 153, line 36, at end insert ("other than a minor party").
Page 153, line 38, leave out from ("donation") to end of line 39 and insert ("to the permitted participant for the purpose of meeting referendum expenses incurred by or on behalf of the permitted participant.").
Page 153, line 40, after ("2") insert (", 2A").
Page 153, line 40, at end insert—
("() In relation to donations received by a permitted participant other than a designated organisation, references to a permissible donor falling within section 49(2) do not include a registered party.
In this sub-paragraph "designated organisation" has the meaning given by section 105(5).").

Page 153, line 44, at end insert—
("(aa) any sponsorship provided in relation to the permitted participant (as defined by paragraph 2A);").

Page 154, line 1, leave out from ("by") to ("expenses") in line 2 and insert ("or on behalf of the permitted participant) in paying any referendum").
Page 154, line 3, leave out ("directly or indirectly by") and insert ("by or on behalf of").
Page 154, leave out line 9.
Page 154, line 13, leave out sub-paragraph (2) and insert—

("(2) Where—

(a) any money or other property is transferred to a permitted participant pursuant to any transaction or arrangement involving the provision by or on behalf of the permitted participant of any property, services or facilities or other consideration of monetary value, and

(b) the total value in monetary terms of the consideration so provided by or on behalf of the permitted participant is less than the value of the money or (as the case may be) the market value of the property transferred,

the transfer of the money or property shall (subject to sub-paragraph (2B)) constitute a gift to the permitted participant for the purposes of sub-paragraph (1)(a).

(2A) In determining—

(a) for the purposes of sub-paragraph (2)(c), whether any money lent to a permitted participant is so lent otherwise than on commercial terms, or

(b) for the purposes of sub-paragraph (2)(d), whether any property, services or facilities provided for the use or benefit of a permitted participant is or are so provided otherwise than on such terms,

regard shall be had to the total value in monetary terms of the consideration provided by or on behalf of the permitted participant in respect of the loan or the provision of the property, services or facilities.

(2B) Where (apart from this sub-paragraph) anything would be a donation both by virtue of sub-paragraph (1)(aa) and by virtue of any other provision of this paragraph, sub-paragraph (1)(aa) (together with paragraph 2A) shall apply in relation to it to the exclusion of the other provision of this paragraph.").

Page 154, line 17, after ("member") insert (", trustee").
Page 154, line 26, at end insert—

Political Parties, Elections and Referendums Bill

  Sponsorship
  2A.—(1) For the purposes of this Schedule sponsorship is provided in relation to a permitted participant if—

  (a) any money or other property is transferred to the permitted participant or to any person for the benefit of the permitted participant, and

  (b) the purpose (or one of the purposes) of the transfer is (or must, having regard to all the circumstances, reasonably be assumed to be)—

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  (i) to help the permitted participant with meeting, or to meet, to any extent any defined expenses incurred or to be incurred by or on behalf of the permitted participant, or

  (ii) to secure that to any extent any such expenses are not so incurred.

  (2) In sub-paragraph (1) "defined expenses" means expenses in connection with—

  (a) any conference, meeting or other event organised by or on behalf of the permitted participant,

  (b) the preparation, production or dissemination of any publication by or on behalf of the permitted participant, or

  (c) any study or research organised by or on behalf of the permitted participant.

  (3) The following do not, however, constitute sponsorship by virtue of sub-paragraph (1)—

  (a) the making of any payment in respect of—

  (i) any charge for admission to any conference, meeting or other event, or

  (ii) the purchase price of, or any other charge for access to, any publication;

  (b) the making of any payment in respect of the inclusion of an advertisement in any publication where the payment is made at the commercial rate payable for the inclusion of such an advertisement in any such publication.

  (4) The Secretary of State may by order made on the recommendation of the Commission amend sub-paragraph (2) or (3).
  (5) In this paragraph "publication" means a publication made available in whatever form and by whatever means (whether or not to the public at large or any section of the public).").
  Page 154, line 42, after ("2(1)(a)") insert ("(other than money)").
  Page 154, line 47, at beginning insert ("the total value in monetary terms of").
  Page 154, line 47, at end insert—
  ("(2A) The value of any donation falling within paragraph 2(1)(aa) shall be taken to be the value of the money, or (as the case may be) the market value of the property, transferred as mentioned in paragraph 2A(1); and accordingly any value in monetary terms of any benefit conferred on the person providing the sponsorship in question shall be disregarded.").

  Page 154, line 50, leave out from beginning to end of line 3 on page 155 and insert—

  ("(a) the total value in monetary terms of the consideration that would have had to be provided by or on behalf of the permitted participant in respect of the loan or the provision of the property, services or facilities if—

  (i) the loan had been made, or

  (ii) the property, services or facilities had been provided,

  on commercial terms, and

  (b) the total value in monetary terms of the consideration (if any) actually so provided by or on behalf of the permitted participant").

  Page 155, line 4, leave out sub-paragraph (4).
  Page 155, line 7, leave out ("or (4)").
  [Amendments Nos. 239P to 242 not moved.]
  Lord Bach Lord Bach moved Amendment No. 242A:
  Page 157, line 8, after ("donor") insert ("(whether or not falling within paragraph (a))").
  Schedule 14, as amended, agreed to.
  Clause 115 [Returns as to referendum expenses]:
  6.45 p.m.
  Lord Bach Lord Bach moved Amendments Nos. 242B to 242E:
  Page 72, line 21, leave out ("officer") and insert ("person").
  Page 72, line 34, leave out ("except where the permitted participant is a registered party,") and insert ("in a case where the permitted participant either is not a registered party or is a minor party,").
  Page 72, line 43, leave out ("subsection (3) of that section") and insert ("section 107(4)").
  Page 72, line 43, at end insert—
  ("() Subsections (2) and (3) do not apply to any referendum expenses incurred at any time before the individual or body became a permitted participant, but the return must be accompanied by a declaration made by the responsible person of the total amount of such expenses incurred at any such time.").

  Clause 115, as amended, agreed to.
  Clauses 116 and 117 agreed to.
  Clause 118 [Declaration of responsible person as to return under section 115]:
  Lord Bach Lord Bach moved Amendments Nos. 242F and 242G:
  Page 74, line 6, leave out from ("him") to end of line 9.
  Page 74, line 10, leave out ("the case of a permitted participant other than a registered party,") and insert ("a case where the permitted participant either is not a registered party or is a minor party,").
  Clause 118, as amended, agreed to.
  Clause 119 agreed to.
  Clause 120 [Restriction on publication etc. of promotional material by central and local government etc.]:
  Lord Bach Lord Bach moved Amendment No. 242H:
  Page 75, line 3, leave out from ("to") to ("which") in line 4 and insert ("any material").
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 242J:
  Page 75, line 7, leave out paragraph (b).
  The noble Lord said: In moving Amendment No. 242J, I shall speak also to Amendments Nos. 242L and 243 and stop the headlong dash through the Bill. Perhaps I may say how much I appreciate the noble Lord, Lord Bach, being so clear as to what is happening. It does help.
  Amendment No. 242J seeks to delete Clause 120(1)(b), which states:
  "deals with any of the issues raised by any questions on which such a referendum is being held".
  We are slightly puzzled as to what that paragraph aims to do. Perhaps the Minister will tell the Committee what kinds of material will fall inside that definition.
  Amendment No. 242L is different. It seeks to correct one of the major areas where the Government are attempting to make the playing field in a
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  referendum slightly uneven. I remind the Committee of recommendation 89 of the Neill committee report which states:
  "The government of the day in future referendums should, as a government, remain neutral and should not distribute at public expense literature, even purportedly 'factual' literature, setting out or otherwise promoting its case".
  Clause 120 provides that the Government should undergo a period of "purdah", if I can call it that, during which they will not be able to issue material relating to the referendum. But, while the referendum period itself can be up to six months, the purdah period for the Government is set at 28 days. So while a political party would be limited to spending up to a maximum of £5 million in the six months prior to the referendum, the government of the day could do what they liked with public funds up to 28 days before the poll. They could issue material with a Crown stamp on it; they could put up posters; they could have TV adverts advocating one way of voting in a referendum—and they would have unlimited access to public funds. That is not fair. Why should the government of the day be able to spend tens of millions of pounds during the period of a referendum campaign when other participants are tightly controlled? Clearly that is not what the Neill committee recommended.
  The amendment would mean that the restrictions on propaganda being issued by the government of the day would apply throughout the whole of the referendum period. That is what Neill recommended. It is also fair. If the Government, as they claim, want to allow the British public to get a balanced view, I hope that the Minister will support my amendment and prevent governments in future referendums wading in to skew the results in the days leading up to the 28 days of purdah.
  I turn to Amendment No. 243. The Government want to allow the continuation of "press notices" during the relevant referendum period. We wonder exactly what that means. I can understand that the Government may want to issue press notices relating to the administrative details of the referendum—that is perfectly understandable; I have no problem with that—but the provision is far too broad. It seems to me that it would allow Ministers to issue partisan propaganda in the guise of press notices—and, for example, to place it on the Internet for all to see—right up until polling day. I wonder whether government press officers would be allowed to brief journalists, even during the 28-day "purdah" period on the basis of such partisan press notices.
  What exactly is a "press notice" under the terms of the Bill? The Government could not find such a definition when the issue was raised in another place on 14th February. They have had plenty of time between then and now to find an answer. What kind of material does the sub-paragraph cover? Does it extend to websites and press officers? What does it extend to? If a referendum is to be fair and balanced—and the

  207
  Minister has been keen to emphasise his desire for that—the Government, as well as all the other participants, must play within the rules. I beg to move.
  Lord Molyneaux of Killead: I support what the noble Lord has said. I, too, wondered whether a press notice could be isolated from all the other publicity weapons which are at the disposal of a government of any complexion. A press notice would be issued, possibly in time to catch the eight o-clock news; but before that, the ''Today" programme could have an unidentified spokesman for the government initiate a debate. It might not be possible to get anyone else to give another side to the argument. I do not level this at any particular party, but with a press notice the temptation would always be for the government of the day to take advantage—to light the fuse, as it were. The controversy would then start, and government spin doctors would be the only people who really understood what was behind the press notice. We must therefore be extremely careful.
  I accept, as the noble Lord, Lord Mackay, said, that in that narrow band of legitimacy, it might sometimes be necessary to give straightforward information on methods of administration of the election and matters pertaining thereto, without in any way drifting into the politics of the referendum.
  Lord Norton of Louth: I support the views expressed on Amendment No. 243. On the face of it, subsection (3)(d) does appear to undermine the intention of the clause. I do not think that it can be rescued by a definition of "press notice". However it is defined, unless we change the normal use of language, that would not rescue it at all. One would have to redraw the paragraph itself. A press notice is essentially a notice that is issued to the press. I do not see how the basic definition can be changed.
  So what is to stop a government department issuing a document dealing at length with the issues raised in the referendum and simply heading the document "press notice" and releasing it to the press? That is then covered. That is surely publication by another route. It seems to offer an obvious way to circumvent the whole purpose of the clause. One cannot get round that by redefining "press notice". One either has to delete paragraph (d), or take it away and come back with a provision that is more clearly circumscribed; otherwise, unless the Minister has some compelling justification, it seems on the face of it to undermine the whole intent of the clause.
  Lord Bassam of Brighton: Clause 120 is our discharge of the recommendation in the Neill report. It simply says that we should stand back and leave campaigning during the critical part of the referendum to the political parties and other campaign organisations. The committee was sceptical about material which in previous cases was circulated to the electorate very close to the date of a poll. Clause 120 implements the committee's recommendation by providing for a 28-day embargo on the issue to the public of government publications.
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  The Neill committee has endorsed the approach that we have taken in Clause 120. In a letter to the Home Secretary dated 15th October 1999, the noble Lord, Lord Neill, writing on behalf of his committee, said:
  "we welcome your proposals on the part which should be played by the government in referendum campaigns".
  The Neill committee was clear that its proposed restrictions on the distribution of government literature should extend even to purportedly factual material. Subsection (1) specifies the type of material to which Clause 120 applies. Paragraph (b), which Amendment No. 242J would remove, extends the proposed restrictions to any material which deals with any of the issues raised by any question on which a referendum is held. The provision is something of a catch-all: it is quite possible that, for example, a leaflet setting out the actions a government would take in the event of a particular outcome might not be caught by paragraphs (a), (c) or (d). Paragraph (b) would ensure that the proposed restrictions did apply to such material and would therefore appear to deal comprehensively with the Neill committee's concerns in relation to factual material. I am therefore rather puzzled as to why noble Lords opposite, who have taken a hawkish view in relation to these provisions until now, wish to see the paragraph removed.
  With Amendment No. 243 we return to ground that has been dealt with in another place. Clause 120(3)(d) exempts press notices. The Neill committee was principally concerned that the government of the day might at public expense distribute material, even factual documents, which put forward the government's case or at least would have the effect of influencing the vote. Clause 120 is intended to prohibit that sort of distribution of unsolicited material addressed directly to the public at large. The exceptions in subsection (3), including press notices, are entirely consistent with the basic proposition that the government of the day should not be able unfairly to influence the conduct of a referendum campaign.
  It was suggested in another place that the Government might be tempted to put the words "press notice" at the top of a publicity leaflet which was then posted through everyone's letterbox. That is plainly absurd. A "press notice" is a notice to the press, not to the general public. I am sure that the courts would quickly put a stop to that sort of nonsense.
  Turning to Amendment No. 242L, this is concerned with the period during which the restrictions imposed by Clause 120 are to apply. Its effect would be to apply the restrictions in Clause 120 not to the 28-day period prior to the poll, but for the full referendum period—which, as was recognised by the noble Lord, Lord Mackay, could be six months. That proposition is misconceived. The 28-day period provided for in Clause 120 and the longer referendum period perform two different roles.
  The referendum period, which will usually begin on the date specified in a Bill providing for a given referendum to be held, is essentially an accounting period. It is the period during which the referendum campaigning organisations will be subject to the limits on expenditure and to the controls on donations.

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  Subject to the expenditure limits, campaigning organisations will be free to espouse their cause throughout the referendum period. Clause 120 imposes an absolute prohibition on the publication of the material of the kind mentioned in subsection (1). To extend this ban to cover the whole of the referendum period may mean that the period also covers that of the passage of the Bill providing for the referendum to be held. That would be absurd.
  In presenting a Bill to Parliament to provide for a referendum to be held, the government of the day must be able to explain and promote their policies. We accept that there comes a time when government should step back and leave it to the parties and others to make the running. A period of 28 days fits in well. Generally speaking, as an average—the noble Lord, Lord Norton, is probably more knowledgeable about this than I—most general election campaigns have lasted for something like 28 days; the previous one was an exception. The Neill committee made the general election campaign analogy. We believe that that is the right benchmark.
  In conclusion, it is worth nothing that, on Second Reading in another place, the honourable Member for South Norfolk (Mr MacGregor) endorsed the Government's approach. He said:
  "I am glad that the Bill includes the 28-day moratorium, which meets our point".—[Official Report, Commons, 10/1/00, col. 67.]
  I trust that the noble Lord will take careful note of that.
  7 p.m.
  Lord Mackay of Ardbrecknish: Before I decide what to do, perhaps the noble Lord can help me on one point. I listened very carefully to the Minister's response. He rightly questioned what would happen if the Bill were still being passed within six months of the date of the referendum. He pointed out that the Government have to continue to argue their case for having the Bill. But if the Bill is not passed until, say, four months before the referendum, would the expenditure clock start ticking on the day that the Bill is enacted or would it look back to the six months? I hope that I am making myself clear. I should be grateful if the noble Lord could help me with that query.
  Lord Norton of Louth: Before the Minister responds, perhaps I may return to the point about a press notice. Presumably, the Government would not need to produce literature, place a heading of "Press Notice" on the top and have it put through letter boxes. All they need do is produce something that actually is a press notice and give it to a friendly tabloid that will publish it. In that way, it would reach exactly the same people for less cost.
  Lord Bassam of Brighton: The difference between the noble Lord and I on this issue is that I accept that that is a legitimate course of action for government to take and the noble Lord probably does not. That much is clear. There is no attempt here, by some sleight of
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  hand, to obfuscate the issue. However, we are saying that government ought to be free to make their views plainly known. Indeed, in order to answer factual questions, it may need to do so by way of press notice. I am sure that the noble Lord will accept that point.
  Lord Norton of Louth: The way that the clause is drawn would not confine this to factual material; indeed, it could go beyond that and express an opinion, as long as it was in a document that was headed "Press Notice" and was released to the press.
  Lord Bassam of Brighton: I shall reflect further on the noble Lord's point.
  The noble Lord, Lord Mackay, posed a fair question. I can tell him that Clause 97(4) enables the Secretary of State to make an order defining the referendum period for a Bill still before Parliament. I believe, therefore, that that will cover the point. In other words, it will be up to the Secretary of State to define the time period. Clearly, it would be rather difficult to reach back in time.
  Lord Mackay of Ardbrecknish: I am grateful to the Minister for his reply. However, I shall read it most carefully in Hansard. I am somewhat puzzled as to the press notice point. As I said in my opening remarks, I accept that a press notice explaining a referendum—the time of opening of the polling stations, and so on—is perfectly legitimate. There is no problem in that respect. However, those of us who have been in government know that government produce many more press notices than those relating to a referendum. Such notices are issued by the press office in answer to points that opponents have made, or criticisms that have been made on whatever policy the Government are pursuing. They generally make the case for the Government's position.
  As the Government will be taking up one or other side in a referendum campaign, it seems to me that they will be able to continue issuing propaganda under the guise of a press notice, with no debar on the amount of money that they can spend. However, the other campaigning organisations will be debarred. That returns us to the point that nothing can be made fair in this game. As one of the major players, the Government will be able to play without any limit on their costs up to 28 days before the election, while other organisations will have limits on their costs. That does not seem to me to be fair. I shall study the Minister's response and may return to the matter at a later stage. I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  Lord Bach Lord Bach moved Amendment No. 242K:
  Page 75, line 13, leave out (", displayed or distributed").
  [Amendments Nos. 242L and 242M not moved.]
  Lord Bach Lord Bach moved Amendment No. 242N:
  Page 75, line 25, leave out ("display or distribution").
  [Amendment No. 243 not moved.]
  Lord Bach Lord Bach moved Amendment No. 243A:
  Page 75, line 31, leave out from ("means") to end of line 34 and insert ("make available to the public at large, or any section of the public, in whatever form and by whatever means (and "publication" shall be construed accordingly);").
  Clause 120, as amended, agreed to.
  Lord Bach Lord Bach moved Amendment No. 243B:
  After Clause 120, insert the following new clause—

  Sponsorship

    DETAILS TO APPEAR ON REFERENDUM MATERIAL
    (" .—(1) No material wholly or mainly relating to a referendum to which this Part applies shall be published during the referendum period unless—

    (a) in the case of material which is, or is contained in, such a printed document as is mentioned in subsection (3), (4) or (5), the requirements of that subsection are complied with; or

    (b) in the case of any other material, any requirements falling to be complied with in relation to the material by virtue of regulations under subsection (6) are complied with.

    (2) For the purposes of subsections (3) to (5) the following details are "the relevant details" in the case of any material falling within subsection (1)(a), namely—

    (a) the name and address of the printer of the document;

    (b) the name and address of the promoter of the material; and

    (c) the name and address of any person on behalf of whom the material is being published (and who is not the promoter).

    (3) Where the material is a document consisting (or consisting principally) of a single side of printed matter, the relevant details must appear on the face of the document.
    (4) Where the material is a printed document other than one to which subsection (3) applies, the relevant details must appear either on the first or the last page of the document.
    (5) Where the material is an advertisement contained in a newspaper or periodical—

    (a) the name and address of the printer of the newspaper or periodical must appear either on its first or last page; and

    (b) the relevant details specified in subsection (2)(b) and (c) must he included in the advertisement.

    (6) The Secretary of State may, after consulting the Commission, by regulations make provision for and in connection with the imposition of requirements as to the inclusion in material falling within subsection (1)(b) of the following details, namely—

    (a) the name and address of the promoter of the material; and

    (b) the name and address of any person on behalf of whom the material is being published (and who is not the promoter).

    (7) Regulations under subsection (6) may in particular specify—

    (a) the manner and form in which such details must be included in any such material for the purpose of complying with any such requirement;

    (b) circumstances in which—

    (i) any such requirement does not have to be complied with by a person of any description specified in the regulations, or

    (ii) a breach of any such requirement by a person of any description so specified is not to result in the commission of an offence under this section by that person or by a person of any other such description;

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    (c) circumstances in which material is, or is not, to be taken for the purposes of the regulations to be published or (as the case may be) published by a person of any description so specified.

    (8) Where during the referendum period any material falling within subsection (1)(a) is published in contravention of subsection (1), then (subject to subsection (10))—

    (a) the promoter of the material,

    (b) any other person by whom the material is so published, and

    (c) the printer of the document,

    shall be guilty of an offence.
    (9) Where during the referendum period any material falling within subsection (1)(b) is published in contravention of subsection (1), then (subject to regulations made by virtue of subsection (7)(b) and to subsection (10))—

    (a) the promoter of the material, and

    (b) any other person by whom the material is so published,

    shall be guilty of an offence.
    (10) It shall be a defence for a person charged with an offence under this section to prove—

    (a) that the contravention of subsection (1) arose from circumstances beyond his control; and

    (b) that he took all reasonable steps, and exercised all due diligence, to ensure that that contravention would not arise.

    (11) In this section—

    "print" means print by whatever means, and "printer" shall be construed accordingly;

    "the promoter", in relation to any material falling within subsection (1), means the person causing the material to be published;

    "publish" means make available to the public at large, or any section of the public, in whatever form and by whatever means.").

    Clause 121 [Other publications to contain details of printer and publisher]:
    On Question, Whether Clause 121 shall stand part of the Bill?
    Clause 121 negatived.
    Clauses 122 and 123 agreed to.
    [Amendment No. 244 not moved.]
    Clause 124 [Orders regulating conduct of referendums]:
    [Amendments Nos. 245 and 246 not moved.]
    Clause 124 agreed to.
    Clause 125 [Control of donations to candidates]:
    Lord Bach Lord Bach moved Amendment No. 246A:
    Page 78, leave out lines 10 and 11 and insert—

  Control of donations to candidates.
  71A.—(1) In the case of any candidate at an election, any money or other property provided (whether as a gift or loan)—

  (a) by any person other than the candidate or his election agent, and

  (b) for the purpose of meeting election expenses incurred by or on behalf of the candidate,

  must be provided to the candidate or his election agent.
  (2) Subsection (1) above does not apply to any money or other property so provided for the purpose of meeting any such expenses which may be lawfully paid by a person other than the candidate, his election agent or any sub-agent (in the case of an election where sub-agents may be appointed).
  (3) A person who provides any money or other property in contravention of subsection (1) above shall be guilty of an illegal practice.
  (4) Schedule 2A to this Act shall have effect for the purpose of controlling donations to candidates.
  (5) In this section and that Schedule "property" includes any description of property, and references to the provision of property accordingly include the supply of goods."").
  The noble Lord said: This group of amendments relates to the control on donations made to candidates at parliamentary and local government elections. I intend to be short in my opening remarks.
  It may assist Members of the Committee if I say a few words about Clause 125 and Schedule 15, which are the targets of these amendments. The Representation of the People Act 1983 already requires that a return as to a candidate's election expenses includes a statement of all money, securities and the equivalent of money received by the election agent for the purpose of meeting election expenses. It is desirable that a candidate's return should include clearer information about the source and amount of donations equivalent to that which political parties, and other regulated donees, will be required to disclose. It is also right and proper that all candidates are subject to the prohibition on the acceptance of foreign donations.
  In placing these new requirements on candidates, we want to go with the grain of the 1983 Act. Under the Act, it is a candidate's election agent who has overall responsibility for ensuring compliance with the controls on the candidate's election expenses. It is the agent who, after the election, submits a return as to those expenses. It follows that it should be the election agent who is similarly held responsible for ensuring that any donations received by or on behalf of the candidate are from a permissible donor and that the relevant details of the donor are properly recorded. The key amendment in this group is Amendment No. 250B, which achieves just that.
  The effect of that amendment is as follows. Where a candidate has appointed an election agent, any donation that he receives should immediately be passed to the agent who will undertake the necessary checks. Where a candidate has either not yet appointed an agent or is acting as his own agent, it will obviously need to fall to him to undertake the required checks. I can deal with the other minor amendments in this group, if noble Lords wish to press me on them. But, in the meantime, I beg to move.
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 247:
  Page 78, line 14, leave out subsection (4).
  The noble Lord said: This group deals with government amendments as well as several tabled in my name. My object is to probe the Scottish position to determine the application of this Bill to local government elections in Scotland and to probe the position regarding the donations of money to candidates in local government elections in Scotland. It seems to me that there are no powers in the Bill for
  214
  Scottish Ministers to opt Scotland into this part of the legislation. Therefore, I wonder about the relationship between Scotland and parts of the Bill.
  I also wanted to probe the position of those convicted of offences in Scotland as regards holding public and judicial office. However, I believe that the government amendments address some of my concerns. I shall, therefore, leave the matter there and simply await the Minister's response. I beg to move.
  Lord Bach: This group of amendments relates to Part VIII of the Bill, which makes a number of amendments to the Representation of the People Act 1983. As drafted, the Bill provides that these changes should not apply in respect of local government elections in Scotland. The probing amendments tabled in the name of the noble Lord, Lord Mackay, would delete the provisions excepting Scottish local government elections from the scope of these changes.
  The scope of this Bill in relation to local government elections in Scotland has been addressed—dare I say it?—a number of times during its passage. Nevertheless, I must again make the point that the conduct of local government elections in Scotland is a devolved matter. Therefore, it will be for the Scottish Parliament to decide whether the changes made to the 1983 Act by Clauses 125 to 128 and Clause 131 should also apply in respect of local government elections there. The Bill as drafted reflects that position and, therefore, we urge the withdrawal of the probing amendments.
  However, consideration of these provisions in another place raised the question of whether such an exception should apply in the case of incapacities consequent upon conviction for a corrupt or illegal practice. On reflection, it is clear that the changes made by Clauses 129 and 130 are not confined to devolved matters. Whether a person convicted of a corrupt or illegal practice at a Scottish local government election, or reported guilty of such a practice by an election court, may be elected to the House of Commons or indeed vote in a local government election in Scotland is a reserved matter. In those circumstances, the incapacities effected by Clause 29 and paragraph 6 of Schedule 16 should apply and it is for this Parliament to apply them. Accordingly, as we have already indicated by putting our names to them, we support Amendments Nos. 257 and 258. I am grateful to the noble Lord for drafting them. Amendment No. 258B is consequential upon the removal of Clause 130(2).
  Those incapacities applied by Clause 129 and Schedule 16 would include the holding of elective office. However, the definition of "elective office" as inserted into the 1983 Act by paragraph 8 of Schedule 16, is confined to those offices to which a local government election is held in England and Wales. We need to continue to make provision for Scotland.
  Amendment No. 258C and Amendments Nos. 258E to 258G effectively plug that gap. They would specify that a person convicted or reported guilty of a corrupt or illegal practice would be prohibited from holding

  215
  local government, public or judicial office in Scotland for a specified period. I hope that the other amendments speak for themselves and that the noble Lord will be satisfied with my response.
  Lord Mackay of Ardbrecknish: I am indeed satisfied. When we come to them, I shall remember to move the amendments to which noble Lords have added their names. It is with some gratitude that one realises that one's drafting is not always imperfect. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 125, as amended, agreed to.
  Schedule 15 [Control of donations to candidates: New Schedule 2A to the Representation of the People Act 1983]:
  Lord Bach Lord Bach moved Amendment No. 247A:
  Page 158,1ine 2, leave out from ("donation") to end of line 4 and insert ("to the candidate or his election agent for the purpose of meeting election expenses incurred by or on behalf of the candidate").
  Lord Bach Lord Bach moved Amendment No. 247B:
  Page 158, line 4, at end insert—
  ("() In sub-paragraph (3) above the reference to a donation for the purpose of meeting election expenses incurred by or on behalf of a candidate includes a reference to a donation for the purpose of securing that any such expenses are not so incurred; and a donation shall be taken to be a donation for either of those purposes if, having regard to all the circumstances, it must be reasonably assumed to be such a donation.").

  The noble Lord said: This amendment has already been spoken to and debated on 12th October. I beg to move.
  Lord Bach Lord Bach moved Amendments Nos. 247C and 248:
  Page 158, line 5, after ("2") insert (", 2A").
  Page 158, line 7, at end insert—
  ("() Where—

  (a) at a time when any order is in force under section 65(1) of the 2000 Act a donation is received by a candidate at an election in Great Britain, and

  (b) the order provides for this sub-paragraph to apply to any such donation,

  references to a permissible donor falling within section 49(2) of that Act shall be construed, in relation to the donation, as not including a registered party which is registered in the Northern Ireland register maintained by the Commission under Part II of that Act.").
  Lord Bach Lord Bach moved Amendment No. 248A:
  Page 158, line 9, at end insert—

  ("(7) Any reference to a donation received by a candidate when he is (or is deemed to be) his own election agent includes a reference to a donation received by a candidate on a list of candidates to be London members of the London Assembly at an ordinary election who is, or is deemed to be, the election agent of all the candidates on the list.

  (8) Any donation which is received by a candidate as mentioned in sub-paragraph (7) above shall be regarded as received by him in his capacity as election agent.").

  Lord Bach Lord Bach moved Amendments Nos. 248B to 248P:
  Page 158, line 13, at end insert—
  ("(aa) any sponsorship provided in relation to the candidate (as defined by paragraph 2A below);").

  Page 158, line 14, leave out ("as permitted by section 73 above)") and insert ("by the candidate, his election agent or any sub-agent)").
  Page 158, line 15, leave out from ("by") to end of line 16 and insert ("or on behalf of the candidate;").
  Page 158, line 19, leave out ("goods,").
  Page 158, leave out line 22.
  Page 158, line 23, leave out sub-paragraph (2) and insert—

  ("(2) Where—

  (a) any money or other property is transferred to a candidate or his election agent pursuant to any transaction or arrangement involving the provision by or on behalf of the candidate of any property, services or facilities or other consideration of monetary value, and

  (b) the total value in monetary terms of the consideration so provided by or on behalf of the candidate is less than the value of the money or (as the case may be) the market value of the property transferred,

  the transfer of the money or property shall (subject to sub-paragraph (2B) below) constitute a gift to the candidate or (as the case may be) his election agent for the purposes of sub-paragraph (1)(a) above.

  (2A) In determining—

  (a) for the purposes of sub-paragraph (2)(c) above, whether any money lent to a candidate or his election agent is so lent otherwise than on commercial terms, or

  (b) for the purposes of sub-paragraph (2)(d) above, whether any property, services or facilities provided for the use or benefit of a candidate is or are so provided otherwise than on such terms,

  regard shall be had to the total value in monetary terms of the consideration provided by or on behalf of the candidate in respect of the loan or the provision of the property, services or facilities.

  (2B) Where (apart from this sub-paragraph) anything would be a donation both by virtue of sub-paragraph (1)(aa) above and by virtue of any other provision of this paragraph, sub-paragraph (1)(aa) (together with paragraph 2A below) shall apply in relation to it to the exclusion of the other provision of this paragraph.

  (2C) The reference in sub-paragraph (1)(b) above to money spent as mentioned in that provision is a reference to money so spent by a person, other than the candidate, his election agent or any sub-agent, out of his own resources (with no right to reimbursement out of the resources of any such other person.); and where, by virtue of sub-paragraph (1)(b) above, money so spent constitutes a donation to the candidate, the candidate shall he treated as receiving an equivalent amount on the date on which the money is paid to the creditor in respect of the expenses in question.").

  Page 158, line 31, at end insert—

  Sponsorship
  2A.—(1) For the purposes of this Schedule sponsorship is provided in relation to a candidate if—

  (a) any money or other property is transferred to the candidate or to any person for the benefit of the candidate, and

  (b) the purpose (or one of the purposes) of the transfer is (or must, having regard to all the circumstances, reasonably be assumed to be)—

  (i) to help the candidate with meeting, or to meet, to any extent any defined expenses incurred or to be incurred by or on behalf of the candidate, or

  (ii) to secure that to any extent any such expenses are not so incurred.

  (2) In sub-paragraph (1) above "defined expenses" means expenses in connection with—

  (a) any conference, meeting or other event organised by or on behalf of the candidate,

  (b) the preparation, production or dissemination of any publication by or on behalf of the candidate, or

  (c) any study or research organised by or on behalf of the candidate.

  (3) The following do not, however, constitute sponsorship by virtue of sub-paragraph (1) above—

  (a) the making of any payment in respect of—

  (i) any charge for admission to any conference, meeting or other event, or

  (ii) the purchase price of, or any other charge for access to, any publication;

  (b) the making of any payment in respect of the inclusion of an advertisement in any publication where the payment is made at the commercial rate payable for the inclusion of such an advertisement in any such publication.

  (4) The Secretary of State may by order made on the recommendation of the Commission amend sub-paragraph (2) or (3) above.
  (5) Any order under sub-paragraph (4) above shall be made by statutory instrument; but no such order shall be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.
  (6) In this paragraph "publication" means a publication made available in whatever form and by whatever means (whether or not to the public at large or any section of the public).").
  Page 158, line 45, after ("above") insert ("(other than money)").
  Page 159, line 1, at beginning insert ("the total value in monetary terms of").
  Page 159, line 2, at end insert—
  ("(2A) The value of any donation falling within paragraph 2(1)(aa) above shall be taken to be the value of the money, or (as the case may be) the market value of the property, transferred as mentioned in paragraph 2A(1) above; and accordingly any value in monetary terms of any benefit conferred on the person providing the sponsorship in question shall be disregarded.").

  Page 159, leave out lines 5 to 8 and insert—

  ("(a) the total value in monetary terms of the consideration that would have had to be provided by or on behalf of the candidate or his election agent in respect of the loan or the provision of the property, services or facilities if—

  (i) the loan had been made, or

  (ii) the property, services or facilities had been provided,

  on commercial terms, and

  (b) the total value in monetary terms of the consideration (if any) actually so provided by or on behalf of the candidate or his election agent").

  Page 159, line 9, leave out sub-paragraph (4).
  Page 159, line 13, leave out ("or (4)").
  [Amendments Nos. 249 and 250 not moved.]
  Lord Bach Lord Bach moved Amendments Nos. 250A and 250B:
  Page 160, line 27, leave out from ("to") to end of line 29 and insert—

  ("(a) a relevant donation received by a candidate or his election agent, and

  (b) the candidate or (as the case may be) the election agent,

  as they apply in relation to a donation received by a registered party and the registered party.").
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  Page 160, line 43, at end insert—

  Transfer of donations received by candidate to election agent
  6A.—(1) Sub-paragraph (2) below applies in relation to any relevant donation received by a candidate after the deadline for appointing an election agent (unless the candidate is, or is deemed to be, his own election agent at the time of receipt of the donation).
  (2) The candidate shall, on receipt of any such donation as is mentioned in sub-paragraph (1) above, forthwith deliver to his election agent—

  (a) the donation,

  (b) where paragraph 5(4) or (5) above applies in relation to the donation, the information provided to the candidate in pursuance of that provision, and

  (c) any other information which the candidate has about the donation and its donor which might reasonably be expected to assist the election agent in the discharge of any duties imposed on him, in relation to the donation, under this Part or Part III of this Schedule.

  (3) Where a donation is delivered to an election agent in accordance with sub-paragraph (2) above, the donation shall be treated for the purposes of paragraph 5(1) to (3) above and the provisions applied by paragraph 6 above as if it had been—

  (a) originally received by the election agent, and

  (b) so received by him on the date on which it was received by the candidate.

  (4) Where a candidate receives a relevant donation before the deadline for appointing an election agent but at a time when an appointment of a person (other than the candidate himself) as election agent is in force he shall either—

  (a) forthwith deliver the donation and the information mentioned in sub-paragraph (2)(b) and (c) above to the agent, or

  (b) (if he fails to do so) deal with the donation in accordance with section 51 of the 2000 Act.

  (5) Sub-paragraph (3) above shall have effect in relation to any relevant donation delivered to an election agent in accordance with sub-paragraph (4)(a) above as it has effect in relation to a donation delivered to him in accordance with sub-paragraph (2) above.
  (6) Sub-paragraph (7) below applies where—

  (a) a relevant donation received by a candidate before the deadline for appointing an election agent has been dealt with by the candidate in accordance with section 51 of the 2000 Act either because—

  (i) it was received by him at a time when no appointment of another person as his election agent was in force, or

  (ii) although such an appointment was in force, he was by virtue of sub-paragraph (4)(b) required to deal with the donation; and

  (b) an appointment of a person (other than the candidate himself) as election agent is in force at, or at any time after—

  (i) the deadline for appointing an election agent, or

  (ii) if later, the time when the candidate has dealt with the donation in accordance with section 51 of the 2000 Act.

  (7) Subject to sub-paragraph (9) below, the candidate shall, as soon as reasonably practicable after the relevant time, deliver to the election agent—

  (a) the donation (if it has been accepted by him), and

  (b) any information which he has about the donation and the donor which might reasonably be expected to assist the election agent in the discharge of any duties imposed on him, in relation to the donation, under Part III of this Schedule.

  (8) The relevant time for the purposes of sub-paragraph (7) above is—

  (a) the time mentioned in sub-paragraph (6)(b)(i) or (ii) (as the case may be) if the appointment of another person as election agent is in force at that time, or

  (b) otherwise, the time when any such appointment subsequently comes into force.

  (9) The duty imposed on a candidate by sub-paragraph (7)(a) above does not apply to any relevant donation to the extent to which it has been lawfully used by the candidate for the purpose of paying election expenses.
  (10) In this paragraph—

  (a) any reference to the deadline for appointing an election agent is a reference to the latest time by which an election agent may in accordance with section 67(1) or (1A) of this Act be named as election agent—

  (i) by the candidate, or

  (ii) in the case of a candidate on a list of candidates submitted by a registered political party to be London members of the London Assembly at an ordinary election, by the party; and

  (b) any reference to any provision of section 51 of the 2000 Act is a reference to that provision as applied by paragraph 6 above.").

  7.15 p.m.
  Lord Bach Lord Bach moved Amendments Nos. 250C to 250E:
  Page 160, line 47, leave out ("or to the treasurer of a registered party").
  Page 160, line 49, at end insert ("; and
  (c) any reference in subsection (2) to the treasurer of a registered party were, in relation to a relevant donation, a reference to either the candidate or his election agent (or both).").

  Page 161, line 5, leave out ("prepared") and insert ("delivered").
  Schedule 15, as amended, agreed to.
  Lord Bach Lord Bach moved Amendment No. 250F:
  Before Clause 126, insert the following new clause—

  Transfer of donations received by candidate to election agent

    ELECTION EXPENSES INCURRED OTHERWISE THAN BY CANDIDATE
    (".—(1) Section 75 of the Representation of the People Act 1983 (no election expenses to be incurred by persons other than candidate, election agent or persons authorised by him) shall be amended as follows.
    (2) In subsection (1)(ii) (exception for expenses not exceeding £5 in aggregate incurred by individual backer or disparager), for "not exceeding in the aggregate the sum of £5 which may be incurred by an individual and are not incurred in pursuance of a plan suggested by or concerted with others," there shall be substituted "incurred by any person which do not exceed in the aggregate the permitted sum (and are not incurred by that person as part of a concerted plan of action),".
    (3) After subsection (1) there shall be inserted—
    "(1ZA) For the purposes of subsection (1)(ii) above, "the permitted sum" means—

    (a) in respect of a candidate at a parliamentary election, £500;

    (b) in respect of a candidate at a local government election, £50 together with an additional 0.5p for every entry in the register of local government electors for the electoral area in question as it has effect on the last day for publication of notice of the election;

    220
    and expenses shall be regarded as incurred by a person "as part of a concerted plan of action" if they are incurred by that person in pursuance of any plan or other arrangement whereby that person and one or more other persons are to incur, with a view to promoting or procuring the election of the same candidate, expenses which (disregarding subsection (1)(ii)) fall within subsection (1) above."
    (4) At the end of subsection (1A) there shall be added "; and in the application of subsection (1ZA) above in relation to such an election the reference to the same candidate includes a reference to all or any of the candidates of the same registered political party."
    (5) Subsections (1B) and (1C) (special provision for Greater London Authority elections) shall be omitted.").
    The noble Lord said: In moving this amendment, I speak also to Amendments Nos. 252A, 259N, 322D and 322N. Amendment No. 250F is an important addition to the Bill. It amends Section 75 of the Representation of the People Act 1983, which is concerned with election expenditure by persons other than a candidate or an election agent—that is, expenditure by third parties. Under the provisions of Section 75 as it stands, a third party may spend no more than £5 either promoting or denigrating a candidate at an election.
    The £5 limitation on third party expenditure has been held by the European Court of Human Rights, in the case of Bowman v the United Kingdom to be tantamount to a total ban and as such constituted an unjustifiable restriction on a person's right to freedom of expression. I could tell the Committee the facts of that case, but I am not going to unless I am specifically asked to do so. It was not the principle of the limit that offended against Article 10, but the particular limit of £5.
    The Neill committee considered at some length the implications of the judgment. I shall quote part of paragraph 10.64 of the report which states,
    "We suggest for consideration by the Government that the amended figure to be inserted in section 75(1)(ii) should be more than £100 and should be of the order of £500. We believe that this would provide an allowance sufficient to cover, for example, the production and distribution of a leaflet throughout a constituency or the publication of an advertisement in a local newspaper".
    In its recommendation no. 54, the committee came down even more firmly in favour of a third party limit of £500. Accordingly, we have adopted that figure for parliamentary elections. We believe that it is too high for local government elections. New subsection (1ZA) of Section 75 therefore provides that for such elections the limit shall be £50 together with an additional 0.5 pence for every elector. This formula will result in limits for local government elections ranging from about £51 for the smallest ward which is in Chiltern District Council, having fewer than 200 electors, to £180 for the largest ward with over 25,000 electors. That is the Mossborough ward in Sheffield.
    I can deal with the details as regards the Greater London Authority Act 1999. By removing the two subsections, the general formula of £50 plus 0.5 pence per elector will apply instead of the present subsections. That would produce a limit for London mayoral elections of about £25,000 which was in fact the figure that applied to the first mayoral election in May of this year.
    I should emphasise that it would continue to be an offence for a third party to incur election expenses as part of a concerted plan of action with others. The new limits on third party expenditure would be undermined if a number of individuals or organisations in a constituency could each pool their £500 in order to achieve the required result. Such concerted action could well distort the electoral process.
    With the agreement of the Scottish Executive and Parliament, the revised limits will apply to local government elections in Scotland as well as to those in England and Wales. Ordinarily, it would be a matter for the Scottish Parliament to legislate in respect of the third party limit for local government elections in that country. The Scottish Parliament has agreed that, exceptionally, it would be appropriate for the UK Parliament to legislate in respect of this devolved matter given the need to make Section 75 ECHR compliant as soon as possible.
    I turn to the second proposed new clause in the group (Amendment No. 252A). This would amend Section 76A of the 1983 Act. Section 76A enables the Secretary of State by statutory instrument to vary the various monetary limits relating to election expenses set out in the 1983 Act, but such variations may only be to the extent necessary to take account of changes in the value of money; in other words, to keep pace with inflation. From time to time more significant variation may be justified; the £5 limit in Section 75 being a case in point. The revised Section 76A will enable above inflation increases, or indeed reductions, in the monetary limits to be made on the recommendation of the electoral commission. A similar approach is adopted in Clause 145 in respect of the various monetary limits set out in the Bill and fits in with the wider role of the electoral commission in keeping electoral law under review.
    The other amendments in this group are essentially consequential. I beg to move.
    Baroness Gould of Potternewton: I very much welcome the proposed new clause. On Second Reading some of us expressed concern that the draft Bill contained such a clause but that it was omitted from the final Bill. At that time the Minister indicated that the Government would bring forward such a measure. Since Second Reading enormous amounts of money have been spent in the Ayr by-election and £1 million on the referendum in Scotland on Section 28. The proposed new clause is therefore particularly important. We should not deny the right of people to intervene in elections or referendums, even if we sometimes do not agree with what they say. They have the democratic right to intervene. I believe that the balance of £500 is about right, provided that we address the problems of abuse, as the Bill does. It is absolutely essential that there is no possibility of a large number of people each adding their permitted expenditure to a common pot. As that objective has been achieved, I am sure that we shall all welcome the proposed new clause.
    Clause 126 [Financial limits applying to candidates' election expenses]:
    Lord Bach Lord Bach moved Amendment No. 250G:
    Page 78, leave out lines 21 to 24 and insert ("or on behalf of a candidate at an election").
    The noble Lord said: This group contains 28 government amendments. I know that the Committee will have studied each one with some care. Therefore, I do not intend to go through each one, or, indeed any of them, but to tell the Committee what their effects are.
    This group of amendments makes a number of changes to the Representation of the People Acts 1983 and 2000. They are in large part concerned with the regulation of candidates' election expenses and essentially they simply follow on from the existing provisions of the Bill. If any Member of the Committee has any specific questions on any of the amendments, I shall be happy to try to answer them. I beg to move.
    Lord Mackay of Ardbrecknish: The noble Lord will be delighted to hear that I do not intend to quiz him on each amendment. However, someone has drawn my attention to a problem which may arise as a result of some of the proposed changes. However, I shall wait until I see them in the reprinted Bill. Then I may either mention them or write to the noble Lord.
    On Question, amendment agreed to.
    Lord Bach Lord Bach moved Amendment No. 250H:
    Page 78, line 31, leave out from ("by") to ("must") in line 33 and insert ("or on behalf of any of those candidates").
    Lord Rennard Lord Rennard moved Amendment No. 251:
    Page 79, line 6, leave out ("£100,000") and insert ("£75,000").
    The noble Lord said: This amendment seeks to reduce the limit proposed for spending in parliamentary by-elections from £100,000 to £75,000. The proposed limit of £100,000 originated in the committee chaired by the noble Lord, Lord Neill. I understand that the proposal was based on a BBC report of Mr Michael Crick who said that there was convincing evidence of overspending by major parties in parliamentary by-elections and that sums approaching £100,000 might have been spent by some parties in by-elections immediately prior to the previous general election campaign.
    However, it seems to me that political parties have been treating the issue of spending limits in parliamentary by-elections rather as some motorists treat speeding limits. However, if traffic is regularly spotted travelling at 50 miles per hour in a 30-mph zone, on the basis of the kind of proposal put forward in the Bill, the response would be to introduce a 100-mph speed limit to ensure that no one breached it. I believe that such a measure would be excessive.
    A limit of £75,000 in parliamentary by-elections seems sufficient to me. I believe that I can substantiate that as that figure is more than twice the sum spent by the Liberal Democrats in winning the Romsey

    223
    parliamentary by-election in May of this year. A £100,000 constituency limit in a parliamentary by-election, compared with the £8,000 or so constituency limit in a general election, is just too great a gulf to justify with the argument that by-elections are national campaigns. It would be somewhat perplexing for the electorate to have a parliamentary by-election, in which perhaps £100,000 is spent by each of the parties, and then a few weeks later a general election campaign in the same constituency in which only about £8,000 can be spent by each of the parties.
    As regards the £100,000 limit proposed for constituencies, if one were to aggregate it for all the constituencies across the UK, it would amount to a general election expense limit of between £64 million and £65 million. That is far in excess of the £20 million limit proposed for general election expenditure by the Neill committee. Why, then, is the £100,000 limit proposed? The Minister in another place, Mr Paddy Tipping, said,
    "If we are honest, there is no real rationale. One simply has to take a stab at the matter and I invite my honourable friends to take a stab at what is in the Bill".
    As the noble Lord, Lord Bach, has pointed out on many occasions during the Committee stage of the Bill, we are a revising Chamber. Let us therefore suggest that this total be revised and invite the Government to take a further stab at the matter. In due course the electoral commission may make recommendations, but there may be important parliamentary by-elections before it has time to consider the matter. Let us consider doubling the existing limits before we consider trebling them. I beg to move.
    Lord Mackay of Ardbrecknish: I drag myself to my feet on this issue simply to congratulate the Liberal Front Bench on breaking a vow of silence that I thought was turning them into Trappist monks. As regards being a revising Chamber, it is a good job that the revising Chamber is not dependent on Liberal Democrat intervention on this Bill as we would be doing little revision. I look forward to hearing the Minister's comments on the amendment.
    Lord Bassam of Brighton: The Minister has little to say except to acknowledge that the Bill as drafted gives effect to one of the Neill committee's recommendations. The Government wish to adhere to the figure proposed by the Neill committee. If there were cross-party consensus on the proposition of the noble Lord, Lord Rennard, we might reconsider our view. However, as the noble Lord has recognised, this matter may be reviewed by the commission. At this stage we resist the amendment and stick with what we have.
    Lord Rennard: I thank the Minister for those comments. I note that the electoral commission may consider the matter. I believe that it should, given the wide disparity between the sum of £8,000 in regard to a general election and the sum of £ 100,000 in regard to
    224
    a parliamentary by-election. I hope that the electoral commission will consider the matter seriously. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendment No. 252 not moved.]
    Clause 126, as amended, agreed to.
    7.30 p.m.
    Lord Bach Lord Bach moved Amendment No. 252A:
    After Clause 126, insert the following new clause—

    POWER TO VARY PROVISIONS ABOUT ELECTION EXPENSES
    (".—(1) For section 76A of the Representation of the People Act 1983 there shall be substituted—

  Power to vary provisions about election expenses.
  76A.—(1) The Secretary of State may by order made by statutory instrument vary any of the sums to which this section applies—

  (a) where he considers that the variation is expedient in consequence of changes in the value of money, or

  (b) in order to give effect to a recommendation of the Electoral Commission.

  (2) This section applies to any of the sums for the time being specified in—

  (a) section 73(2) above;

  (b) section 74(1)(a), (b), (c) or (d) above;

  (c) section 75(1ZA) above; or

  (d) section 76(2) above.

  (3) An order under subsection (1)(19) above shall be subject to annulment in pursuance of a resolution of either House of Parliament."
  (2) Section 76A of that Act, as substituted by subsection (1) above, shall be taken to be a pre-commencement enactment for the purposes of the Scotland Act 1998.").
  Lord Carter: It may be helpful if I tell the Committee the plans for this evening. It has been agreed through the usual channels that there should not be a dinner break and that there should be every intention to complete the Committee stage of this Bill by 9 p m. to allow us to make some progress on the FoI Bill.
  Clause 127 [Meaning of "election expenses"]:
  Lord Bach Lord Bach moved Amendment No. 252B:
  Page 79, line 40, leave out ("expenses which") and insert ("facilities in respect of which expenses").
  The noble Lord said: There is little to say about the amendment save that it tidies up the drafting of new Section 90A(3)(c) of the Representation of the People Act 1983.
  The amendment in the name of the noble Lord, Lord Mackay, has rather more substance to it. If the noble Lord wishes to speak to his amendment now, I shall attempt to reply to it.
  Lord Mackay of Ardbrecknish: I speak to Amendment No. 253 which is grouped with the government amendment. It seeks to replace £50 with £100. We are discussing here the amount of election expenditure which can be incurred by a candidate or his agent without the need for receipts and invoices

  225
  and all the regulations which go with that. Prior to the drafting of the Bill, the limit in the Representation of the People Act was £20. The Government have increased that to £50; and that is welcome.
  My reason for raising the limit to £100 is that it would bring it into line with the receipts and invoices mentioned in Clause 71(2): that is, in line with the requirements for expenditure incurred on behalf of the party as a whole, not the constituency party, for election purposes. I suggest that it makes for consistency of approach. It might be helpful to the parties, the candidates and others involved to be able to remember the one figure of £100 rather than that £100 counts for national and £50 for constituency election expenses.
  Lord Bach: I am grateful to the noble Lord. His amendment would increase the figure to £100. We have shown some flexibility. The figure in the Bill as originally introduced in another place was £20. This was in line with the threshold in the 1983 Act above which election expenses must be vouched for by an invoice and a receipt. The figure was raised to £50 by a government amendment on Report in another place. This brought the figure into line with the de minimis limit in relation to donations to candidates. In raising the figure we were receptive to concerns that the original figure was too low and risked catching benefits in kind in circumstances such as giving a candidate a lift to a meeting where it would occur to no one that notional expenditure was in fact being incurred.
  We are not inclined to agree that the figure should be raised any further. The equivalent figure in relation to notional election expenses incurred by political parties is £200. But that is against a spending limit of up to nearly £20 million. The average spending limit for a parliamentary candidate is some £8,000. In this context benefits in kind to the value of £50 or more are sufficiently significant to warrant being declared. During Committee stage in another place the Official Opposition put forward an amendment similar to this one but suggested—I remind the noble Lord of this in the most gentle of spirits—that £50 would be a suitable compromise. I hope that he may agree.
  Lord Mackay of Ardbrecknish: I am content with that explanation. My honourable friends in another place did what the Minister suggests. I sought to consider the Bill as a whole. I accept the explanation.
  On Question, amendment agreed to.
  Lord Bach Lord Bach moved Amendments Nos. 252C to 252E:
  Page 80, line 4, at end insert—
  ("(4A) For the purposes of this Part of this Act—

  (a) election expenses are incurred by or on behalf of a candidate at an election if they are incurred—

  (i) by the candidate or his election agent, or

  (ii) by any person authorised by the candidate or his election agent to incur the expenses; and

  226

  (b) any reference to election expenses incurred by or on behalf of a candidate at an election includes expenses which are incurred as mentioned in paragraph (a)(i) or (ii) above before the date when he becomes a candidate at the election but which by virtue of subsection (1) and (2) above fall to be regarded as election expenses.").

  Page 80, line 5, after ("reference") insert ("(in whatever terms)").
  Page 80, line 24, leave out from beginning to end of line 9 on page 81 and insert—

  Property, goods, services etc. provided free of charge or at a discount.
  90C.—(1) This section applies where, in the case of a candidate at an election—

  (a) either—

  (i) property or goods is or are transferred to the candidate or his election agent free of charge or at a discount of more than 10 per cent. of the market value of the property or goods, or

  (ii) property, goods, services or facilities is or are provided for the use or benefit of the candidate free of charge or at a discount of more than 10 per cent. of the commercial rate for the use of the property or for the provision of the goods, services or facilities, and

  (b) the property, goods, services or facilities is or are made use of by or on behalf of the candidate in circumstances such that, if any expenses were to be (or are) actually incurred by or on behalf of the candidate in respect of that use, they would be (or are) election expenses incurred by or on behalf of the candidate.

  (1A) Where this section applies—

  (a) an amount of election expenses determined in accordance with this section ("the appropriate amount") shall be treated, for the purposes of this Part of this Act, as incurred by the candidate, and

  (b) the candidate's election agent shall make a declaration of that amount,

  unless that amount is less than £50.
  This subsection has effect subject to section 90A(3) above.
  (1B) Where subsection (1)(a)(i) above applies, the appropriate amount is such proportion of either—

  (a) the market value of the property or goods (where the property or goods is or are transferred free of charge), or

  (b) the difference between the market value of the property or goods and the amount of expenses actually incurred by or on behalf of the candidate in respect of the property or goods (where the property or goods is or are transferred at a discount),

  as is reasonably attributable to the use made of the property or goods as mentioned in subsection (1)(b) above.
  (1C) Where subsection (1)(a)(ii) above applies, the appropriate amount is such proportion of either—

  (a) the commercial rate for the use of the property or the provision of the goods, services or facilities (where the property, goods, services or facilities is or are provided free of charge), or

  (b) the difference between that commercial rate and the amount of expenses actually incurred by or on behalf of the candidate in respect of the use of the property or the provision of the services or facilities (where the property, goods, services or facilities is or are provided at a discount),

  as is reasonably attributable to the use made of the property, goods, services or facilities as mentioned in subsection (1)(b) above.").
  The noble Lord said: These amendments were spoken to with Amendment No. 195D. I beg to move.
  [Amendment No. 253 not moved.]
  Lord Bach Lord Bach moved Amendments Nos. 253A to 235F:
  Page 81, line 11, after ("use") insert ("or benefit").
  Page 81, leave out lines 19 to 26.
  Page 81, line 28, after ("property") insert ("or goods").
  Page 81, line 29, after ("property") insert ("or goods").
  Page 81, line 30, at end insert ("; and paragraph 2(3)(a) of Schedule 2A to this Act shall apply with any necessary modifications for the purpose of determining, for the purposes of subsection (1) above, whether property or goods is or are transferred to a candidate or his election agent."").
  Page 81, line 30, at end insert—

  Modification of sections 90A to 90C in relation to election of London members of the London Assembly.
  90D.—(1) Sections 90A to 90C above shall have effect, in their application in relation to candidates at an election of London members of the London Assembly at an ordinary election, subject to the following modifications.
  (2) In relation to any such candidates included in a list of candidates submitted by a registered political party in connection with the election—

  (a) references to anything done by or on behalf of, or in relation to, a candidate at the election shall be construed as a reference to any such thing done by or on behalf of, or in relation to, all or any of the candidates on the list; and

  (b) "for the purposes of the candidate's election" shall (instead of having the meaning given by section 90A(4) above) be construed as meaning with a view to, or otherwise in connection with promoting or procuring electoral success for the party, that is to say, the return at the election of all or any of the candidates on the list.

  (3) Section 90A above shall have effect with the substitution of the following subsection for subsection (5)—
  "(5) In this Part, and in Part III of this Act, any reference (in whatever form) to promoting or procuring a candidate's election at an election, or to promoting or procuring electoral success for a party, includes doing so by prejudicing the electoral prospects of other candidates or parties at the election."." ").
  The noble Lord said: These amendments have all been previously spoken to with Amendment No. 195D. I beg to move.
  Clause 127, as amended, agreed to.
  Clause 128 [Meaning of "candidate"]:
  Lord Bach Lord Bach moved Amendment No. 253G:
  Page 81, leave out lines 36 to 47 and insert—
  ("""candidate" shall be construed in accordance with section 118A below;".

  () After section 118 of that Act there shall be inserted—

  Meaning of candidate.
  118A.—(1) References to a candidate in this Part of this Act shall be construed in accordance with this section (except where the context otherwise requires).
  (2) A person becomes a candidate at a parliamentary election—

  (a) on the date of—

  (i) the dissolution of Parliament, or

  (ii) in the case of a by-election, the occurrence of the vacancy,

  228
  in consequence of which the writ for the election is issued if on or before that date he is declared by himself or by others to be a candidate at the election, and

  (b) otherwise, on the day on which he is so declared by himself or others or on which he is nominated as a candidate at the election (whichever is the earlier).

  (3) A person becomes a candidate at an election under the local government Act—

  (a) on the last day for publication of notice of the election if on or before that day he is declared by himself or by others to be a candidate at the election, and

  (b) otherwise, on the day on which he is so declared by himself or by others or on which he is nominated as a candidate at the election (whichever is the earlier),

  or, in the case of a person included in a list of candidates submitted by a registered political party in connection with an election of the London members of the London Assembly at an ordinary election, on the day on which the list is submitted by the party."").
  The noble Lord said: In moving the amendment, I speak to Amendment No. 256A and opposition Amendments Nos. 254 and 255.
  Clause 128 amends the definition of a "candidate" in Section 118 of the 1983 Act. The definition of a candidate is relevant to determining, among other things, the date from which the restrictions on incurring election expenses apply.
  The new definition as set out in the Bill makes two substantive changes. First, in relation to the definition of both a parliamentary and local government candidate, the reference to a candidate who is elected is omitted. This will ensure that sitting MPs and councillors are treated on an equal footing with other candidates. The second change is that the definition of a local government candidate now includes a starting time for a person's candidature; namely, the last day for the publication of the notice of election—that is, 25 working days before the date of the election.
  However, we believe that a further refinement to the definition of a candidate is needed. The definition as set out both in the existing Section 118 of the 1983 Act and in that section as amended by Clause 128 provides that a person becomes a parliamentary candidate either when he is nominated as a candidate or when he is declared by himself or by others to be a candidate following the issue of the writ or following dissolution, whichever is the earlier. But what about a person who declares himself to be a candidate before the date of the dissolution? As the definition stands, such a person would be deemed to be a candidate only from the date of his formal nomination whereas he ought to be treated as a candidate with effect from the date of the dissolution. Amendment No. 253G makes this adjustment to the definition.
  The new Section 118A of the 1983 Act also incorporates a modification to the definition of a local government candidate to fit the circumstances of the election of the London members of the GLA. Amendment No. 256A makes a consequential drafting change.
  Opposition Amendments Nos. 254 and 255 would restrict the definition of a candidate to a person nominated as a candidate. This has the advantage of simplicity but at the price, we think, of weakening the controls on candidates' election expenses. The amendments could have the effect of reducing the period during which the limits on a candidate's expenses would apply. Clearly the more a person can spend on his election campaign before he formally becomes a candidate the less he will be constrained by the expenditure limits. In the case of a by-election, a declared candidate could spend freely on his campaign for some three months following the occurrence of the vacancy and be bound by the expenditure controls on nominated candidates only in the final two weeks before the date of the poll. We do not think that that is the right approach. I hope that the noble Lord will not press the amendment.
  Lord Mackay of Ardbrecknish: I have tabled two amendments in this group. As the Minister rightly said, they delete the new words which have appeared. I understood what the noble Lord said and why these words appear. I understand the argument if someone who has been declared by his party as the candidate starts to spend money.
  My other worry is the use of the words,
  "is declared by others to be a candidate"
  and what we mean by "others". Perhaps I may give an example although it may be slightly flippant. Let us say that in an election people know that the noble Lord, Lord Bassam of Brighton, is likely to be the Labour candidate. He cannot be now but let us allow a little fiction. Let us say that the party believes in some underhand methods of electioneering—I shall not name them; it could say, "We are the others and we declare Lord Bassam will be the Labour Party candidate", and his expenses clock then starts ticking. That is a possibility as the Bill stands and perhaps we should look at it to prevent unfair tactics being used by opponents—or by the candidate whom the noble Lord has beaten in the selection process.
  Lord Bach: Perhaps I may make an arrangement with the noble Lord; I do not want to call it a deal. If he withdraws his amendments, I promise to look at the point that he has raised.
  Lord Mackay of Ardbrecknish: I am happy to do that.
  [Amendments Nos. 254 to 256 not moved.]
  Lord Bach Lord Bach moved Amendment No. 256A:
  Page 82, line 1, leave out ("amendment made by this section does") and insert ("amendments made by this section do").
  Clause 128, as amended, agreed to.
  Clause 129 [Corrupt and illegal practices: consequences for persons convicted of such practices]:
  Lord Bach Lord Bach moved Amendment No. 256B:
  Page 83, line 42, at end insert—

  Incapacity to hold public or judicial office in Scotland.
  173A.—(1) Subject to section 174 below, a person convicted of a corrupt practice—

  (a) shall for the period of five years beginning with the date of his conviction, be incapable of holding any public or judicial office in Scotland, and

  (b) if already holding such an office, shall vacate it as from that date.

  (2) Subsection (1) above applies in addition to—

  (a) any incapacity or other requirement applying to the person by virtue of section 173 above, and

  (b) any punishment imposed on him under section 168 above."").

  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 257:
  Page 83, line 43, leave out subsection (2).
  Clause 129, as amended, agreed to.
  Clause 130 [orrupt and illegal practices: election petitions etc]:
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 258:
  Page 84, line 4, leave out subsection (2).
  The noble Lord said: With the agreement of the noble Lord, Lord Bassam, I beg to move.
  Clause 130, as amended, agreed to.
  Schedule 16 [Amendments relating to election petitions]:
  Lord Bach Lord Bach moved Amendments Nos. 258A to 258G:
  Page 162, line 9, at end insert—
  (".—(1) For section 137 there shall be substituted—

  Petition at issue.
  137.—(1) The petition shall be at issue as from the relevant time, as defined by subsection (2) below.
  (2) In this section "the relevant time" means—

  (a) where the petitioner gives the security for costs required by section 136 above by a deposit of money equal to the amount of the security so required, the time when the security is so given; and

  (b) in any other case, the time when—

  (i) the time prescribed for the making of objections under section 136(4) above expires, or

  (ii) if such an objection is made, that objection is disallowed or removed,

  whichever happens later."

  (2) The amendment made by sub-paragraph (1) does not have effect in relation to election petitions in respect of local government elections in Scotland.
  . In section 138(1) (list of petitions) the words from ", a copy of which" onwards shall be omitted.").

  231
  Page 162, line 10, at end insert—
  ("(2) The repeals made by sub-paragraph (1) do not have effect in relation to election petitions in respect of local government elections in Scotland.").
  Page 162, line 14, leave out paragraph 5 and insert—
  (". In section 159 (candidate reported guilty of corrupt or illegal practice) —

  (a) subsection (2) shall be omitted, and

  (b) for subsection (3) there shall be substituted—

  "(3) A candidate at a local government election in Scotland who is reported personally guilty or guilty by his agents of any corrupt or illegal practice shall also be incapable from the date of the report of holding the office of councillor of any local authority in Scotland—

  (a) for ten years, if reported personally guilty of a corrupt practice,

  (b) for three years, if reported guilty by his agents of a corrupt practice, or

  (c) during the period for which the candidate was elected to serve or for which if elected he might have served, if reported personally guilty or guilty by his agents of an illegal practice,

  and if at the date of the report he holds any such office, then the office shall be vacated as from that date." ").
  Page 162, line 29, at end insert ("as from the date of the report").
  Page 162, line 35, at end insert—
  ("(5A) Subject to the provisions of section 174 but in addition to any incapacity arising by virtue of subsection (4) above, a candidate or other person reported by an election court personally guilty of a corrupt practice—

  (a) shall for the period of five years beginning with the date of the report, be incapable of holding any public or judicial office in Scotland, and

  (b) if already holding such an office, shall vacate it as from that date.").

  Page 162, line 38, at end insert ("or to any public office in Scotland"").
  Page 162, leave out line 44 and insert—
  ("(b) in the definition of "public office" for " "public office" means any office—" substitute " "public office" in relation to Scotland means any office held in Scotland—".").

  Schedule 16, as amended, agreed to.
  Clause 131 [Election campaigns and proceedings: miscellaneous amendments]:
  [Amendment No. 259 not moved.]
  Clause 131 agreed to.
  Schedule 17 [Election campaigns and proceedings: miscellaneous amendments]:
  Lord Bach: moved Amendments Nos. 259A to 259V
  Page 163, line 6, at end insert—

  Payment of election expenses
  2A.—(1) Section 73 (payment of expenses through election agent) shall be amended as follows.
  (2) For subsection (1) there shall be substituted—
  "(1) Subject to subsection (5) below, no payment (of whatever nature) shall be made by—

  (a) a candidate at an election, or

  (b) any other person,

  in respect of election expenses incurred by or on behalf of the candidate unless it is made by or through the candidate's election agent."
  (3) Subsection (4) shall be omitted.
  (4) For subsection (5) there shall be substituted—
  "(5) This section does not apply to—

  (a) any expenses which are, in accordance with section 74(1) or (1B), 78(5) or 79(2) below, paid by the candidate;

  (b) any expenses which are paid in accordance with section 74(3) below by a person authorised as mentioned in that provision;

  (c) any expenses included in a declaration made by the election agent under section 74A below; or

  (d) any expenses which are to be regarded as incurred by or on behalf of the candidate by virtue of section 90A(4A)(b) below."

  (5) In subsection (6)—

  (a) for "any payment, advance or deposit" there shall be substituted "any payment (of whatever nature)"; and

  (b) the words from ", or pays" to "as mentioned above," shall be omitted."

  2B.—(1) Section 74 (candidate's personal expenses, and petty expenses) shall be amended as follows.
  (2) For the sidenote there shall be substituted "Expenses which may be paid otherwise than by election agent."
  (3) After subsection (1A) there shall be inserted—
  "(1B) The candidate at an election may also pay any election expenses (other than expenses falling within subsection (1) above) which were incurred by him or on his behalf and in respect of which payment falls to be made before the date on which he appoints (or is deemed to have appointed) an election agent."
  (4) In subsection (2), for "personal expenses paid as mentioned above" there shall be substituted "expenses paid as mentioned in subsection (1) or (1B) above".
  (5) After subsection (4) there shall be inserted—
  "(5) Sections 78 and 79 below do not apply to expenses which, in accordance with any provision of this section, are paid otherwise than by the candidate's election agent."
  2C. After section 74 there shall be inserted—

  Expenses incurred otherwise than for election purposes.
  74A.—(1) Neither section 73 above nor sections 78 and 79 below shall apply to election expenses—

  (a) which are incurred by or on behalf of a candidate otherwise than for the purposes of the candidate's election, but

  (b) which by virtue of section 90A(1) below fall to be regarded as election expenses by reason of the property, services or facilities in respect of which they were incurred being used for the purposes of the candidate's election.

  (2) The candidate's election agent shall make a declaration of the amount (determined in accordance with section 90B below) of any election expenses falling within subsection (1) above.
  (3) In this section "for the purposes of the candidate's election" has the same meaning as in sections 90A to 90C below."
  2D.—(1) Section 78 (time for sending in and paying claims) shall be amended as follows.
  (2) In subsections (1) and (2) for "within" wherever it occurs there shall be substituted "not later than".").
  Page 163, line 9, leave out sub-paragraph (2) and insert —
  ("(2) In subsection (1) for the words from "in the form" onwards there shall be substituted "containing as respects that candidate—

  (a) a statement of all election expenses incurred by or on behalf of the candidate; and

  233

  (b) a statement of all payments made by the election agent together with all bills and receipts relating to the payments." ").

  Page 163, line 18, after ("(3)") insert—

  ("(a) for paragraph (a) there shall be substituted—

  "(a) a statement of all payments made—

  (i) by the candidate in accordance with section 74(1) or (1B) above, or

  (ii) by any other person in accordance with section 74(3) above,

  together with all bills and receipts relating to any such payments made in accordance with section 74(1B) or 74(3);", and.

  (b)")

  Page 163, line 20, leave out ("90C(3)") and insert ("74A(2) above or 90C(1A)").
  Page 163, line 20, at end insert—
  ("(da) a declaration of the amount of expenses which are to be regarded as election expenses incurred by or on behalf of the candidate by virtue of section 90A(4A)(b) below;").

  Page 163, line 23, at end insert ("; and
  ("(f) a statement of the amount, if any, of money provided by the candidate from his own resources for the purpose of meeting election expenses incurred by him or on his behalf." ").

  Page 163, line 23, at end insert—
  ("() Subsection (4) shall be omitted.").
  Page 163, line 23, at end insert—
  ("() In subsection (7), the words from "; and" onwards shall be omitted.").
  Page 163, line 24, leave out from ("subsection") to ("The") in line 25 and insert ("(10) there shall be inserted—
  "(10A)").
  Page 163, line 26, leave out second ("the") and insert ("any (or any description of)").
  Page 163, line 27, at end insert—
  ("() Subsection (11) shall be omitted.").
  Page 163, line 36, leave out (", and any accompanying documents, to the Electoral Commission") and insert ("to the Electoral Commission and, if so requested by the Commission, he shall also deliver to them a copy of any accompanying documents.").
  Page 164, line 11, at end insert—
  ("() In section 90 (election expenses at elections where election agent not required)—

  (a) in subsection (1)(a), for "section 76(1) above has" there shall be substituted "section 76(1B) above and sections 90A(4A) and 90C below have";

  (b) in subsection (1)(b), for "sections 72 to 75 and 78 to 89 above" there shall be substituted "sections 71 A to 75 and 78 to 89 above, and Schedule 2A to this Act.";

  (c) for subsection (1)(c) there shall be substituted—

  "(c) section 76A(2) has effect as if it referred, in substitution for the provisions set out in paragraphs (a) to (c) of that subsection, to paragraph 3 of Schedule 4 to this Act.";
  and
  (d) in subsection (2) for "sections 72 to 89" there shall be substituted "sections 71A to 89".").

  Page 164, line 17, leave out paragraph 9 and insert—
  (". For section 110 there shall be substituted—

  Details to appear on election publications.
  110.—(1) This section applies to any material which can reasonably be regarded as intended to promote or procure the election of a candidate at an election (whether or not it can be so regarded as intended to achieve any other purpose as well).
  (2) No material to which this section applies shall be published unless—

  (a) in the case of material which is, or is contained in, such a document as is mentioned in subsection (4), (5) or (6) below, the requirements of that subsection are complied with; or

  (b) in the case of any other material, any requirements falling to be complied with in relation to the material by virtue of regulations under subsection (7) below are complied with.

  (3) For the purposes of subsections (4) to (6) below the following details are "the relevant details" in the case of any material falling within subsection (2)(a) above, namely—

  (a) the name and address of the printer of the document;

  (b) the name and address of the promoter of the material; and

  (c) the name and address of any person on behalf of whom the material is being published (and who is not the promoter).

  (4) Where the material is a document consisting (or consisting principally) of a single side of printed matter, the relevant details must appear on the face of the document.
  (5) Where the material is a printed document other than one to which subsection (4) above applies, the relevant details must appear either on the first or the last page of the document.
  (6) Where the material is an advertisement contained in a newspaper or periodical—

  (a) the name and address of the printer of the newspaper or periodical must appear either on its first or last page; and

  (b) the relevant details specified in subsection (3)(b) and (c) above must be included in the advertisement.

  (7) The Secretary of State may, after consulting the Electoral Commission, by regulations make provision for and in connection with the imposition of requirements as to the inclusion in material falling within subsection (2)(b) above of the following details, namely—

  (a) the name and address of the promoter of the material; and

  (b) the name and address of any person on behalf of whom the material is being published (and who is not the promoter).

  (8) Regulations under subsection (7) above may in particular specify—

  (a) the manner and form in which such details must be included in any such material for the purpose of complying with any such requirement;

  (b) circumstances in which—

  (i) any such requirement does not have to be complied with by a person of any description specified in the regulations, or

  (ii) a breach of any such requirement by a person of any description so specified is not to result in the commission of an offence under this section by that person or by a person of any other such description;

  (c) circumstances in which material is, or is not, to be taken for the purposes of the regulations to be published or (as the case may be) published by a person of any description so specified.

  (9) Where any material falling within subsection (2)(a) above is published in contravention of subsection (2), then (subject to subsections (11) and (12) below) —

  (a) the promoter of the material,

  235

  (b) any other person by whom the material is so published, and

  (c) the printer of the document,

  shall be guilty of an offence and liable on summary conviction to a tine not exceeding level 5 on the standard scale.
  (10) Where any material falling within subsection (2)(b) above is published in contravention of subsection (2), then (subject to regulations made by virtue of subsection (8)(b) above and to subsections (11) and (12) below)—

  (a) the promoter of the material, and

  (b) any other person by whom the material is so published,

  shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
  (11) It shall be a defence for a person charged with an offence under this section to prove—

  (a) that the contravention of subsection (2) above arose from circumstances beyond his control; and

  (b) that he took all reasonable steps, and exercised all due diligence, to ensure that that contravention would not arise.

  (12) Where a candidate or his election agent would (apart from this subsection) be guilty of an offence under subsection (9) or (10) above, he shall instead be guilty of an illegal practice.
  (13) In this section—

  "print" means print by whatever means, and "printer" shall be construed accordingly;

  "the promoter", in relation to any material to which this section applies, means the person causing the material to be published;

  "publish" means make available to the public at large, or any section of the public, in whatever form and by whatever means.

  (14) For the purpose of determining whether any material is material such as is mentioned subsection (1) above, it is immaterial that it does not expressly mention the name of any candidate."").
  Page 164, line 32, leave out ("90C") and insert ("90D").
  Page 164, line 32, at end insert (", and
  (b) in the definition of "money", for "sections 113 and 114 above" there shall be substituted "sections 71A, 113 and 114 above and Schedule 2A to this Act".").

  Page 164, line 32, at end insert—
  (" . In Schedule 3, in the form of declarations—

  (a) in paragraph 3, the words "in relation to my [the candidate's] personal expenses", and

  (b) paragraph 4,

  shall be omitted.").
  Page 164, line 43, after ("Order") insert ("1980").
  Page 165, line 2, at end insert—
  ("() For section 86(10) and (11) there shall be substituted—
  "(10) Article 60 of the County Courts (Northern Ireland) Order 1980 (appeals from county courts) shall apply in relation to any order of a county court in Northern Ireland made by virtue of this section as it applies in relation to any such decree of a county court as is mentioned in paragraph (1) of that Article."

  () For section 106(9) there shall be substituted—
  "(9) Article 60 of the County Courts (Northern Ireland) Order 1980 (appeals from county courts) shall apply in relation to any order of a county court in Northern Ireland made by virtue of subsection (3) above as it applies in relation to any such decree of a county court as is mentioned in paragraph (1) of that Article."

  () For section 167(5) there shall be substituted—
  "(5) Article 60 of the County Courts (Northern Ireland) Order 1980 (appeals from county courts) shall apply in relation to any order of a county court in Northern Ireland made by virtue of this section as it applies in relation to any such decree of a county court as is mentioned in paragraph (1) of that Article."").

  236
  Page 165, line 2, at end insert—

  References to documents used in legal proceedings
  .—(1) In section 69 (office of election agent and sub-agent)—

  (a) in subsection (1), for "writs, summonses and" substitute "legal process and other"; and

  (b) in subsection (3), for "writ, summons or" substitute "legal process or other".

  (2) In section 85(4) (penalty for sitting or voting where no return and declarations transmitted), for—

  (a) "the writ or other process" (in both places), and

  (b) "a writ or other process",

  substitute "legal process".
  (3) In section 121(5) (presentation and service of parliamentary election petition), for the words from "as nearly" to "such other" substitute "in such".
  (4) In section 136(2) (security for costs), in paragraphs (a) and (b), for "on summons, directs" substitute "directs on an application made by the petitioner".
  (5) In section 184(1) (service of notices), for 'summons, notice or" substitute "notice, legal process or other".
  (6) In section 202(1) (general provisions as to interpretation), after the definition of "legal incapacity" insert—
  ""legal process" means a claim form, application notice, writ, summons or other process;".
  (7) In Schedule 4 (election expenses at certain local elections in England and Wales), in paragraph 4(3) (penalty for sitting or voting where no return and declarations transmitted), for "a writ or other process" substitute "legal process".").
  Schedule 17, as amended, agreed to.
  Clause 132 agreed to.
  7.45 p.m.
  Schedule 18 [Control of political donations by companies: new Part XA of Companies Act 1985]:
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 260:
  Page 165, line 8, at end insert ("qualifying cash donations and qualifying non-cash donations made by companies to registered parties and to other EU political parties").
  The noble Lord said: I beg to move.
  Lord Bassam of Brighton: Perhaps I may indicate that we are prepared to take away the fourth of the amendments relating to the de minimis threshold and bring back our own similar amendment. Perhaps the noble Lord will agree to withdraw his first three amendments.
  Lord Mackay of Ardbrecknish: That is a good try by the noble Lord, Lord Bassam. I shall try to be brief in exchange for that but I have two or three points that I want to make. In fact, I shall be content if they are answered by letter but I believe that the points should be answered.
  With this series of amendments, I am looking at Schedule 18. It is essential that it is clear and transparent as to which donations constitute political donations and which do not. The scope of the meaning of an EU political organisation is, I suggest, too wide and too uncertain. For example, does that include the Industry Forum of the Labour Party, the Enterprise

  237
  Forum of the Conservative Party, think tanks like the IPPR or the Institute of Economic Affairs? Similarly, what is the standing of NGOs like Friends of the Earth?
  Lord Eatwell: As chairman of IPPR, I should point out that the IPPR is a charity.
  Lord Mackay of Ardbrecknish: I take that back, but I am making a point about think tanks and the donations from companies to think tanks. If the noble Lord waits for a few seconds, he will see the point that I am coming to.
  If the scope of the new regime is not clear, there is every likelihood that there may be problems with the donations to those bodies. Companies may not wish to fall foul of the legislation because they have failed to receive prior shareholder approval for a donation to a body which they do not believe is a political organisation but they are concerned about it. So we are seeking clarification on that. In fact, perhaps the noble Lord, Lord Eatwell, has underlined the need for clarification on the subject.
  That is the first point. My second point relates to Amendment No. 264. I am sorry that my noble and learned friend Lord Fraser of Carmyllie cannot be here but this issue has arisen in particular with regard to the Parliamentary Group for Energy Studies. The chairman of the group, Mr Ashok Kumar, the MP, wrote to Mr Paddy Tipping on 4th February seeking clarification as to whether those all-party groups would be treated as political organisations. Some all-party groups receive donations from companies and so on. Of course, if they are considered to be political groups, they would fall within the provisions of the Bill and would require prior shareholder approval.
  In his reply on 24th March, Mr Tipping confirmed that, as the Bill was worded, all-party groups would be affected and the definition would be looked at afresh. My information is that that decision was taken last Easter, and that would exclude all-party groups from the Bill. My noble friend was told by the Minister that the Government intended to clarify the scope of Schedule 18 so that all-party groups would not be considered. But nothing much has happened and here we are, in Committee, and no amendment seems to be forthcoming.
  I hope that I have made my points as quickly as possible. Schedule 18 needs a little thought and some clarification. I beg to move.
  Lord Bassam of Brighton: I thought that this might be simpler than it has turned out to be. The amendments would narrow the definitions used in Part IX to exclude from the provisions of the Bill donations to political organisations other than political parties and company expenditure on advertising or promotional material. The second objective is to introduce a de minimis threshold, which we agree with in part.
  238
  We need to remind ourselves what this part of the Bill is about. The Neill committee said that it wanted a broad definition of political organisations, because otherwise companies would have undesirable scope to evade the legal requirements on political donations. We cannot support the amendments on that point.
  I am not sure that we can deal with the noble Lord's points because of the way in which the amendments have been set out, but we agree that there is a good case for a de minimis threshold. We should like to introduce an amendment on Report to exclude all-party groups from Part IX. That might help. We will deal with the issue in Amendment No. 280 of a de minimis limit for company authorisation, not for disclosure. That probably addresses the issue.
  Lord Mackay of Ardbrecknish: I am grateful to the Minister. We shall read what he has said and look forward to an amendment on Report, as well as any clarification that he can give on any of my other points, including the de minimis point. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 261 to 264 not moved.]
  Lord Blackwell Lord Blackwell moved Amendment No. 264A:
  Page 165, leave out lines 35 and 36 and insert—
  ("(b) any organisation whose intention is to affect public support for a registered political party or referendum campaign, where intention to affect support is indicated by the criteria set out below—

  (i) whether the organisation gives financial support to registered parties or referendum campaigns,

  (ii) whether the organisation undertakes activities that are specifically aimed at canvassing support for registered parties or referendum campaigns as opposed to influencing the overall political and policy debate,

  (iii) whether the organisation is constrained to support policies endorsed by one political party or is free actively to develop and promote ideas independently of any political party.

  (iv) whether membership, subscription or equivalent status is restricted according to political affiliation or is open to all,

  (v) whether political parties have any role in appointing officers of the organisation.").

  The noble Lord said: The aim of the amendment is to provide a possible solution to some of the issues that my noble friend Lord Mackay has just raised. I declare an interest as the chairman of the Centre for Policy Studies, which is a think tank that may be affected in some of the ways that my noble friend suggested.
  There is still uncertainty about the definition of an "EU political organisation" and what requirements there might be on forward permission from shareholders. The Bill defines an EU political organisation as a registered party or,
  "any other organisation which carries on … activities of any political nature in the United Kingdom or any other member State".
  "Activities of any political nature" is a broad definition. As my noble friend suggested, a number of other organisations apart from think tanks could be

  239
  caught, including pressure groups or trade associations. Indeed, it is difficult to think of many organisations with a role in public life that could not be described as carrying out activities of a political nature in some way.
  If the definition is not clear, it will be left to companies and their boards to decide on a case-by-case basis whether they believe that theirs is a political organisation under the terms of the Bill. If they decide on the evidence available that it is not, they lay themselves open to challenge. That creates unhelpful uncertainty and may, on the margins, discourage corporations from giving to organisations to which we might wish them to donate. The onus is on the Government to clarify the issue by setting out their intentions rather than leaving it to other organisations, and ultimately the law, to interpret.
  The amendment puts forward one way of drawing the line between political organisations and others. The issue is open to considerable debate. Our intention was to include those organisations that are fronts for registered political parties, by which I mean organisations that seek to persuade people to vote for a party or candidate, but to exclude organisations that are independent of political parties and seek merely to develop policies or pursue political debate. That seems to be a clear possible dividing line. The formulation has been discussed by various think tanks and is broadly supported by, among others, the Centre for Reform, the Institute of Economic Affairs, the New Policy Institute and the Social Market Foundation and it has been discussed in broad terms with officials. The question is whether the amendment, which is meant to be helpful by setting out some criteria to define the amorphous term "political organisation", is an acceptable way of drawing the line and giving greater certainty.
  Charities were mentioned earlier. Some organisations are charities and some are not. That would be one way of drawing a line, but the criteria by which the Charity Commissioners decide on charities are not necessarily the right ones in this case, any more than they are necessarily the right people to ask to delineate what is a political organisation. That is a side issue to the Government providing a clearer definition of an EU political organisation. I ask the Government to look at the words that I have used. I hope that they, or some similar form of words, will be acceptable. If the Government do not accept them, I should like to hear that they are prepared to put forward an alternative form of words to meet the same objective. I beg to move.
  Lord Harris of High Cross: Before I launch into a formidable speech in support of the amendment, may I ask the Minister whether the Government intend to table an amendment to meet the anxiety that the noble Lord, Lord Blackwell, has expressed and which is shared by many people, including by the noble Lord, Lord Eatwell, and me? I understood the Minister to say that earlier.
  Lord Bassam of Brighton: Yes, that is our intention. We want to retain the principles of accountability and
  240
  transparency that Neill has rightly set down on this tricky set of issues. The amendment is very helpful. We cannot sign up to the wording and there are complexities, which the noble Lord has acknowledged, about what is charitable or non-charitable work. I am sure that other noble Lords will also acknowledge those problems. We should like to consider the points that have been made so far and table a government amendment to address them. I am confident that we will provide a working definition of what is "political" in these circumstances.
  Given that there are three or four think tanks considering the issue, together we might come up with a workable solution that will give effect to the noble Lord's intentions, although think tanks do riot always solve problems, do they?
  8 p.m.
  Lord Eatwell: I hope that they do. I should like to address this issue, first, specifically with regard to think-tanks. The development of think-tanks in the UK has proceeded apace over the past decade. Some venerable think-tanks—for example, the Fabian Society and the Institute of Economic Affairs, with which the noble Lord, Lord Harris, was connected—have existed since the 1950s or even earlier and have made a major contribution to British political life.
  Over the past 10 or 20 years a number of other think-tanks have developed and have, I believe, contributed significantly to British political debate. They are a positive element and most are funded by voluntary contributions of one form or another. It would be unfortunate if voluntary contributions to thinking about policy and policy affairs were limited in some way by this Bill.
  Therefore, I urge the Government to consider think-tanks, which of course are necessarily political. I refer not only to think-tanks such as the Centre for Policy Studies, which is not a charity, the Institute of Economic Affairs, which, I believe, is, and the IPPR, which I chair and which is a charity. Those are clearly interested in political issues and policy. I think also perhaps of Amnesty International or even the British Red Cross, which occasionally take strong political positions and which might be caught if the Government are not terribly careful in their drafting of the Bill.
  The main division which exists in the Bill at present is between charities and non-charities. Of course, a clear divide within the remit of the Charity Commission is that an organisation can be political but it must not be party political. Whether or not that is an appropriate divide, I am not sure. I am clear that think-tanks and other organisations which are not party political should not be included within the restrictions which are imposed on political funding in this Bill. That would be entirely inappropriate and the Charity Commissioners give us a clear solution to that problem.
  However, some organisations are, in a way, party political. They develop ideas within a very party political context but can also provide an important

  241
  spark in political debate in this country. For example, after the Second World War, the allies established think-tanks for each of the main German political parties as an important part of the democratisation process in Germany. Those research organisations, including Stiftung, with which we are all familiar, have played a tremendously important part in the development of German democracy, even though they are party political.
  Therefore, I ask the Government to accept that the Charity Commissioners provide us with one step along the road to defining clearly the position of think-tanks as non-party political. I also ask them to be sensitive to the role of more party-political think-tanks, which can play an important role in our democracy today and whose funding may be placed in jeopardy if we take too hard a line on this Bill.
  Lord Newby: I declare an interest as a trustee at the Centre for Reform, which, like all think-tanks, is engaged in policy development. I believe that it is important to stress that all think-tanks, particularly as they have developed, have shown an increasing willingness and enthusiasm to involve in their work people who are not members of a party, even if they come from a party background.
  The Centre for Reform, for example, which not surprisingly is run by and serves to promote principally ideas which Liberal Democrats find acceptable, has recently published a book about EU enlargement. Most of the people who contributed to that publication were academics. So far as I know, they had no particular party allegiance. They were specialists in agricultural policy, foreign policy and so on. We like to think that the book that they produced helps to develop public debate on a major political issue. Therefore, I believe that it is important that think-tanks are given every opportunity to raise funds and to develop without being constrained in the same way as political parties.
  The Centre for Reform was established after the last general election. We had to make a choice as to whether or not to become a charity. We decided that we would not do so on the basis that we were not absolutely sure how the Charity Commissioners would view us and that it would be easier not to be because we would be less constrained in what we did. We try very hard to carry out a great deal of work with a small amount of resource. I suspect that in that we have much in common with every think-tank in the land.
  Therefore, I am wary of any proposal that will make it less easy for us to raise funds. Often we are talking about relatively small amounts of money. The Centre for Reform often approaches individuals or organisations and asks for small numbers of thousands of pounds to produce a publication, or possibly £10,000 or £20,000 to help to support a little research. In my view, anything that makes that type of fund-raising more difficult diminishes not only our ability but the ability of those who are thinking about public policy in this country to help in the development of public policy.
  242
  I, and no doubt other Members of the Committee, were heartened by what the Minister said. We look forward to discussing with him the possibility of another amendment. I believe that this is an important issue. I hope that on Report an amendment will be tabled on which we can all agree. I hope that such an amendment will make it absolutely clear that people who want to give money to think-tanks can do so without the constraints which understandably are placed on the giving of funds to political parties.
  Lord Howe of Aberavon: I wish to make one comment on behalf of another comparable organisation which next year will have been founded 50 years ago to,
  "combat the influence of the Fabian Society";
  namely, the Bow Group. It is characteristic of an organisation drawn from every wing of the scattered Conservative Party and makes contributions to a wider debate in exactly the same way as the Fabian Society has done. I do not believe that it has quite the same claim to some of the more high-sounding institutions. I am not even sure if it has the same intellectual distinction as, for example, the Institute of Economic Affairs. However, it is one of many which one should handle with care.
  When I spoke months ago on the Second Reading of this Bill, I was deeply apprehensive about the intrusion of this type of legislation into what I might call the "nooks and crannies" of political life and thought in this country. This is a very good example of it. Therefore, I am delighted to know that the Minister is considering all those organisations.
  Lord Blackwell: I am grateful for and encouraged by the support for this amendment around the Chamber. I am also grateful for and encouraged by what the Minister said and I look forward to hearing what he has to say on Report. On that basis, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 265 to 267 not moved.]
  Schedule 18 agreed to.
  Clause 133 [Disclosure of political donations and expenditure in directors' report]:
  [Amendments Nos. 268 to 276 not moved.]
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 277:
  Page 86, leave out lines 9 to 36.
  The noble Lord said: I can be brief. This may well lead back to the previous discussion. I have a question. Here we find charitable donations, in the midst of a Bill whose Long Title does not seem to include anything to do with charitable donations. I wonder why that is here and if it is consistent with the Long Title of the Bill. I beg to move.
  Lord Bach: The speaking note states that I can quickly settle the issue here. That is always rather a hostage to fortune. At present, Part I of Schedule 7 to

  243
  the Companies Act, which requires the disclosure of political and charitable donations by a company in the directors' report, is framed as an integral whole dealing with both types of donation. Clause 133 redrafts that part to amend and expand the provisions relating to political donations. In doing so, it was necessary to restate separately the existing provisions relating to charitable donations. No changes of substance have been made.
  The effect of the amendment would be to repeal the existing requirements on the disclosure of charitable donations by companies without replacing them. It may be that the noble Lord thought that we were imposing new charitable disclosure requirements; we are not. This is only to make the new part of the Companies Act look as it should.
  Lord Mackay of Ardbrecknish: I am grateful to the Minister for that explanation, which I understand. Perhaps I may suggest that he does not give me an answer now but that he considers with his officials whether this is legitimate within the Long Title of the Bill. I understand what the Minister is doing but I wonder whether it is legitimate. However, with that, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 278 and 279 not moved.]
  Clause 133 agreed to.
  [Amendment No. 280 not moved.]
  8.15 p.m.
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 280A:
  Before Clause 134, insert the following new clause—

  References to documents used in legal proceedings

    REGISTRATION OF OVERSEAS ELECTORS
    (" .—(1) In section 2 of the Representation of the People Act 1985 (Registration of British citizens overseas), at the beginning of subsection (1) there is inserted "Subject to subsections (1A) and (1B),".
    (2) After subsection (1) there is inserted—

    "(1A) A person may not be registered in a register of parliamentary electors for any constituency or part of a constituency in pursuance of an overseas elector's declaration unless he has been so registered within the previous 12 months.

    (1B) Subsection (1A) does not apply to a person who qualified as an overseas elector in relation to parliamentary election within the previous 5 year period, and such a person may be registered in accordance with subsection (1) above if—

    (a) during that 5 year period they have been registered at least once in a register of parliamentary electors for any constituency or part of a constituency in pursuance of an overseas elector's declaration (whether or not that registration has subsequently lapsed), and

    (b) they register within 12 months of the end of that 5 year period."").

    The noble Lord said: At the risk of putting down a hostage of fortune, this is the last major amendment in the Committee stage of the Bill. The Ministers are probably delighted; frankly, so am I. Amendment No. 280A deals with the provision for overseas electors. As Members of the Committee know, the Bill, as drafted, seeks to reduce the qualifying period to register as an overseas elector from 20 years to 10 years. I believe
    244
    that this is the first law since universal franchise which seeks to disenfranchise those who are eligible to vote at present.
    My amendment seeks to do something very different. Roughly speaking, it is the "use it or lose it" concept. I believe that I have considerable support for this around the Chamber. Clause 134 proposes to reduce the qualifying period during which British citizens living overseas can vote in UK elections to 10 years. That was not a recommendation of the Neill Committee, nor was it in the Government's White Paper.
    There are roughly 3 million British citizens living abroad. I believe that their views in this matter have not been taken into account. Like many noble Lords, I have had a great deal of correspondence in this matter. I shall not bore Members of the Committee with this, but they will recall from other Bills that I have a daughter who lives in Italy, and so on and so forth. I am not principally pursuing their interests, although I am their proxy, so their votes arc pretty safe. It also allows me to go to a polling station and remember the days before I was elevated to this place.
    In evidence given to the Home Affairs Select Committee in 1998, the Home Office stated that nearly all the representations it has received on this issue wish to keep and, indeed increase, the qualifying period. When the 20 year limit was introduced in 1989, Alistair Darling, now the Secretary of State for Social Security, speaking on behalf of the then Opposition, said that 20 years was a sensible compromise. He argued that,
    "it is now clear that a number of people will leave this country … but will still maintain a lively interest in the affairs of the country".
    I believe that remains the case.
    In the other place there was cross-party consensus that the Bill, as drafted, was unacceptable and that something should be done which would enable voters to have an enduring connection with the United Kingdom and to continue to have a right to vote for as long as they continue to register each year; that is, the "use it or lose it" part.
    My amendment will enable those British citizens living abroad to continue indefinitely to vote and participate in the electoral processes of the United Kingdom. Each overseas elector would need to register during, and at any time during, his or her first five years of living abroad. But to maintain their voting rights they would have to continue to register after the five-year period in each subsequent year. If they failed to register in any year after that, they would lose the right to vote.
    I hope that that gives some comfort to those who wish to see the 20-year period remain in place or be extended. I hope that it will also please those who think that giving people 20 years in which they could register—for the first time, I suppose—is far too liberal. I believe that this is a reasonable compromise.
    I have consulted widely and been lobbied fairly extensively on this matter. I believe that my amendment has cross-party support. I have had support from surprising quarters. In a fax dated 17th October, Labour International stated:
    "No doubt the letterhead is unexpected but, on behalf of the overseas members of the Labour Party, please let me express our sincere thanks for your stand on the issue of overseas voting. We fully support your amendment and would be pleased to join in a world-wide cross-party lobbying effort in this connection".
    Indeed, Labour International goes further and states that my amendment is superior to the Government's proposals. I have a number of other letters on the subject. Some are from Brussels. A number of people who work for the Community in various aspects have lifelong connections with this country and feel that they would be disfranchised. I know that some people think that perhaps we should narrow this down to include only people working in Brussels and for official bodies. However, I believe that is unfair and wrong. Many other British citizens may be working for companies abroad, but indirectly they may still be working for Great Britain or the United Kingdom plc. I am not in favour of making any distinction. We should treat all our citizens living abroad in the same way.
    I shall not continue at any length. Global economy, increasing travel and the free flow of people around the world suggest that we should not go back 10 years and reduce the period to the first 10 years. We should extend it on the "use it or lose it" principle. Many people from other countries who come to this country can register to vote here and vote. I refer to the Commonwealth, for example. It seems to me to be wrong to treat British citizens who go abroad in such a negative way and not accept that, if they are interested enough to keep registering year on year, they should continue to be allowed to participate in our democratic process. I beg to move.
    Lord Goodhart: I shall shortly speak to Amendment No. 280E in this group, tabled in the name of my noble friend Lord McNally and myself. However, before I do so, I should like to speak to Amendment No. 280A. As the noble Lord, Lord Mackay, pointed out, this matter was not considered by the Neill Committee. Therefore, in this short debate I speak on behalf of my party and do not in any sense wear a Neill Committee hat.
    The view of the Liberal Democrats was that we originally put forward a proposal that the vote should be retained for a period of only five years.
    We accepted that 10 years was a reasonable compromise. We voted for 10 years in the other place and have not tabled any amendment to propose a reduction in that period. But 20 years is too long. It amounts to nearly half of an average working life. Those who are out of this country for a continuous period of 20 years have generally lost contact with what goes on here to a degree that makes it inappropriate that they should play a part in parliamentary elections.
    246
    Many people are employed commercially overseas and a large proportion of them will not be abroad continuously for 20 years or indeed 10 years. They will normally serve a period abroad and then return to this country for a while and perhaps go abroad again if they are working for a multi-national. But that is a commercial decision to make a career overseas with a commercial organisation.
    The purpose of Amendments Nos. 280E and the similar Amendment No. 280EA, is to exempt a small group of people from the time limit. At present Section 14 of the Representation of the People Act 1983 allows people to register without time limit if they are serving abroad as members of the Armed Forces, in other positions in the service of the Crown—mostly in the Diplomatic Service—or as employees of the British Council. We believe that that provision should be extended to cover those who are employed by various institutions of the European Union and other international organisations to which the United Kingdom belongs. Some Members of your Lordships' Committee—they were present earlier but are no longer in their places—regard service with a European Union institution as being virtually akin to treachery. We do not; in fact, we regard them as serving the United Kingdom by serving as employees of an organisation to which the United Kingdom belongs.
    But this issue goes wider than the European Union. We believe that similar treatment should be given to those who serve the United Nations or any of its various agencies; and those who serve the World Bank, the International Monetary Fund or the other smaller and less well-known international organisations of which the United Kingdom is a member. On the grounds that those people are in public service to a public which includes the United Kingdom, they should be entitled to maintain their place on the register of electors in the United Kingdom.
    Lord Dubs: I should like to comment briefly on the general context in which these amendments are being considered before going on to speak to the specific amendment standing in my name and that of my noble friend Lady Gould, Amendment No. 280EA.
    I have some sympathy with the comment "use it or lose it", used by the noble Lord, Lord Mackay. It has a certain integrity and ensures that people who are interested in retaining a commitment to voting are able to retain the right to vote. However, at the time when the 20-year period was introduced, I wondered whether that was the right way to go. In that regard I have some sympathy with the noble Lord, Lord Goodhart.
    The right to vote is a responsibility and a privilege. It surely ought not to be given to those who have thrown their lot in with another country. Those who are committed to this country and are abroad for reasons of service to this country or as employees of international organisations of which this country is a member, have not actually cut their ties with this country. But I do not know whether an individual who has cut all his ties with this country should continue to have the privilege of being able to vote in our elections.

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    After all, how will those who have no residence in this country and who have been away for 10 years or more know what the election issues are? Presumably they do not pay taxes here and therefore will not be involved in some of the real subject matter of an election. So I worry about giving people who are away for such long periods the right to vote when they no longer have any links with this country beyond originating here. They have thrown their lot in with another country and are no longer part of our political system.
    Lord Mackay of Ardbrecknish: I am grateful to the noble Lord for giving way. Perhaps I may make two points and ask the noble Lord if he would like to address them. First, if a person has no links and no interest, he will probably not continue to register to vote every year. That was my reason for saying that they must register every year. They cannot suddenly think, "Oh there's an election coming up. I'd better register". If they missed registering last year, then they have missed out forever.
    Secondly, the noble Lord obviously has not heard of the Internet where people abroad can now read British newspapers and watch the BBC as quickly and as readily as can we who live here. So I can assure the noble Lord that their interest can be maintained on a day-to-day basis.
    Lord Dubs: That is why I said I had some sympathy with the "use it or lose it" point. And it is certainly possible, even if one has not heard of the Internet—I actually use it quite frequently—to obtain newspapers originating in this country. However, that is not the same as playing a part in the political life of this country. Those people do not pay taxes in this country; they have no day-to-day involvement with the issues that affect us, whether it is the health service, public transport or whatever. That is why I ask whether people who have cut their ties with this country should be entitled to the privilege of taking part in our elections? I believe that if they have cut those ties for quite some time they should not.
    That brings me to Amendment No. 280EA, which is similar to Amendment No. 280E. They seek to make an exception for those people from this country who work for international organisations of which the United Kingdom is a member. In doing that, they are continuing to retain their links with this country and are therefore entitled to say that they have not thrown their lot in with another country; they are still committed to the political process of this country.
    That is why it is anomalous that British subjects who work for the European Commission or the European Parliament and are based in Brussels or Strasbourg should lose their right to vote, when those who work for the Foreign Service or the British Council do not. There is an inconsistency in that and both amendments seek to put that right. I hope the Government will consider them sympathetically.
    Lord Williamson of Horton: I rise to support firmly but briefly Amendment No. 280A moved by the noble Lord, Lord Mackay of Ardbrecknish.
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    The only reason that the Government could propose, as they do in this Bill, to change the current situation is that they believe that British citizens living abroad effectively lose their links with the United Kingdom after a shorter period than is provided for under the current rules. My experience, including 19 years working outside the United Kingdom, does not support that view. British citizens abroad generally consider the political situation in the United Kingdom to be either interesting or inspiring, or sometimes otherwise, roughly in the same proportion as British citizens in the United Kingdom.
    The amendment moved by the noble Lord, Lord Mackay, effectively responds to the Government's concern because if a United Kingdom citizen resident abroad must make the effort to register every year after his first five years abroad, he demonstrates his continued concern as a United Kingdom elector. I like the amendment because it is generally applicable.
    I could also support Amendment No. 280E tabled by the noble Lords, Lord McNally and Lord Goodhart, because it seems to me desirable that British citizens working in international, including EU, institutions should continue to feel concerned about national elections. However, I should prefer a rule of general application to all British citizens resident abroad as proposed by the noble Lord, Lord Mackay. But I do not agree with the text of the Bill as it stands. It is not satisfactory and we must go in a direction which to some degree maintains the position of those who already have rights abroad. I am generally against measures which disfranchise United Kingdom citizens.
    8.30 p.m.
    Lord Bowness: I support the amendment moved by my noble friend Lord Mackay and I hope that the Government will reconsider the position. Overseas voters are overseas for a variety of reasons, not necessarily because they have thrown in their lot with another country. People go abroad for employment, to be near their family and for health reasons. The fact that people live in other countries does not mean that they want to cut their ties with the United Kingdom. I do not believe that we should be seeking to withdraw from citizens of the United Kingdom one of their rights; namely, to vote in a parliamentary election.
    Indeed, it would be somewhat anomalous for those of our citizens who went to live within the European Union because, if they were deprived of a right to vote in a parliamentary election, they would be deprived of a vote at a particular level of election within the EU. Member states still play an important part within the EU.
    When fewer people want to be involved in the democratic process, I do not believe that we should be reining in our citizens' rights. If we do, we shall be joining a minority of countries. I am grateful to the Library for carrying out some research for me. I shall not take up the Committee's time by going through it in detail but perhaps I may examine the provisions of the other members states of the EU. Italy allows its

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    citizens to keep their rights to vote even when living permanently abroad. When looking at the Netherlands, Finland, Sweden, Spain, Austria and Belgium, which gave the right to vote abroad in 1998, one sees a general acceptance of that provision. I understand that Germany allows its citizens to vote if they are resident within any state of the Council of Europe. Denmark is more limited and, according to the information I was given, France and Portugal make provision for overseas citizens within their parliaments. It seems that only Greece, Ireland and Luxembourg have no provisions.
    If we begin to restrict the right in the way suggested by the Government, we shall be moving to the end of the spectrum where countries are less generous towards their citizens rather than to the end where they are more generous. That would be a matter of great regret.
    Lord Tomlinson: I support the amendment moved by the noble Lord, Lord Mackay. There is a strange paradox because, at a time when the Home Office is conducting all kinds of experiments in local government elections to try to persuade electors in this country to use their votes in greater abundance, the Home Office is trying to reduce the right to vote of those who are not only working abroad serving their country but who are vigorously fighting to retain their right to vote. It is not a sign that people have cut themselves off from their country, but the noble Lord's evidence from New York illustrates the pressure that is being put on both the public and private sectors.
    Many of the 3 million citizens who live abroad choose not to exercise their votes. Those who feel themselves alien from the process do not participate in it now and there is no reason to believe that they will in future. But to reduce the qualifying period from 20 years to 10 is about as retrograde a step as one could imagine a Parliament taking in the name of democracy.
    If there is nothing wrong with the present system, do not seek to change it. I should be happy if my noble friend said that he has thought again, that 10 years is a silly provision and that a longer period will suffice. The longer period should be that which we already have and my noble friend must establish a case for changing what exists. But if he is insistent on changing the system, the proposal put forward by the noble Lord, Lord Mackay, is eminently reasonable. It applies to both the public and private sectors; those who serve their country in the public sector and those who serve the interests of this country by working in British companies abroad. I do not see the distinction; it is entirely artificial.
    On that basis, the amendment tabled by the noble Lord, Lord Mackay, is preferable to that which seeks to limit the provision to people working in the public sector. I hope that my noble friend will realise that it is not an issue about which a few people have suddenly become concerned; there has been a long-standing expression of concern. I hope that he recognises that three is disquiet in the Committee that after so much
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    concern being expressed so publicly over such a long period the Home Office has been so slow to react. I hope he will reassure us tonight that serious thought has been given to the matter and that he has proposals which will allay some of the anxiety. If he does not, I shall find the proposals of the noble Lord, Lord Mackay, vastly preferable to that which is in the Bill.
    Lord Howe of Aberavon: I want to speak in support of both amendments. To some extent, each has its own merits, which have been well canvassed.
    Perhaps I may start from the point made by the noble Lord, Lord Tomlinson. The existing provisions have not been used by 3 million people; they have been used by a much smaller number. It is not as though out system is about to be overwhelmed by hoards of quasi-aliens, cut-off Britons, voting in unpredicted numbers. Therefore, any move which restricts those who are entitled to exercise the right is entirely negative.
    I can support the Liberal Democrat amendment because it extends provisions which already exist in relation to British Crown servants, British Council people and one other category to other people in public service overseas in all the international organisations. The noble Lord, Lord Williamson, as a creature of that kind, is Exhibit A in tonight's debate. He has done immense service to this country in his work in the European Commission. We had to work very hard to secure people in that position and we did it in the national interest.
    Moreover, as regards the European Community, Members of the Committee will know of the European fast stream provisions which are designed to secure long career-running British public servants in the European institutions. It would be foolish not immediately to accept the amendment moved by the noble Lord, Lord Goodhart, from the Liberal Democrat Benches.
    However, one is then left with the discrimination not only between the public service, however widely one defines it, and business but between the public service and worthy, often young, people in nongovernmental, charitable organisations working overseas for long periods of time. I was struck by the somewhat diffident rejection of the case I put to the Home Office prior to the Recess. I expect that other Members of the Committee have received the same response. The letter that I received from Mr Mike O'Brien, Parliamentary Under-Secretary of State at the Home Office, concluded, rather encouragingly:
    "As you say, the Government has indicated that it is ready to consider amendments to clause 134 if there was a consensus in favour of an alternative proposal. I have yet to see signs of such a consensus emerging".
    Listening to tonight's debate, the consensus that I support is that both amendments cover the entire field of deserving characters. Mr O'Brien goes on to say:
    "This is particularly so in the case of the proposal that existing arrangements for Crown servants … be extended to cover those employed by international organisations".

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    I believe that the use of the expression "particularly so" means that the Government are anxious to achieve a solution for those in international organisations. He goes on to say:
    "In the Commons there was some sympathy for the view that it would be difficult to argue that similar treatment should not also be afforded to those employed overseas by, for example, British businesses or charities".
    The letter appears to solve its own problem. The Government say that they seek consensus. They would be happy to have an arrangement for those in the public sector. However, they would be a little hesitant about it because it would discriminate, for example, against those working for British businesses or charities. If I may be allowed to use Latin in this place rather than in the law courts, cadit quaestio: the question falls because it answers itself. If the Minister indicated a willingness to accept both amendments, that would go even further in the direction of common sense than the alternative proposed by the noble Lord, Lord Tomlinson, that there should be a return to square one. I hope that the Committee will demonstrate a massive consensus, sufficient to satisfy the Home Office in its tentative search for such a thing, by accepting both amendments without hesitation. I very much look forward to hearing exactly how the Minister can possibly rebut that clutch of arguments.
    8.45 p.m.
    Baroness Gould of Potternewton: I am in such agreement with the noble and learned Lord who has just spoken that I need not repeat many of the points that he made. What we have before us is a package, and both amendments can be seen in that light. Perhaps the fact that they are all grouped together for one debate identifies that fact. I hope my noble friend will say that the Government will go away and look at this as a package and return with relevant amendments.
    Electoral registration officers have pointed out to me one or two technical problems about the amendments spoken to by the noble Lord, Lord Mackay of Ardbrecknish, which I am sure they would want to put right. However, in the other place the Government said that if there was consensus, they would give this matter serious consideration. I have read the debate in the other place, and the objection appeared to be that if one extended the categories as outlined in the amendments in my name and that of my noble friend Lord Dubs, the provision would relate only to Crown servants who now have that facility. That is not true. British Council staff are not Crown staff and yet that extension has been made in their case. It has also been said that the "use it or lose it" argument does not apply to those who work in the commercial field. I believe that it can and should. That argument is also unacceptable. However, I do not believe that in any of the amendments before us we have the ideal. I hope that the Minister will go away and think about this again.
    Lord Grenfell: I believe that the proposal to treat this as a package by my noble friend Lady Gould is
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    eminently sensible. My sympathies are with the "use it or lose it" amendment, but even more so with the two Liberal Democrat amendments. Having served for 30 years in an international organisation, those amendments have a special appeal to me. From my experience, the British members of staff never lost interest in what was going on back in their own country. Although some of my noble friends on these Benches may suggest that I should have my head examined, in my 10th year at the World Bank I became a founder member of the supporters group of the New York City Social Democrat Party. We took a very great interest in what went on in United Kingdom politics.
    I should not like people to believe that the amount of time spent abroad working for an international institution automatically reduces someone's interest in his home country. I cannot say that I have received any correspondence from Conservatives abroad: all of it has gone to the noble Lord, Lord Mackay. However, I have received a great deal of correspondence from Labour supporters abroad who have a very good point. I very much hope that my noble friend will look at this as a package and see whether something can be done to produce a better arrangement than that which is now in the Bill.
    Lord Bassam of Brighton: We have the noble Lord, Lord Mackay, a hero of Socialist International, and we have Exhibit A on the Benches behind me. I am confounded by all of the responses. In this matter we responded to the report of the Home Affairs Select Committee on electoral law and administration in October 1998. We said in another place that we sought consensus on this matter. Originally, we believed that 10 years would attract consensus. Clearly, that is not so.
    Although I have particular difficulty with the amendments before us, I believe that the "use it or lose it" approach may turn out to be very complex and administratively difficult for electoral registration officers, as my noble friend Lady Gould hinted. If one adopts a class exemption and says that certain categories of UK citizens abroad will have an entitlement to vote but others will not, that leads us into difficulties in terms of discrimination. Where does one draw the boundary as to who should be included in any amendment to what is offered at the moment?
    Having made those observations, I am content to go away and contemplate this matter further. My own preference is to continue to have a qualifying period. Having heard the arguments in Committee this evening, I accept that both five years and 10 years are unacceptable periods. However, a qualifying period is at least a clean, neat solution. I am tempted to believe that there should be some kind of compromise. I should like to consult on the possibility of having an extended qualifying period of, say, 15 years. That is perhaps on the generous side of a compromise between 20 years as originally proposed and five years as suggested by the Home Affairs Select Committee.

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    I do not want to extend the debate any further. I have heard the powerful voices in the Committee on this matter. I am not sure that we can achieve a solution in the form of a package, given some of the complications involved in the various amendments. I should like Members of the Committee to reflect on that. However, we shall return with an amendment which is rather more generous in terms of its qualification than that which is currently before the Committee. With that, I invite the noble Lord to withdraw his amendment so that we can give the matter further consideration.
    Lord Goodhart: Having opposed the first amendment in the name of the noble Lord, Lord Mackay of Ardbrecknish, I have been impressed by the degree of support for it expressed on all other sides of the Committee. We should be prepared to consider a package, provided that it included both something in the form of our amendment, or the amendment in the name of the noble Lord, Lord Dubs, and the "use it or lose it" amendment. Obviously, we should like to see the detail of what is proposed before we commit ourselves to supporting it, but in principle we should look favourably on a package.
    Lord Mackay of Ardbrecknish: I thank all Members of the Committee who have taken the trouble to add their voices in support of the principles involved in this issue. The Minister recognises that he has no friends for the position in which he currently finds himself. Perhaps I may say to the noble Lord, Lord Goodhart, that my amendment would cater for all the people he is concerned about. I am not one of those people who think that working for a European institution is treachery; nor do I think that working for private enterprise in any of its forms abroad as a British citizen is treachery. I should be very reluctant to sign up to anything which differentiated between various classes of British citizens. I have a friend—
    Lord Goodhart: Does the noble Lord accept that under Section 14 of the Representation of the People Act there is differentiation between Crown servants and others?
    Lord Mackay of Ardbrecknish: Yes, indeed, the noble Lord is correct. But that probably has a long historical connection back to the days of the Empire, military serving abroad, the diplomatic corps and so on.
    I have a friend who has taught English to Italians in Piacenza for the past 40 years or so. His interest in this country is as great as it was the day he left. Indeed, in order to find gossip about our mutual friends I usually have to phone Italy to receive the news about what is happening around me. Usually he is astonishingly accurate. I had better not go into what he tells me about friends. But he certainly keeps me right about who is married to whom or who is still married to whom, which is perhaps more important these days.
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    I think there is general agreement which the Minister has taken on board. I am content to listen to points and have discussions about the complexities of my amendment. But I am attracted to the two principles: first, you have to establish your interest reasonably soon after you leave this country; and, secondly, you must keep up that interest year on year. There is also a third point, if I may add that. You can actually have your interest for as long as the job takes, because increasingly people are working on these posts for a very long time. I mentioned the noble Lord, Lord Burns, and there are many people who work in Europe and other parts of the world. They work away for quite a long time because it is part of their career. But they never actually lose contact with this country.
    I am grateful to the Minister for listening to us attentively and carefully. I am grateful to noble Lords who have taken part. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 134 agreed to.
    Lord Bach Lord Bach moved Amendment No. 280B:
    After Clause 134, insert the following new clause—

  Pre-consolidation amendments

    PRE-CONSOLIDATION AMENDMENTS
    .—(1) Schedule 1 to the European Parliamentary Elections Act 1978 (system of election etc.) shall be amended as follows.
    (2) In paragraph 5 (disqualification for office of Member of the European Parliament), in sub-paragraphs (4)(a) and (4A)(a), after "section 3" there shall be inserted "or 3A".
    (3) In paragraph 6 (judicial proceedings as to disqualification under paragraph 5), in sub-paragraph (1)(b), after "section 3" there shall be inserted "or 3A".").
    The noble Lord said: In moving Amendment No. 280B, I shall speak also to Amendment No. 325. The new clause inserted by Amendment No. 280B makes some technical adjustments to Schedule 1 to the European Parliamentary Elections Act 1978. The need for these adjustments has arisen in the process of drafting a Bill to consolidate the European Parliamentary Elections Acts of 1978, 1993 and 1999. That Bill was given a Second Reading in your Lordships' House on 15th June.
    Paragraphs 5 and 6 of Schedule 1 to the 1978 Act are concerned with the disqualification of MEPS. In each case they refer to an MEP returned under Section 3 of the 1978 Act. That section is concerned with elections in Great Britain. We need to add a reference to Section 3A, which is concerned with elections in Northern Ireland. This is a small but important defect which it would be timely to correct in advance of the consolidation of the European Parliamentary Elections Acts.
    To accommodate the new clause, a change to the Long Title of the Bill is needed, hence Amendment No. 325. I beg to move.
    Lord Bach Lord Bach moved Amendment No. 280C:
    After Clause 134, insert the following new clause—

  Election material

    DETAILS TO APPEAR ON ELECTION MATERIAL
    .—(1) No election material shall be published unless—

    (a) in the case of material which is, or is contained in, such a printed document as is mentioned in subsection (3), (4) or (5), the requirements of that subsection are complied with; or

    (b) in the case of any other material, any requirements falling to be complied with in relation to the material by virtue of regulations under subsection (6) are complied with.

    (2) For the purposes of subsections (3) to (5) the following details are "the relevant details" in the case of any material falling within subsection (1)(a), namely—

    (a) the name and address of the printer of the document;

    (b) the name and address of the promoter of the material; and

    (c) the name and address of any person on behalf of whom the material is being published (and who is not the promoter).

    (3) Where the material is a document consisting (or consisting principally) of a single side of printed matter, the relevant details must appear on the face of the document.
    (4) Where the material is a printed document other than one to which subsection (3) applies, the relevant details must appear either on the first or the last page of the document.
    (5) Where the material is an advertisement contained in a newspaper or periodical—

    (a) the name and address of the printer of the newspaper or periodical must appear either on its first or last page; and

    (b) the relevant details specified in subsection (2)(b) and (c) must be included in the advertisement.

    (6) The Secretary of State may, after consulting the Commission, by regulations make provision for and in connection with the imposition of requirements as to the inclusion in material falling within subsection (1)(b) of the following details, namely—

    (a) the name and address of the promoter of the material; and

    (b) the name and address of any person on behalf of whom the material is being published (and who is not the promoter).

    (7) Regulations under subsection (6) may in particular specify—

    (a) the manner and form in which such details must be included in any such material for the purpose of complying with any such requirement;

    (b) circumstances in which—

    (i) any such requirement does not have to be complied with by a person of any description specified in the regulations, or

    (ii) a breach of any such requirement by a person of any description so specified is not to result in the commission of an offence under this section by that person or by a person of any other such description;

    (c) circumstances in which material is, or is not, to be taken for the purposes of the regulations to be published or (as the case may be) published by a person of any description so specified.

    (8) Where any material falling within subsection (1)(a) is published in contravention of subsection (1), then (subject to subsection (10))—

    (a) the promoter of the material,

    (b) any other person by whom the material is so published, and

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    (c) the printer of the document, shall be guilty of an offence.

    (9) Where any material falling within subsection (1)(b) is published in contravention of subsection (1), then (subject to regulations made by virtue of subsection (7)(b) and to subsection (10))—

    (a) the promoter of the material, and

    (b) any other person by whom the material is so published,

    shall be guilty of an offence.
    (10) It shall be a defence for a person charged with an offence under this section to prove—

    (a) that the contravention of subsection (1) arose from circumstances beyond his control; and

    (b) that he took all reasonable steps, and exercised all due diligence, to ensure that that contravention would not arise.

    (11) In this section—

    "election material" has the meaning given by section 80(2A);

    "print" means print by whatever means, and "printer" shall be construed accordingly;

    "the promoter", in relation to any election material, means the person causing the material to be published;

    "publish" means make available to the public at large, or any section of the public, in whatever form and by whatever means.").

    Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 280D:
    After Clause 134, insert the following new clause—

    BROADCASTING OF LOCAL ITEMS DURING ELECTION PERIOD
    (" . For section 93 of the Representation of the People Act 1983 there shall be substituted—

  Broadcasting of local items during election period.
  93.—(1) Each broadcasting authority shall adopt a code of practice with respect to the participation of candidates at a parliamentary or local government election in items about the constituency or electoral area in question which are included in relevant services during the election period.
  (2) The code for the time being adopted by a broadcasting authority under this section shall be either—

  (a) a code drawn up by that authority, whether on their own or jointly with one or more other broadcasting authorities, or

  (b) a code drawn up by one or more other such authorities;

  and a broadcasting authority shall from time to time consider whether the code for the time being so adopted ray them should be replaced by a further code falling within paragraph (a) or (b).
  (3) Before drawing up a code under this section a broadcasting authority shall have regard to any views expressed by the Electoral Commission for the purposes of this subsection; and any such code may make different provision for different cases.
  (4) The Independent Television Commission and the Radio Authority shall each do all that they can to secure that the code for the time being adopted by them under this section is observed in the provision of relevant services; and the British Broadcasting Corporation and Sianel Pedwar Cymru shall each observe in the provision of relevant services the code so adopted by them.
  (5) For the purposes of subsection (1) "the election period", in relation to an election, means the period beginning—

  (a) (if a parliamentary general election) with the date of the dissolution of Parliament or any earlier time at which Her Majesty's intention to dissolve Parliament is announced,

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  (b) (if a parliamentary by-election) with the date of the issue of the writ for the election or any earlier date on which a certificate of the vacancy is notified in the London Gazette in accordance with the Recess Elections Act 1975, or

  (c) (if a local government election) with the last date for publication of notice of the election,

  and ending with the close of the poll.
  (6) In this section—

  "broadcasting authority" means the British Broadcasting Corporation, the Independent Television Commission, the Radio Authority or Sianel Pedwar Cymru;

  "candidate", in relation to an election, means a candidate standing nominated at the election or included in a list of candidates submitted in connection with it;

  "relevant services"—

  (a) in relation to the British Broadcasting Corporation or Sianel Pedwar Cymru, means services broadcast by that body;

  (b) in relation to the Independent Television Commission, means services licensed under Part I of the Broadcasting Act 1990 or Part I of the Broadcasting Act 1996; and

  (c) in relation to the Radio Authority, means services licensed under Part III of the Broadcasting Act 1990 or Part II of the Broadcasting Act 1996."").

  The noble Lord said: These amendments reform the out-moded restrictions on broadcasting during an election, contained in Section 93 of the Representation of the People Act 1983. The noble Baroness, Lady Fookes, spoke eloquently on this matter at Second Reading. I trust that the Government's proposals will be to her liking.
  As Section 93 stands, a single candidate can effectively block coverage of local issues by agreeing not to be in a broadcast during an election period. Amendment No. 280D will replace the existing restrictions with a requirement on the broadcasting authorities to draw up a cost of practice with respect to the participation of candidates in terms of dealing with a constituency or election in question.
  There would be a requirement on the broadcasting authorities to have regard to the views of the electoral commission when drawing up or reviewing their code of practice. The replacement Section 93 is, as I understand it, supported by the broadcasting authorities and by a number of opposition parties.
  I think our consultation is complete on this. I am not entirely sure that that is the case. But I believe that this series of government amendments currently attracts broad support. Of course we shall continue to ensure that there is active consultation and that we have it right. I do not wish to say anything more about the detail of the amendments. They speak for themselves. I beg to move.
  Lord Mackay of Ardbrecknish: I had rather hoped that my noble friend Lady Fookes would have dealt with this amendment. I understand that we are content with it and are grateful to the Government for bringing it forward.
  [Amendments Nos. 280E and 280EA not moved.]
  Clause 135 [General function of Commission with respect to monitoring compliance with controls imposed by the Act etc.]:
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 280F:
  Page 87, leave out lines 10 to 12 and insert—
  ("(b) the restrictions and other requirements imposed by other enactments in relation to—

  (i) election expenses incurred by or on behalf of candidates at elections, or

  (ii) donations to such candidates or their election agents.").

  The noble Lord said: These are government amendments which relate to the general enforcement powers of the electoral commission. They establish the enforcement machinery set out in Clauses 135 to 138 of the Bill. Without these amendments, the legislation will not work. They are there to give it teeth. I hope these amendments will find favour with the Committee. Perhaps the best way to proceed is for me to answer particular points where Members of the Committee are uncertain of the effect of the amendments.
  Lord Bach Lord Bach moved Amendments Nos. 281 and 281A:
  Page 87, line 14, at end insert ("unless and to the extent that the Scottish Ministers by order so provide.
  (3) For the purposes of subsection (2), the reference in subsection (1)(b) to any enactment shall include a reference to any enactment comprised in or in an instrument made under an Act of the Scottish Parliament.
  (4) Section 146(5) shall apply to an order made by the Scottish Ministers under subsection (2) as it applies to an order made by the Secretary of State under this Act and the reference in that section to enactments shall include a reference to any enactment comprised in or in an instrument made under an Act of the Scottish Parliament.
  (5) The power of the Scottish Ministers to make an order under subsection (2) shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.
  (6) The Scottish Ministers shall reimburse the Commission for any expenditure incurred by them which is attributable to the exercise of any function conferred by virtue of an order made under subsection (2).").
  Page 87, line 14, at end insert—
  ("() In this section and sections 136 and 138—

  "election" means a relevant election for the purposes of Part II;

  "election agent" includes a sub-agent.").

  Clause 135, as amended, agreed to.
  Clause 136 [Supervisory powers of Commission]:
  9 p.m.
  Lord Bach Lord Bach moved Amendments Nos. 281B and 281C:
  Page 88, line 34, leave out from ("to") to ("as") in line 35 and insert ("the income and expenditure of candidates within paragraph (b) of that subsection and their election agents").
  Page 88, line 37, leave out from ("with") to end of line 39 and insert ("restrictions and other requirements falling within section 135(1)(b)").
  Clause 136, as amended, agreed to.
  Clause 137 [Civil power for failure to deliver documents etc.]:
  [Amendment No. 281D not moved.]
  Lord Bach Lord Bach moved Amendments Nos. 282 to 285:
  Page 89, line 9, at end insert—
  ("(za) the requirements of section (Notification of changes in party's officers etc.)(4) or (Registration of minor parties)(3) are not complied with in relation to any notification required to be given by the treasurer or (as the case may be) registered leader of a registered party;").

  Page 89, leave out lines 17 and 18 and insert ("any notification required to be given by the treasurer of a registered party;").
  Page 89, leave out lines 34 to 38 and insert—
  ("(a) the end of the period within which—

  (i) the notification mentioned in subsection (1)(za) or (c) was required to be given to the Commission, or

  (ii) the document mentioned in subsection (1)(a), (b), (d), (e) or (f) was required to be delivered to them,").

  Page 90, line 7, leave out from ("subsection") to ("a") in line 9 and insert ("(3)(a)").
  The noble Lord said: These amendments have already been spoken to. I beg to move.
  [Amendment No. 286 had been withdrawn from the Marshalled List.]
  Lord Bach Lord Bach moved Amendments Nos. 286A and 287:
  Page 90, line 21, leave out ("(3)(a)(i) shall be read as referring to") and insert ("(3)(a) shall be read as referring to the end of").
  Page 90, line 32, leave out ("(1)(a)") and insert ("(1)(za) or (a)").
  The noble Lord said: These amendments have already been spoken to. I beg to move.
  Clause 137, as amended, agreed to.
  Clause 138 [General offences]:
  Lord Bach Lord Bach moved Amendments Nos. 287A to 287L:
  Page 90, line 43, after ("individual") insert ("which is or is liable to be required to be produced for inspection under section 136(1), and does so").
  Page 91, line 15, at end insert—
  ("() In subsections (1) to (3) any reference to a supervised organisation or individual includes a reference to a former supervised organisation or individual.").
  Page 91, line 15, at end insert—
  ("() Subsections (1) and (3) shall apply in relation to a person who is (or has been)—

  (a) a candidate at an election (other than a local government election in Scotland), or

  (b) the election agent for such a candidate,

  as they apply in relation to a supervised individual (or a former supervised individual), except that in their application in relation to any such person any reference to any of the provisions of this Act includes a reference to any other enactment imposing any restriction or other requirement falling within section 135(1)(b).").
  Page 91, line 17, after ("is") insert ("a regulated donee,").
  260
  Page 91, leave out line 21 and insert ("or (in the case of such a party with accounting units) the central organisation of the party or any of its accounting units;").
  Page 91, line 21, at end insert—
  ("() a regulated donee which is a members association,").

  Page 91, line 24, at end insert ("a person who is (or has been)").
  Page 91, line 25, after ("party") insert ("(other than a minor party)").
  Page 91, line 25, leave out from ("or") to end of line 26 and insert ("the central organisation of such a party, the treasurer of the party,
  () in relation to any accounting unit of such a party, the registered treasurer of the unit,").

  Page 91, line 26, at end insert—
  ("() in relation to a regulated donee which is a members association, the responsible person for the purposes of Schedule 6,").

  Page 91, line 30, at end insert—
  ("() "regulated donee" and "members association" have the same meaning as in Schedule 6;").

  The noble Lord said: These amendments have already been spoken to. I beg to move.
  Clause 138, as amended, agreed to.
  Clause 139 [Inspection of Commission's registers etc.]:
  Lord Bach Lord Bach moved Amendment No. 288:
  Page 91, line 36, leave out ("21") and insert "(The new registers)").
  Lord Bach Lord Bach moved Amendment No. 288A:
  Page 92, line 14, at end insert—
  ("() Where any register falling within subsection (1) or any document falling within subsection (6) is held by the Commission in electronic form, any copy—

  (a) made available for public inspection under subsection (2), or

  (b) supplied under subsection (4),

  must be made available, or (as the case may be) supplied, in a legible form.").

  The noble Lord said: Perhaps I may tell the Committee that I am speaking also to Amendment No. 318A. These are two technical amendments to Clauses 139 and 150. Amendment No. 288A simply ensures that, where the electoral commission holds its various registers—for example, the registers of political parties—in electronic form, they must be made available to the public in a legible format. The Committee may think that that is rather a statement of the obvious but we place a similar requirement on political parties and other regulated organisations. Amendment No. 318A adds the definition of a local government election. The definition as it stands essentially covers the election of councillors. As such, it does not take into account directly elected mayors whose election is provided for in Part II of the Local Government Act 2000. The amendment plugs the gap. The principal effect of the amendment will be to apply the restrictions on the use of candidates' descriptions contained in Clause 20 to elections for the return of an elected mayor. As we discussed earlier in the

  261
  Committee's proceedings, these restrictions are an essential mechanism for bringing all organisations which put up candidates at an election within the controls on parties' income and expenditure. I beg to move.
  Clause 139, as amended, agreed to.
  Clause 140 agreed to.
  Schedule 19 [Penalties]:
  [Amendments Nos. 289 to 307 not moved.]
  Lord Bach Lord Bach moved Amendments Nos. 307A to 307C:
  Page 174, leave out lines 21 to 24.
  Page 175, line 20, column 1, leave out from ("Section") to ("without") in line 21 and insert ("(Details to appear on referendum material) (8) or (9) (printing or publishing referendum material").
  Page 175, line 22, at end insert—

  ("Section (Details to appear on material) (8) or (9) (printing or publishing election material without details of printer or publisher)

  On summary conviction: election Level 5")

  The noble Lord said: These amendments have already been spoken to. I beg to move.
  [Amendments Nos. 308 to 313 not moved.]
  Schedule 19, as amended, agreed to.
  Clauses 141 to 145 agreed to.
  Clause 146 [Orders and regulations]:
  Lord Bach Lord Bach moved Amendment No. 313A:
  Page 95, line 4, leave out ("15(6)") and insert ("(Transfer of functions of Boundary Commissions)(3)").
  [Amendments Nos. 314 and 315 not moved.]
  Lord Bach Lord Bach moved Amendments Nos. 315A to 316A:
  Page 95, line 7, at end insert—
  ("() section (Sponsorship)(4),").

  Page 95, line 8, at end insert—
  ("() section 65(1),").

  Page 95, line 12, at end insert—
  ("() paragraph 2A(4) of Schedule 6,").

  [Amendment No. 317 not moved.]
  Lord Bach Lord Bach moved Amendments Nos. 317A and 317B:
  Page 95, line 13, leave out ("or paragraph 7 of Schedule 12,") and insert—
  ("() paragraph 2A(4) of Schedule 10,
  () paragraph 7 of Schedule 12,").

  Page 95, line 14, at end insert ("; or
  ( ( ) paragraph 2A(4) of Schedule 14;").

  Clause 146, as amended, agreed to.
  Clause 147 agreed to.
  Clause 148 [Minor and consequential amendments, repeals and savings]:
  Lord Bach Lord Bach moved Amendments Nos. 317C and 317D:
  Page 95, line 37, after ("elections)") insert (", or
  (b) of provisions amending any of those provisions,").

  Page 95, line 39, leave out subsection (4).
  Clause 148, as amended, agreed to.
  Clause 149 agreed to.
  Clause 150 [General interpretation]:
  Lord Bach Lord Bach moved Amendments Nos. 317E to 319A:
  Page 96, line 12, at end insert—
  (""body", without more, means a body corporate or any combination of persons or other unincorporated association;").

  Page 96, line 13, at end insert—
  (""business" includes every trade, profession and occupation;").

  Page 96, line 24, at end insert—
  (""the Great Britain register" and "the Northern Ireland register" mean the registers of political parties referred to in section (The new registers)(2)(a) and (b) respectively;").

  Page 96, line 30, at end insert ("or an election under Part II of the Local Government Act 2000 for the return of an elected mayor").
  Page 96, line 33, at end insert—
  (""minor party" means (in accordance with section (Registration of minor parties)(1)) a party registered in the Great Britain register in pursuance of a declaration falling within section 25(1A)(d);").

  Page 97, line 7, at end insert—
  ("() References in this Act (in whatever terms) to payments out of public funds are references to any of the following, namely—

  (a) payments out of—

  (i) the Consolidated Fund of the United Kingdom, the Scottish Consolidated Fund or the Consolidated Fund of Northern Ireland, or

  (ii) money provided by Parliament or appropriated by Act of the Northern Ireland Assembly;

  (b) payments by—

  (i) any Minister of the Crown, the Scottish Ministers or any Minister within the meaning of the Northern Ireland Act 1998,

  (ii) any government department (including a Northern Ireland department) or any part of the Scottish Administration, or

  (iii) the National Assembly for Wales;

  (c) payments by the Scottish Parliamentary Corporate Body or the Northern Ireland Assembly Commission; and

  (d) payments by the Electoral Commission;

  and references in this Act (in whatever terms) to expenses met, or things provided, out of public funds are references to expenses met, or things provided, by means of any such payments.").

  The noble Lord said: These amendments have already been spoken to. I beg to move.
  Clause 150, as amended, agreed to.
  Lord Bach Lord Bach moved Amendment No. 319B:
  After Clause 150, insert the following new clause—

  Broadcasting of local items during election period.

    INTERPRETATION: DONATIONS
    (" .—(1) This section has effect for the purposes of the provisions of this Act relating to donations.
    (2) Where any provision of this Act refers to a donation for the purpose of meeting a particular kind of expenses incurred by or on behalf of a person of a particular description—

    (a) the reference includes a reference to a donation for the purpose of securing that any such expenses are not so incurred; and

    (b) a donation shall be taken to be a donation for either of those purposes if, having regard to all the circumstances, it must be reasonably assumed to be such a donation.

    (3) Subsections (4) and (5) apply to any provision of this Act which provides, in relation to a person of a particular description ("the donee"), that money spent (otherwise than by or on behalf of the donee) in paying any expenses incurred directly or indirectly by the donee is to constitute a donation to the donee.
    (4) The reference in any such provision to money so spent is a reference to money so spent by a person, other than the donee, out of his own resources (with no right to reimbursement out of the resources of the donee).
    (5) Where by virtue of any such provision any amount of money so spent constitutes a donation to the donee, the donee shall be treated as receiving an equivalent amount on the date on which the money is paid to the creditor in respect of the expenses in question.").
    Clause 151 [Short title, commencement and extent]:
    Lord Bach Lord Bach moved Amendment No. 319C:
    Page 97, line 13, leave out ("Apart from the provisions mentioned in subsection (3),") and insert ("Subject to subsections (3) and (3A),").
    [Amendments Nos. 319D and 320 not moved.]
    Lord Bach Lord Bach moved Amendments Nos. 320A to 320E:
    Page 97, line 16, leave out ("provisions referred to in subsection (2) are") and insert ("following provisions come into force on the day on which this Act is passed").
    Page 97, line 18, at end insert ("and paragraph 10(1) and (4) of Schedule 20,").
    Page 97, line 19, after ("section") insert ("and Part II of Schedule (Transitional provisions)").
    Page 97, line 21, at end insert—
    ("(3A) The following provisions come into force at the end of the period of two weeks beginning with the day on which this Act is passed—

    (a) section 32,

    (b) Part I of Schedule (Transitional provisions), and

    (c) any provision of Part II of this Act so far as necessary for the purposes of the operation of any provision of Part I of that Schedule.").

    Page 97, line 29, at end insert—
    ("() The transitional provisions contained in Schedule (Transitional provisions) shall have effect.").

    [Amendment No. 321 not moved.]
    Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 321A:
    Page 97, line 32, after ("11") insert ("and paragraphs 12 and 13 of Schedule (Transitional provisions)").
    Clause 151, as amended, agreed to.
    Schedule 20 [Minor and consequential amendments]:
    Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 321B:
    Page 177, line 22, at end insert—
    ("() In section 29 (payments by and to returning officer), for subsections (3) to (9) substitute—

    "(3) A returning officer shall be entitled to recover his charges in respect of services properly rendered, or expenses properly incurred, for or in connection with a parliamentary election if—

    (a) the services or expenses are of a kind specified in regulations made by the Electoral Commission ("the Commission") with the consent of the Treasury; and

    (b) the charges are reasonable.

    (4) Regulations under subsection (3) above may specify a maximum recoverable amount for services or expenses of any specified description and, subject to subsection (5) below, the returning officer may not recover more than that amount in respect of any such services or expenses.

    (5) In a particular case the Commission may, with the consent of the Treasury, authorise the payment of more than the specified maximum amount for any specified services or expenses if satisfied—

    (a) that it was reasonable for the returning officer concerned to render the services or incur the expenses; and

    (b) that the charges in question are reasonable.

    (6) Any regulations under subsection (3) above which specify a maximum amount for services or expenses of a particular description may provide for that amount to increase at prescribed dates, or after prescribed periods, by reference to such formula or other method of determination as may be specified in the regulations.

    (7) The amount of any charges recoverable in accordance with this section shall be paid by the Commission on an account being submitted to them; but if the Commission think fit they may, before payment, apply for the account to be taxed under the provisions of section 30 below.

    (8) Where the superannuation contributions required to be paid by a local authority in respect of any person are increased by any fee paid under this section as part of a returning officer's charges at a parliamentary election, then on an account being submitted to the Commission a sum equal to the increase shall be paid to the authority by the Commission.

    (9) On the returning officer's request for an advance on account of his charges, the Commission may make such an advance on such terms as they think fit.

    (10) The Commission may by regulations make provision as to the time when and the manner and form in which accounts are to be rendered to the Commission for the purposes of the payment of a returning officer's charges.

    (11) Any sums required by the Commission for making payments under this section shall be charged on and paid out of the Consolidated Fund."

    () In section 47(1) (loan of equipment for local elections), for "the Secretary of State" substitute "the Electoral Commission".").

    The noble Lord said: This amendment provides for the transfer to the electoral commission of the Home Secretary's functions as regards the reimbursement of expenses to returning officers. I do not believe that this amendment is controversial. I beg to move.
    Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 321C to 322B:
    Page 177, line 22, at end insert—
    ("() In section 52 (discharge of registration duties), after subsection (1) insert—
    "(1A) Without prejudice to the generality of subsection (1) above, the directions which may be given under subsection (1) include directions requiring a registration officer to maintain his registers in a specified electronic form; and any such directions may in particular specify—

    (a) the software which is to be used in connection with the maintenance of the registers in that form;

    (b) the standards in accordance with which that software is to be maintained and updated;

    (c) how information required (by or under any enactment) to be included in the registers is to be recorded and stored in that form."").

    Page 177, line 24, at end insert—
    ("() In section 201 (regulations)—

    (a) in subsection (1), omit the words from "and except" to "section 29(8)";

    (b) in subsection (2), for "section 29(8)" substitute "section 110(7)";

    (c) after subsection (2) insert—

    "(2A) Any regulations under section 110(7) above shall be subject to annulment in pursuance of a resolution of either House of Parliament."; and.
    (d) in subsection (3), after "the Secretary of State" insert ", or the Electoral Commission (in the case of any regulations made by them),". ").

    Page 177, line 34, at end insert—

  Representation of the People Regulations 1986 (S.I. 1986/1081) and Representation of the People (Scotland) Regulations 1986 (S.I. 1986/1111)
  .—(1) In regulation 99 of the Representation of the People Regulations 1986 and in regulation 97 of the Representation of the People (Scotland) Regulations 1986 (modification of provisions about expenses in the Act of 1983) —

  (a) in paragraph (1), for "subsections (3), (4), (4A), (4B), (5), (7) and (8) of section 29" substitute "subsections (3), (4), (5), (6), (7), (9) and (10) of section 29"; and

  (b) in paragraph (3), for "the Secretary of State" substitute "the Electoral Commission".

  (2) The amendments made by sub-paragraph (1) shall not be taken to prejudice the power to make regulations varying or revoking the amended provisions.").
  Page 179, line 30, at end insert—
  ("This paragraph does not include the funding of political parties for the purpose of assisting members of the Northern Ireland Assembly connected with such parties to perform their Assembly duties.").

  Page 180, line 23, leave out from beginning to ("at") in line 24 and insert ("—(1) Section 11 of that Act (revision of procedures in the light of pilot schemes) is amended as follows.
  (2)").

  Page 180, line 26, at end insert—
  ("(3) In subsection (4), for the words from "the report" onwards substitute "every report under section 10 which relates to a scheme making provision similar to that made by the order."").

  Schedule 20, as amended, agreed to.
  Schedule 21 [Repeals]:
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 322C to 322K:

  Page 180, line 45, column 3, at end insert—

  ("In section 73, subsection (4), and in subsection (6) the words from ", or pays"to "as mentioned above,".")

  Page 180, line 45, column 3, at end insert—

  ("Section 75(1B) and (1C).")

  Page 181, column 3, leave out lines 2 to 4.

  Page 181, line 4, column 3, at end insert—

  ("In section 81, subsection (4), in subsection (7) the words from "; and" onwards, and subsection (11).")

  Page 181, column 3, leave out lines 10 and 11.

  Page 181, line 12, column 3, at end insert—

  ("In section 138(1), the words from ", a copy of which" onwards.")

  Page 181, line 12, column 3, at end insert—

  ("In section 138(1), the words from ", a copy of which" onwards.")

  Page 181, line 15, column 3, leave out ("to (4)").

  Page 181, leave out lines 18 to 20.

  Page 181, line 20, column 3, at end insert—

  ("In section 201(1), the words from "and except" to "section 29(8)".")

  [Amendment No. 322L had been renumbered as Amendment No. 322FA.]
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 322M to 322V:

  Page 181, line 25, column 3, at end insert—

  (", and (b) in the form of declarations, the words in paragraph 3 "in relation to my [the candidate's] personal expenses" and paragraph 4.")

  Page 181, line 26, column 3, leave out ("and (4)") and insert ("to (5)").

  Page 181, line 26, column 3, at end insert—

  ("In Schedule 3, paragraphs 6 and 7.")

  Page 181, line 26, column 3, at end insert—

  ("In Schedule 4, paragraph 35.")

  Page 181, line 29, column 3, at end insert—

  ("In Schedule 2, in paragraph 8, the words "for which there is a Boundary Commission".")

  Page 181, line 32, at end insert—

  ("1991 c. 11.

  Representation of the People Act 1991.

  The whole Act.")

  Page 181, line 38, column 3, leave out from ("2(1)") to end of line 42 and insert ("to (3).").

  Page 181, line 43, at end insert—

  ("1996 c. 55.

  Broadcasting Act, 1996.

  In Schedule 10, paragraph 29, and in paragraph 30 "or 29".")

  Page 181, line 52, at end insert—

  ("1999 c. 29.

  Greater London Authority Act 1999.

  In Schedule 3, paragraphs 16, 19(4), 21, 24(5), 28, 31 and 35.

  2000 c. 2.

  Representation of the People Act 2000.

  In Schedule 6, paragraph 4.")

  Schedule 21, as amended, agreed to.
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 322W:
  After Schedule 21, insert the following new schedule—

  Representation of the People Regulations 1986 (S.I. 1986/1081) and Representation of the People (Scotland) Regulations 1986 (S.I. 1986/1111)

  Interpretation of Part I
  1. In this Part of this Schedule—

  "the 1998 Act" means the Registration of Political Parties Act 1998;

  "the appointed day" means the appointed day for the purposes of Part II of this Act;

  "the compliance period" means the period of six weeks beginning with the initial date;

  "emblem", in relation to a party, means an emblem to be used by the party on ballot papers;

  "the initial date" means the date falling 14 days after the day on which this Act is passed;

  "the new registers" means the Great Britain register and the Northern Ireland register.

  Declaration for purposes of section 25
  2.—(1) This paragraph applies to any party registered under the 1998 Act on the initial date.
  (2) Subject to sub-paragraph (7), the party must within the compliance period send to the Commission a declaration falling within section 25(1A).
  (3) In connection with any such declaration, any reference in section 25(1A) or (1B) to a party's applying to be registered shall have effect in relation to the party making the declaration as a reference to its seeking to be registered under Part II of this Act in accordance with paragraph 4(2).
  (4) Where the party sends the Commission a declaration falling within section 25(1A)(a), the party must at the same time send to them, with a view to the registration in the Northern Ireland register of a separate Northern Ireland party—

  (a) such information as would, by virtue of Schedule 1 to the 1998 Act, be required to be provided in connection with an application by the Northern Ireland party to be registered under that Act;

  (b) a notification as to whether the party wishes to be registered in the Northern Ireland register under its existing registered name or under that name with an addition permitted by sub-paragraph (5); and

  (c) a notification as to whether the party wishes—

  (i) any emblem or emblems already registered in respect of it under the 1998 Act to be registered in respect of the Northern Ireland party in that register,

  (ii) any emblem or emblems not so registered under the 1998 Act, but shown in the notification, to be registered in respect of the Northern Ireland party in that register (whether in addition to any emblem or emblems falling within sub-paragraph (i) or otherwise).

  (5) For the purposes of sub-paragraph (4)(b) any one of the following, namely "Northern Ireland", "Northern Irish", "Ulster", "Ireland" or "Irish" may be added to a party's existing registered name, at such point as the party may specify in its notification.
  (6) For the purposes of sub-paragraph (4)(c) the total number of emblems whose registration may be sought in a notification under that provision is three.
  (7) If the party within the compliance period sends to the Commission a declaration that the party does not intend to contest any relevant election on or after the appointed day—

  (a) nothing in sub-paragraphs (2) to (6) or in paragraphs 3 to 5 shall have effect in relation to the party; and

  (b) the party's registration under the 1998 Act shall terminate on the appointed day.

  (8) References to a party of any description in paragraph 3(1), 4(1) or 5(1) accordingly do not include a party falling within subparagraph (7).

  Draft scheme for purposes of section 23
  3.—(1) This paragraph applies to any party registered under the 1998 Act on the initial date.
  (2) The party must within the compliance period send to the Commission—

  (a) a copy of the party's constitution (within the meaning of section 23); and

  (b) a draft of the scheme which the party proposes, to adopt for the purposes of section 23 if approved by the Commission under that section;

  and subsections (2) to (6) of that section shall apply in connection with any such scheme and its approval by the Commission.
  (3) The party must also within the compliance period give a notification to the Commission under this sub-paragraph.
  (4) A notification under sub-paragraph (3) must—

  (a) give the name and home address of a person to be registered under Part II of this Act as the party's treasurer; and

  (b) be signed by the person registered under the 1998 Act as leader or nominating officer of the party and by the proposed registered treasurer mentioned in paragraph (a).

  (5) Where the party would on registration under Part II of this Act be a party with accounting units, a notification under subparagraph (3) must also give in relation to each accounting unit—

  (a) the name of the accounting unit and of its treasurer, and

  (b) the address of its headquarters or, if it has no headquarters, an address to which communications to the accounting unit may be sent.

  (6) A notification under sub-paragraph (3) may be signed by the same person in his capacity as registered leader or nominating officer and in his capacity as proposed registered treasurer, but in that case it must be apparent from the notification that he is signing it in both of those capacities.
  (7) Where the party sends the Commission a declaration falling within section 25(1A)(a), the provisions of sub-paragraphs (2) to (6) shall be read as applying separately in relation to—

  (a) the party to be registered in the Great Britain register, and

  (b) the party to be registered in the Northern Ireland register.

  Registration under Part II of this Act as from appointed day
  4.—(1) This paragraph applies where a party registered under the 1998 Act has complied with the provisions of paragraphs 2 and 3 so far as applicable to the party.
  (2) The Commission shall secure that, as from the appointed day, one (or each) of the new registers contains such entry in respect of the party (or the two parties mentioned in paragraph 3(7)) as the Commission consider appropriate to reflect—

  (a) the party's existing entry in the register maintained under the 1998 Act and the date when the party was first registered under that Act;

  (b) the declaration sent to the Commission by the party in pursuance of paragraph 2(2);

  (c) any information or notification sent to them in pursuance of paragraph 2(4); and

  (d) the notification given to them in pursuance of paragraph 3(3).

  (3) In connection with the registration in the Northern Ireland register (in accordance with sub-paragraph (2)) of any emblem shown in a notification by a party in pursuance of paragraph 2(4)(c)(ii)—

  (a) section 26(2) shall apply (with any necessary modifications) as it applies in connection with the registration of any emblem in pursuance of a request under section 26, but

  (b) for this purpose any emblem which on the initial date is registered under the 1998 Act in respect of any other party (except one falling within paragraph 2(7)) shall be treated as if it were already registered in the Northern Ireland register.

  (4) As from the appointed day the draft scheme sent to the Commission in pursuance of paragraph 3(2) shall be treated for the purposes of this Act as if it were a scheme approved by the Commission and adopted by the party under section 23 until—

  (a) such time as the scheme, or any revised scheme submitted under subsection (6) of that section, is in fact approved by the Commission under that section, or

  (b) the end of the period of nine months beginning immediately after the end of the compliance period (or such longer period as the Commission may determine in relation to the party),

  whichever is the earlier.
  (5) If the draft scheme, or any such revised scheme, has not been so approved by the end of the period which applies for the purposes of sub-paragraph (4)(b) —

  (a) the Commission shall forthwith send the party a copy of the scheme incorporating such modifications as the Commission consider appropriate; and

  (b) the scheme, as so modified, shall be treated for the purposes of this Act as if it had been approved by the Commission, and adopted by the party, under section 23.

  (6) Sections 27(1)(d) shall apply in relation to a party registered in accordance with sub-paragraph (2) as if the reference to the time when the party applied for registration were a reference to the appointed day.

  Failure to comply with paragraph 2 or 3
  5.—(1) This paragraph applies where a party registered under the 1998 Act on the initial date fails to send or give to the Commission by the end of the compliance period one or more of the following things, namely—

  (a) any declaration required under paragraph 2(2);

  (b) any information or notification required under paragraph 2(4);

  (c) any document required under paragraph 3(2);

  (d) any notification required under paragraph 3(3).

  (2) In this paragraph—

  (a) "the outstanding material" means the thing or things which as mentioned in sub-paragraph (1) was or were not sent or given to the Commission by the end of the compliance period;

  (b) "the transitional period" means the period of three months beginning immediately after the end of the compliance period;

  (c) "the protected period" means the period beginning with the appointed day and ending—

  (i) at the end of the transitional period, or

  (ii) in a case where sub-paragraph (4) applies, on the date determined by the Commission under that sub-paragraph.

  (3) During so much of the transitional period as falls before the appointed day, the party shall be treated for all purposes relating to elections or referendums as if it were not registered under the 1998 Act; and on that day the party's registration under that Act shall terminate without being replaced by any such registration under Part II of this Act as is mentioned in paragraph 4(2).
  (4) However, if the Commission receive the outstanding material before the end of the transitional period, paragraph 4(2) shall have effect so as require the Commission to secure that any such entry as is mentioned in that provision is made in one (or each) of the new registers with effect from such date (not earlier than the appointed day) as they may determine.
  (5) During the protected period sections 25(2) and 26(2) shall have effect as if—

  (a) the name of the party registered under the 1998 Act on the initial date and any emblems so registered in respect of it were registered in respect of the party in each of the new registers, and

  (b) any such registration in the Great Britain register was in respect of each of England, Scotland and Wales.

  (6) In a case where sub-paragraph (4) applies—

  (a) section 23(5) and (6) shall apply in connection with the approval of the party's draft scheme by the Commission; and

  (b) paragraph 4(4) and (5) above shall also so apply, except that in paragraph 4(4)(b) the reference to nine months beginning immediately after the end of the compliance period shall be read as a reference to six months beginning immediately after the end of the protected period.

  Exercise of functions by person appointed as Commission's chief executive
  6. In relation to any time when the functions of the Commission with respect to the receipt of documents or information falling to be sent or given to the Commission under this Schedule are being exercised by a person appointed as the Commission's chief executive under paragraph 11(7) of Schedule 1, references in this Schedule to the Commission, in the context of the sending or giving of such documents or information to them, shall be construed as references to the person so appointed.

  Termination of registration functions of registrar of companies
  7.—(1) The registration functions of the registrar under the 1998 Act shall terminate on the initial date.
  (2) Accordingly, as from that date, the registrar shall not—

  (a) make any new entry in his register, or

  (b) alter or remove any entry already contained in his register,

  and no application or notice may be made or given to him under any provision of that Act.
  (3) Where an application has been made to the registrar under any such provision before the initial date and the application has not been determined by that date, the registrar shall not take any steps (or, as the case may be, any further steps) on or after that date to deal with the application.
  (4) Nothing in section 7 of the 1998 Act shall apply at any time on or after the initial date in relation to a party registered under that Act; and in particular a party's registration under that Act shall not lapse at any such time by virtue of that section.
  (5) The registrar shall provide the Commission with such information and assistance as they reasonably require for the purpose of discharging their duty under paragraph 4(2); and where any information relating to a party registered under the 1998 Act—

  (a) is held by the registrar in connection with the registration of the party under that Act, but

  (b) is not contained in the party's entry in his register,

  the registrar shall provide the Commission with that information in order that it may be held by them, as from the appointed day, in connection with the registration of the party in one or other of the new registers.
  (6) In this paragraph "the registrar" means the registrar of companies (within the meaning of Part II of this Act), and any reference to "his" register is a reference to the register maintained by the registrar under the 1998 Act.

  Termination of registration functions of registrar of companies

  Appointment of Electoral Commissioners
  8. For the purposes of section 3(2)—

  (a) any agreement to a proposed motion for an Address under section 3(1) which has been signified by the Speaker of the House of Commons before the day on which this Act is passed shall be as effective as if signified on or after that day; and

  (b) any consultation with respect to such a motion which has been carried out before that day with such a person as is mentioned in section 3(2)(b) shall be as effective as if carried out on or after that day.

  Orders specifying organisations which are not to count as accounting units
  9. The requirement in section 23(8)(c) for any order under that provision to be made on the recommendation of the Commission shall not apply in relation to any such order which is made before the end of the period of three months beginning with the day on which this Act is passed.
  Orders prohibiting use of certain words in parties' registered names
  10. The requirement in section 25(2)(f) for any order under that provision to be made after consultation with the Commission shall not apply in relation to any such order which is made before the end of the period of three months beginning with the day on which this Act is passed.

  Confirmation of registered particulars
  11.—(1) This paragraph applies to a party which is registered under Part II of this Act at the end of the period of nine months beginning with the appointed day.
  (2) The treasurer of the party shall deliver to the Commission a notification which—

  (a) complies with the requirements of section 28(2) and (3) (as modified by sub-paragraphs (3) and (4)), and

  (b) is accompanied by any fee prescribed by order made by the Secretary of State,

  within the period beginning one month before and ending three months after the first anniversary of the appointed day.
  (3) In the application of section 28(2)(a) in accordance with sub-paragraph (2), the reference to the relevant time shall be read as a reference to the time when the party applied for registration or, in the case of a party registered by virtue of paragraph 4(2), the appointed day.
  (4) In the application of section 28(3) in accordance with subparagraph (2), the reference to the relevant time shall be read as a reference to the time when the party applied for registration or, in the case of a party registered by virtue of paragraph 4(2), the time when the documents required under paragraph 3(2) were sent to the Commission.
  (5) If the notification required by virtue of sub-paragraph (2) is not delivered before the end of the period mentioned in that subparagraph, the person who was the treasurer of the party immediately before the end of that period shall be guilty of an offence and shall be liable to the same punishment as if he were guilty of an offence under section 43(1)(b).
  (6) It is a defence for a person charged with an offence under sub-paragraph (5) to prove that he took all reasonable steps, and exercised all due diligence, to ensure that the notification required by virtue of sub-paragraph (2) would be delivered before the end of the period mentioned in that sub-paragraph.
  (7) Any notification delivered under sub-paragraph (2) shall be treated, for the purposes of section 28(4)(b), as a notification given under section 28.
  (8) In this paragraph "the appointed day" means the appointed day for the purposes of Part II of this Act.

  Control of political donations by companies
  12.—(1) The provisions of Part XA of the Companies Act 1985 inserted by section 132(1) of this Act shall not apply to a company (within the meaning of that Act) in relation to any time falling before the relevant date for the company.
  (2) For the purposes of this paragraph the relevant date for a company is—

  (a) if an annual general meeting of the company is held within the first commencement year, the date of that meeting; and

  (b) otherwise, the date immediately following the end of that year.

  (3) In sub-paragraph (2) "the first commencement year" means the period of 12 months beginning with the date of the commencement of section 132(1).

  Disclosure of political donations and expenditure in directors' report
  13. The provisions of Schedule 7 to the Companies Act 1985 substituted by section 133 of this Act shall, in the case of any company (within the meaning of that Act), apply only in relation to directors' reports for financial years beginning on or after the first anniversary of the date which is the relevant date for the company for the purposes of paragraph 12.").
  In the Title:
  [Amendments Nos. 323 and 324 not moved.]
  Lord Bach Lord Bach moved Amendment No. 325:
  Line 8, after ("1985;") insert ("to make pre-consolidation amendments relating to European Parliamentary elections;").
  The noble Lord said: This amendment was spoken to with Amendment No. 280B. I beg to move.
  Title, as amended, agreed to.
  House resumed: Bill reported with amendments.
  Lord Carter: My Lords, before we move on to the next business, I should like to offer my sincere thanks to the Opposition Chief Whip, the Opposition Front Bench, the Liberal Democrat Front Bench and the Back Benches of all parties. We reached the target that we were hoping for, which leaves us time to make progress on the next Bill. I am truly grateful for the cooperation that has been demonstrated by the whole House.

Freedom of Information Bill
9.12 p.m.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Elton) in the Chair.]
Clause 28 [Investigations and proceedings conducted by public authorities]:
9.15 p.m.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 157:
Page 15, line 42, leave out ("in the United Kingdom or elsewhere").
The noble and learned Lord said: In moving Amendment No. 157, I shall speak also to Amendment No. 158.
Amendment No. 158 would add both,
"proceedings on dealing summarily with a charge"
under the three service Acts referred to, and,
"proceedings before a court established by",
specified sections of those Acts, to the definition of "criminal proceedings".
The amendments are necessary to deal with the provisions of the Armed Forces Discipline Act. That Act amends the three service Acts to provide for summary appeal courts, which will hear appeals from findings made and punishments awarded by commanding officers on dealing summarily with charges. The amendments ensure that such proceedings are covered by Clause 28.
I should like to take this opportunity to say a few words about Clause 28(1)(b). In our discussions last Thursday, I made the point that non-criminal investigations into safety matters or accidents, for example, were not covered by the class exemption in Clause 28. That is, of course, correct. However, subsection (1)(b) includes investigations by an authority into matters which may lead to a decision being taken by that authority to institute criminal proceedings, even if no such proceedings are eventually taken. To cite two examples: accident investigations where criminal proceedings are a possible outcome, or environmental health reports into compliance with food safety, would fall within this subsection.
Concern has been expressed that this would mean that the public may be denied information about serious health issues or the causes of accidents, even where criminal proceedings are not taken. I do not believe that this will be the case as the public interest test in new Clause 2 of the Bill would come into play. If there were no criminal prosecution in the case, I am sure that the public interest in knowing of health risks or the causes of accidents would outweigh the public interest in maintaining exemption. I am satisfied that the Bill will provide the correct outcome in such cases. But, in the spirit of the debate on this clause, I shall reflect further on this point.
While the Bill was in Committee in another place on Clause 28, a list of public authorities with a duty to conduct prosecutions was placed in the House of Commons Library. I shall place a similar list in the Library here.
Returning to this group of amendments, Amendment No. 157 would remove the term,
"in the United Kingdom or elsewhere",
from the part of the definition which deals with courts martial. It is clear from the context that proceedings cannot be limited to those in the United Kingdom, and so the words are unnecessary. I beg to move.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 158:
Page 15, line 46, at end insert—
("() proceedings on dealing summarily with a charge under the Army Act 1955 or the Air Force Act 1955 or on summary trial under the Naval Discipline Act 1957,
() proceedings before a court established by section 83ZA of the Army Act 1955, section 83ZA of the Air Force Act 1955 or section 52FF of the Naval Discipline Act 1957 (summary appeal courts),").

Clause 28, as amended, agreed to.
Clause 29 [Law enforcement]:
[Amendments Nos. 159 to 163 not moved.]
Clause 29 agreed to.
Clause 30 [Court records, etc.]:
[Amendments Nos. 164 and 165 not moved.]
Clause 30 agreed to.
Clause 31 [Audit functions]:
[Amendment No. 166 not moved.]
[Amendment No. 166A had been withdrawn from the Marshalled List.]
Clause 31 agreed to.
Clause 32 agreed to.
Clause 33 [Formulation of government policy, etc.]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 167:
Page 18, line 34, at beginning insert ("Subject to subsection (1A),").
The noble Lord said: In moving Amendment No. 167, I shall speak also to Amendments Nos. 169 to 171 and 175.
At the moment the Bill makes provision for a class exemption on policy formulation. This means that any information that falls within this category is covered by the exemption whether or not its release would be harmful. As the decision on whether exempt information should be released in the public interest is ultimately made by the public authority or the Minister, this exemption would mean that access to this kind of information could be severely limited.
Indeed, Clause 33 is a sweeping exemption for all information relating to the formulation of any policy. It is not restricted to Civil Service advice but includes the background information used in preparing policy, including the underlying facts and their analysis. There will be no right to know about purely descriptive reports of existing practices, research reports, evidence of health hazards, assumptions about wage or inflation levels used in calculating costs, studies of overseas practices, consultants' findings or supporting data showing whether official assertions are realistic or not. Departments would not have to confirm even whether any such information existed. Any request for information about the justification for a government policy could be refused under this exemption.
In contrast, the openness code, to which I have referred on previous occasions, introduced by the Conservative government in 1994, contains three relevant positions. It requires departments to publish an analysis of the facts underlying policy decisions and proposals once decisions are announced; it allows policy-related material to be held only if disclosure would harm the frankness and candour of internal discussion; and it requires information, the disclosure of which could harm frank discussion, to be disclosed if that harm is outweighed by the public interest in openness. However, under the Bill, there is no requirement to publish the facts and analysis behind government decisions. The relevant exemption contains no test of harm. The sole basis for any disclosure will be the Bill's public interest test. Under the code, this is a further obstacle to the withholding of information. Under the Bill, it may allow objections to be raised to the most elementary disclosure. These amendments introduce a harm test, changing the exemption from a class exemption to a context exemption. This means that information would be covered by the exemption only if it was proved that release would cause harm.
It seems surprising that the Government are backing away from the code of practice and from their own White Paper. But that is usual when we are discussing this Bill. It gives the Minister carte blanche to deny access to information that is innocuous and uncontroversial. It could also mean that information that is currently available would actually be made secret. That is unacceptable. With this Bill the Government are taking away rights to information rather than ensuring them. I have no doubt that other Members of the Committee will wish to speak to this important series of amendments. I beg to move.
Lord Archer of Sandwell: The comments of the noble Lord were remarkable in their moderation in relation to Clause 33.
Lord Mackay of Ardbrecknish: That is probably because I have been speaking on the political parties Bill for the past six hours!
Lord Archer of Sandwell: My noble and learned friend must be thankful for small mercies!
In its present form, the clause falls foul of virtually every principle in the book. It is not wholly clear why the various amendments relating to Clause 33 are not grouped together. It fails as a package, and addressing its defects one at a time—as we are condemned to do—is rather like trying to remove a pile of dead leaves with chopsticks.
Clause 33 has the rubric:
"Formulation of government policy, etc."
The exemption is of a number of categories. The one that possibly attracts the greatest criticism is that contained in subsection (1)(a). There is room for argument about the others, but they are marginal to what is at issue. Subsection (1)(a) sits rather oddly with the other paragraphs, (b) to (d). They are about the kinds of information which relate to the formulation of policy. But paragraph (a) relates to all information regarding policy. It is a blanket exemption, as the noble Lord said—and in three ways.
First, there is no distinction as to the source of the information, whether it is information about what happened in the department during the policy discussions, or information about the state of affairs in the industry, area or social situation which is the subject of the policy. Any information, whatever its nature or source, is within the net if it is held by a government department and if it relates to the formulation or development of policy. A letter to a Minister from a non-governmental organisation or a trade association containing information about the need for a certain course of action, or asking the Minister to take the action, all fall within the blanket exemption.
Secondly, as the noble Lord, Lord Mackay, pointed out, there is no harm test. Information is exempt whether or not its publication would damage the policy-making process.

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Thirdly, there is no attempt to distinguish between the kinds of information. There is a whole history of distinctions between information about recommendations and factual information, statistics, analysis and all other forms of information, as we shall discuss shortly. So I am slightly surprised that the criticisms are not grouped for the purpose of the debate, because they are very much a package.
If the distinction is made about the kind of information, it is easier to discuss whether harm will result from its publication. However, it seems that we are to debate the criticisms in isolation. For the present, we are debating the absence of a harm test. This is a long way from the White Paper, which expressly said:
"We are prepared to expose government information at all levels to freedom of information legislation".
It went on to add that information about policy discussions would be disclosed, subject to a harm test.
In our report, the Select Committee addressed the whole principle of providing exemptions by category, instead of by reference to the damage that would follow from the disclosure. We pointed out that this is a retreat from the White Paper, and even, as the noble Lord pointed out, from the existing code. If the Government really intend to let go of nurse's hand and stride out into a world of openness and transparency, this clause is their opportunity to send out that signal.
Lord Norton of Louth: I rise to reinforce the points made by my noble friend and the noble and learned Lord, Lord Archer of Sandwell. Rather like the noble and learned Lord, I am at a loss to understand why all the amendments under this clause have not been grouped together and why they have been disaggregated in this way. It strikes me that there is a clear and logical connection between them and, therefore, it would be appropriate to speak to them at the same time.
I wish to speak to Amendment No. 169. As the noble and learned Lord said, the present clause moves away from both the White Paper and the existing code of practice, which I understand has been working rather well. Therefore, can the Minister tell us to what extent the present clause is an improvement on the situation created under the code? In what way does the clause improve it? As I read it, the clause actually represents a step backwards from the code. Amendment No. 172, tabled in the name of the Minister, does not bring the situation up to the present level.
As far as I can see, the code appears to have worked reasonably well. However, if I am wrong, perhaps the Minister can explain in what way it is not working. As has been mentioned, this is a class exemption; the only test will be the public interest test. I should have thought that there is a particular problem here in that respect. If you raise that, it will take some time if you appeal the public interest test. Therefore, it may perhaps be some way down the road before you receive the information, by which time the decision may have been taken and the material will not be of as much use
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as it would have been if it had been available at the time it was researched. I cannot see how the clause represents an improvement; I believe that it represents a step backwards. I completely agree with what has been said by noble friend and the noble and learned Lord, Lord Archer of Sandwell.
Lord Goodhart: I shall speak very briefly on this issue. I support the remarks made by previous speakers. I, too, echo the words of the noble and learned Lord, Lord Archer, and the noble Lord, Lord Norton of Louth, that it would have been more appropriate to discuss all the amendments to Clause 33 together, because they make up a package. Indeed, I shall be brief on this group because I shall have rather more to say on the next group of amendments dealing with factual information.
It is quite clear that Clause 33 as it now stands is one of the most objectionable provisions left in the Bill. It plainly requires a harm test to make it acceptable, as well as other changes that we shall be considering shortly. It seems to me that this represents a step backwards, both from the code and from the White Paper. Therefore, I very much hope that the Government will see their way to changing their view on the subject of these amendments.
Lord Williamson of Horton: We are dealing here with a most important point, which deals specifically with the class exemption in Clause 33 for information held by a government department, if it relates to the formulation or the development of government policy. It cannot be disputed that this is a very wide exemption. Indeed, it has been described by the Campaign for Freedom of Information as, "a gigantic class exemption" because, as the Bill currently stands, it is not limited to Civil Service advice but covers all information relating to policy.
I understand that there is a safety valve in that under Clause 13(4)(b), the public authority will make the information available if it decides that the public interest, in disclosing the information, outweighs the public interest in maintaining the exemption in question. Clause 13(5) requires the public authority to,
"have regard to the public interest in communicating to the applicant factual information which has been used, or is intended to be used, to provide an informed background to decision-taking".
I should like to see the class exemption in Clause 33 more restricted so that more information would be available to the public. I believe that my views are rather liberal and perhaps even more so than those of the Liberal Democrats, although my views are not more democratic. I do not wish to go into the general point about exemption as a whole. In such a contest between David and Goliath, Goliath is odds-on to win.
I return to the amendments themselves and follow the grouping, which has been the subject of some complaint. The exemption amendments deal with the harm or prejudice test. The question is whether or not we should have a harm test. We should have one. I believe that it can be operated successfully. Of the

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various amendments in the Marshalled List from the noble Lord. Lord Mackay of Ardbrecknish, I favour a harm test which relates to the phrase,
"would, or would be likely to, prejudice".
I do not know how one would build that in from the present Amendment No. 170. I prefer that to the harm test which states that it,
"would harm the frankness and candour of … discussion".
I make that point because I believe that it would be easier to operate such a system if it were based on the word "prejudice" rather than on "frankness and candour" which seems to me to leave a certain amount of room for manoeuvre and which could be exploited in the use of that amended exemption.
Of the proposed amendments, I assume that they have been tabled on the same principle used in the football pools; namely, perm three of any four. I would perm them in favour of those which relate to the harm test based on prejudice in one way or another. I am sure that we shall return shortly to the other question as to whether there will be a specific arrangement for factual material, but I leave that to the second group of amendments.
9.30 p.m.
Lord Lucas: Surely this is the absolute heart of the Bill. Here we have a Government who say that they want much more openness in public affairs, but when we reach the part of the Bill where their own affairs are concerned, they are quite clearly determined to stay rooted to the spot and even to go backwards. It is all part of the code of practice, particularly the second paragraph, which is a wonderful piece of "Sir Humphreyism", expressing in every word the image of moving forward, but clearly remaining absolutely where the Government stand at the moment and putting off the possibility of any change into the far distant future.
If the Government wish to be taken seriously on this Bill and want the support of their own Back-Benchers, let alone that of Members of the Committee on these Benches, they must show that they are prepared to lead by example. We must have recognition by the Government that freedom of information means greater openness. In the operation of this part of the Bill, it must be clear that there is the prospect of getting better information, certainly information on which the Government are basing their decisions and government decisions generally.
It is a subject to which we shall return to as a House on Thursday when we debate the BSE report. We see from that the consequences of the Government remaining closed to the inspection of so much of their decision-making and the basis on which they made their decisions was not made available to the public. Ministers must have access to the information. Surely, they must see from that that it is essential for greater openness to flow from this Bill.
Certainly this Chamber understands that if we do nothing else with the Bill, that is what we must achieve. We must make government information more open and more available so that the decisions which
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government take are better informed and more accountable. There are, of course, various ways of doing this. It may be that a harm test in some form is part of it. It may be that the amendments we are to debate in the next group form part of it. But one way or another we must move; otherwise, we are leaving a Bill in which the lead horse is facing the wrong direction. That really will not do.
Lord Armstrong of Ilminster: I intervene only to say that I think that the clause as it stands is about as good as you can get it in this respect. I think that phrases such as,
"harm the frankness and candour of internal discussion"
leave a great deal too much open to argument and doubt. I remain strongly of the view which I expressed before in debates on the Bill; namely, that it is not possible to conduct government business as it were in a goldfish bowl. Therefore I support the clause as drafted.
Lord Brennan: Many on this side of the Committee have approached the Bill in the hope that it would improve the level of public knowledge on matters concerning their health and safety. It is in that arena that I share the concern expressed by many of my noble friends about subsection (1)(a). If I understand it correctly, it means that there will be no right to know about the purely descriptive reports of existing practice, to find out about research reports or to gain access to evidence on health hazards and therefore no means of testing the validity of government and Civil Service conclusions on matters concerning the safety and health of the public. I invite the Minister either on this occasion or at Report stage to indicate in what regards the existing code under which these 'natters are open has not worked. If it has worked, why change it?
I invite the Government to note—furnished as I am with information provided by the Campaign for Freedom of Information—the paradoxes that are likely to arise under subsection (1)(a). The information I mentioned gives three examples which I believe merit debate in the Chamber. First, since the Government came to office they have continued to publish the minutes of monthly meetings between the Chancellor of the Exchequer and the Bank of England. One cannot imagine any more sensitive area of economic and financial information which is regularly dispersed to the public without apparent damage. The other day we discussed the potential differences that are likely to arise between the practice of this Chamber under this Bill and the practices in Scotland and Wales. I note that the Welsh Assembly publishes its cabinet minutes six weeks after the discussions take place without editing them. Has there been damage? If there has, let us know what it is. If there has not, why should subsection (1)(a) be so wide-ranging?
I return to my opening remarks on safety. The Food Standards Agency has been encouraged to publish its advice to Ministers and has been given express statutory authority to do so. That is to be commended. I suggest that the same spirit ought to influence government. If we should know the advice of the Food

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Standards Agency, why should we not know what the Government propose in response to that agency? On the issues of health and safety the Bill must be seen to serve a new purpose.
Lord Borrie: I apologise to the Committee for not being present at the beginning of the debate on the amendment. I broadly support the amendment of the noble Lord, Lord Mackay of Ardbrecknish.
I am concerned that the assumption underlying Clause 33 as drafted is that somehow it is invariably against the public interest for information as to the formulation of government policy to be disclosed to the public. I suggest that that disclosure of such information can often be desirable especially to enable consultation with the public to take place and thereby to improve the quality of government decision making.
Information as to the formulation of government policy should be exempted from disclosure only if harm can be demonstrated to the frankness and candour of internal discussion, as Amendment No. 169 in the name of the noble Lord, Lord Mackay, proposes.
I illustrate my argument by reference to a High Court decision in April this year. A charitable body, Public Concern at Work, of which I am a patron, was successful in obtaining judgment which entitled the public and this charity access to a summary or copy of claims made under the Public Interest Disclosure Act so that it could monitor the legislation of which it had been the principal sponsor. The High Court ordered that the public should have access to such information, stressing that open justice should apply as much to employment tribunals as it does to the ordinary courts. In other words, litigation should be subject to critical scrutiny.
Three months later, in July (running into August) this year, the Government made regulations to override the High Court decision and remove the public's right to know the gist of the decisions of the employment tribunals. There was no consultation before this policy was formulated. The Minister's response to expressions of concern from the charity gave three reasons for the regulations overturning the High Court decisions. The three reasons for overriding the decision were respectively that the arguments were factually wrong; legally wrong; and disregarded the High Court's view as to the merits of open justice.
I suggest that had there been discussion involving not just the charity with which I am concerned but other interested bodies—trade unions, the CBI and so on—those errors could have been readily corrected. In the scale of things, my illustration is a fairly minor matter of policy. However, I put it forward because it demonstrates how poorly constructed formulation of policy made in secret during the parliamentary Recess may involve a quality of decision making which leaves
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much to be desired; and I suggest that it was worse because policy was formulated without any disclosure of information or consultation.
Lord Falconer of Thoroton: This is an important clause in the Bill. It has been the subject of considerable debate. The Government believe strongly that information relating to the formulation of government policy, ministerial communications, the operation of ministerial private offices and advice by the Law Officers must be properly protected. The Government believe that a careful balance between the rights of access to information, privacy, confidentiality and the Government's need for room to think and plan needs to be struck.
I should make it clear that the purpose of this Bill is to increase openness to Government. As I made clear at the beginning of the Committee stage, what is required is a culture change, and this legislation is an important contributor to the culture change. I should also make clear that many people on both sides of the debate consider that it is appropriate that policy making should not take place in a goldfish bowl: that there should be a process which allows Ministers, public authorities and civil servants to exchange views in a way that they feel will be private to give them that space to think and make decisions.
The question is: how does one achieve that appropriate space consistent with the desire for greater openness and greater freedom of information? That is the issue that we addressed in this Bill. We conceived that the best way to do that was by Clause 33 providing a class exemption in relation to the interests identified in Clause 33(1) but also with the public interest test in relation to what is now Clause 2. In that way, when you are considering what to disclose you do not have to make fine distinctions about what is a fact and what is an opinion. That will be covered by the exemption, as long as it relates to policy formulation or any of the other interests in Clause 33 (1). But then you balance the public interest in disclosure against the public interest in maintaining the exemption. The test for the public authority is quite simple when it is deciding whether or not to disclose under Clause 2. Is the public interest in knowing this information greater than the need to preserve the exemption to provide that space in which Government can take decisions?
I do not think that is very far from an approach that most noble Lords would regard as an acceptable approach. It is clear, it avoids fine legal distinctions and it comes to a result we would all regard as desirable. Amendment No. 170 would introduce a harm test in place of the present class exemption in Clause 33. That introduction would mean that the difficult questions, the uncomfortable options and the unthinkable scenarios would not be debated as frequently or as clearly. Governance would suffer. That is why a class exemption rather than a harm test is the right way to achieve a balance for good and open government.
This does not mean matters on internal discussions about, say, national emergencies. It is conceivable that a government receives from a pressure group a

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proposal for a policy change that would be quite unacceptable for whatever reason. It would still be necessary for officials, including possibly law officers, to set down a reasoned analysis of the effects of the proposal and the reasons for rejecting it. It would cause unwarranted public alarm simply to learn that such a proposal was under consideration, even though the government had concluded at an early stage that there was no prospect of its becoming government policy.
Amendments Nos. 167, 171 and 175, to which the noble Lord, Lord Mackay, has also spoken, seek to move from a class exemption to one based on a harm test, although in this case the test he proposes is one of substantial prejudice to the formulation or effective implementation of present or future government policy. Within that overall prescription, this amendment would provide separately that the test of substantial prejudice would itself become relevant only if the disclosure of information relating to ministerial communications would "materially detriment the frankness and candour of those communications".
At the risk of repeating myself, let me say again that the Government believe that the disclosure of certain types of information, such as ministerial communications, Cabinet papers and minutes would always he likely to prejudice the effective conduct of public affairs. That is why the Bill provides a class exemption for the interests set out in Clause 33(1). I will not go over the arguments about substantial prejudice because we have discussed them already.
I turn now to Amendment No. 169, which proposes a slightly different approach although it is again linked to a harm test. It would substitute for the present class exemption an exemption in respect of internal discussions, which would include,
"proceedings of Cabinets and Cabinet committees; internal opinion … projections and assumptions relating to internal policy analysis … [and] confidential communications between departments".
Perhaps I may say just a word about the code of practice and compare it with the Freedom of Information Bill. The code of practice is discretionary; it is a policy statement. It creates no statutory rights. Its enforcement mechanism is the ombudsman. The ombudsman's views are not binding but the commissioner's decisions will be. The Bill's coverage is vastly wider than the code. The code refers only to central government departments, whereas the Bill covers all public authorities.
Most importantly of all, the code of practice is underused. It is not regarded as a mechanism for providing freedom of information as the Bill will be, if, as we expect, it is accompanied by a culture change. The publicity given to the Bill will ensure that the public are aware of their rights.
Amendment No. 169 would remove the specific provisions currently proposed to protect the Law Officers' advice and the operations of ministerial private offices. That would lead to less effective and efficient development and delivery of government business, because it would restrict the free expression
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of views at the policy formulation stage without significantly increasing the amount or quality of the information that could be released into the public domain.
I earnestly ask your Lordships to think about what I have said, just as I will think about what your Lordships have said. The Bill needs to be considered in the context of the whole scheme, not just in relation to Clause 33.
If I may, I shall leave the extent to which facts should be covered until the next group of amendments, where it will fit in more easily. I ask the noble Lord to withdraw the amendment.
9.45p.m.
Lord Brennan: I should like to ask my noble and learned friend a question that tests Section 1A by example. Let us suppose that the forthcoming report on the BSE inquiry concludes that government policy was wrong and caused or contributed to the damage done to the beef industry, let alone the potential effects on human life. Many of us are concerned that, should such an event recur under the Bill the public would have no means of finding out about relevant policy considerations until the disastrous events had happened. Can the Minister reassure us that such fears are not justified?
Lord Falconer of Thoroton: I do not know what the BSE inquiry report will say. Under the Bill, reports about BSE given to Ministers would be covered by the exemption under Clause 33, but it would then be for the Minister or the relevant public authority to decide whether the balance of public interest lay in disclosure or in maintaining the exemption. Ministers might get that wrong or right, depending on how it looked some years later with the benefit of hindsight, but it is worth emphasising that, if there was a harm test, it would still be for the public authority to ask itself whether producing the information caused harm. That is the choice. Under our approach there is no need to worry whether the information is fact or opinion. The relevant body simply looks to see whether the information is covered by the exemption and then applies the public interest test. That is a more straightforward and direct way of dealing with the problem.
That gives me an opportunity to deal with the three examples that the noble Lord, Lord Brennan, raised in his speech, which I omitted to deal with. He referred to meetings between the Chancellor and the Bank of England. They have been replaced by the Monetary Policy Committee, which does not involve the Chancellor, because the Bank of England is now responsible for interest rate policy. The publication of the minutes is provided by statute. There is also a provision for withholding any information if prejudice would be caused to certain matters.
Reports on safety matters would probably not be caught by Clause 33, because they would not be in relation to the formulation of policy. They would be dealt with elsewhere. The Food Standards Agency has

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published advice that it has given to Ministers from time to time. Under the Bill it might well be covered by an exemption, but, assuming that no other exemption applied, it would be for the agency to decide whether the Clause 13 balancing act should lead to publication.
Lord Goodhart: Before the noble and learned Lord sits down again, perhaps I may ask him a question. If the withholding of information that is exempt under Clause 33 causes no harm, then if disclosure of that information is sought, the withholding of the information would almost certainly fail the balancing test under the new Clause 2. In that case, what is the real objection to including a harm test in the exemption itself?
Lord Falconer of Thoroton: As presently drafted, Clause 33 provides certainty as to what is covered by the exemption in relation to the public interest that is dealt with by the balancing under Clause 13.
Lord Lucas: The Minister began his remarks by saying that he was aiming to create a culture of greater openness. He then ended by saying, "But not for us; only for the rest of the public service. We shall disclose rather less than we have to under the code at the moment". I do not believe that the rest of us consider that to be acceptable.
There are various ways to deal with the issue and we have discussed some of them before. Clearly, we must rebalance the public interest test so that it is not phrased as it is at present but so that the interest in withholding information outweighs the interest in releasing it. Under those circumstances, I believe that there is a strong argument for a duty to assist—which would also help in this matter—and, indeed, for a purpose clause.
However, I would much rather attack the problem at its root in this clause. There is a strong argument for a harm test. I believe that that returns us to the point where we should be, which is to make the individual official who is faced with making a decision under the Bill consider realistically whether there is an argument for withholding the information rather than to allow him to pass the buck downstream. As my noble friend Lord Norton of Louth said, downstream may be a long way—weeks or even months—during which time the buck may be passed, the whole matter may be diffused through the passage of time and government will be allowed time to fudge, time to change and time to make the matter irrelevant, rather than facing up to the need to be open at the moment that the decision is made. I believe that the Government must take their own medicine in this clause and I hope that the Minister will think again.
Lord Falconer of Thoroton: I apologise for interrupting, but I am not sure that I understand the point made by the noble Lord in relation to timing. An application for information under the Bill could be made at any time; for example, precisely at the time a decision was made in respect of which information was
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sought. That would require the relevant public authority or Minister to consider whether or not it was covered by an exemption and then, if it was covered by an exemption which was not an absolute exemption, including Clause 33, whether or not to exercise the discretion under what is now Clause 2. Therefore, I am not quite clear to what the noble Lord refers when he says that time can pass.
Lord Lucas: I hope that I understood my noble friend Lord Norton aright when I agreed with him that presently there is no time limit on consideration of the public interest test and that that can be spun out indefinitely under the terms of the Bill as it is now.
Lord Falconer of Thoroton: The public authority is obliged to consider the question of whether or not to exercise the discretion within a reasonable time. That can be policed by the information commissioner. The idea that that will lead, as the noble Lord, Lord Norton, said, to years going by is, with respect, fanciful.
Lord Mackay of Ardbrecknish: We have had an interesting start to this debate. I believe that I heard the noble Lord, Lord Brennan, asking the question: has the code worked? I believe that he meant: has it not worked, thus forcing government to divulge information that they would rather not have done? Perhaps I slightly misunderstood the nuance in his question. The Minister did not refer to that at all. I believe that the logic of the question raised by the noble Lord, Lord Brennan, was: if it has worked, why weaken it?
The Government must have started by considering that the code was all right and they wished to strengthen it. In the White Paper they envisaged something much closer to the code than the present Bill. The White Paper rejected a class exemption for policy material, stating that the Government were prepared to expose government information to FOI legislation at all levels. However, most exemptions were to be based on a test of whether disclosure would cause substantial harm. The case for a lower threshold in that area was accepted. Information about policy would be available subject to a test of simple harm; that is, would disclosure of the information cause harm?
The Government find themselves out of step with what is being proposed in Scotland, which I find interesting. I suppose one must add the caveat that in Scotland it is still just a White Paper. We have not yet seen a Scottish Bill. So maybe some pressure will be applied to the Scottish Executive from down here to ensure that it withdraws from its White Paper in the same way that the Government have withdrawn from theirs.
The noble and learned Lord, Lord Falconer, gives robust defences of his position. He started off by saying that the Government were in favour of increased openness. Does it not worry the noble and learned Lord that no one in the Committee seems to believe him? Members of the Committee, with one

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exception, seem to think that the Government are not going down the road of increased openness. As we contemplate what we should do to tackle this clause, and what amendments we should table on Report, perhaps the Minister might contemplate why he is not receiving support for what he believes to be increased openness and why he is being met with a mild degree of scepticism. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10 p.m.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 168:
Page 18, line 34, after ("department") insert ("or by the National Assembly for Wales").
[Amendments Nos. 169 to 171 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 172:
Page 18, line 40, at end insert—
("(1A) Once a decision as to government policy has been taken, any statistical information used to provide an informed background to the taking of the decision is not to be regarded—

(a) for the purposes of subsection (1)(a), as relating to the formulation or development of government policy, or

(b) for the purposes of subsection (1)(b), as relating to Ministerial communications.").

The noble and learned Lord said: The Government have listened to the points put forward concerning statistical information and have accepted that greater openness can he achieved in this area. Amendments have consequently been tabled to address that.
The net effect of Amendment No. 172 would be that such statistical information would then fall within the prejudice test exemption contained in Clause 34. Within Clause 34, there is provision that any information to which the clause applies is exempt information if, in the reasonable opinion of the relevant qualified person, its disclosure would, or would be likely to, prejudice the matters set out in subsection (2). However, Amendment No. 191 goes on to provide that the test in relation to statistical information would be a simple prejudice test. In other words, the amendment would remove the words,
"in the reasonable opinion of a qualified person"
from the exercise of the exemption under Clause 34.
The amendment is necessary in order to ensure that the information commissioner is able to review a decision not to disclose statistical information taken by a public authority and is not simply limited to whether the qualified person has acted reasonably in determining not to release the statistical information. That underlines our commitment to openness and as such is surely to be welcomed by Members of the Committee.
Perhaps I may also reassure the Committee that in relation to statistical and other factual information which still falls within Clause 33 and that which falls within Clause 34, the public interest test will apply.
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Thus, any statistical or factual information which should be disclosed in the public interest will be disclosed under the Bill.
With the leave of the Committee, I shall not speak to the other amendments in this group, which are to be moved by other noble Lords, until noble Lords have spoken. I beg to move.
Lord Lucas Lord Lucas moved, as an amendment to Amendment No. 172, Amendment No. 173:
Line 3, leave out ("statistical") and insert ("factual").
The noble Lord said: I do not intend to address my amendments at this stage. I should prefer to wait for the Government to answer them. I believe that they are fairly clear and simple in what they seek to achieve. I should like first to listen to the arguments on other amendments in this grouping before taking up the time of the Committee with my ideas. I beg to move.
Lord Archer of Sandwell: We have just debated the first of the shortcomings of Clause 33: the fact that it is not subject to a harm test. Now we are discussing the second shortcoming. As originally drafted, it made no attempt to distinguish between the various kinds of information.
My noble and learned friend has at last made an attempt to make some distinction. He said in fact that he had listened to representations which had been made about statistical information. The representations which I heard being made were not specifically addressed to statistical information. But my noble and learned friend says that he is prepared to release statistical information from the blanket of silence, but it is confined, first, to statistical information; and, secondly, even that only after the decision has been taken.
I am sure that we are all grateful for my noble and learned friend's attempt to move the colossus from its trench. But he cannot really be surprised if we do not break into a celebration dance. The minimum step we had hoped to see in the direction of openness was a distinction between policy advice and factual information.
During our last debate my noble and learned friend said, "Do not make a distinction between advice and factual information; just apply the 'public interest' test across the board". But that is not what the Bill does. It exempts by categories. That has been one of our complaints. If my noble and learned friend agreed that all information should be subject to a public interest test, we might be in the market for a deal. But he does not. He subjects it all to category exemptions and then, when we come to a category where he does not want to make that distinction, he says, "Do not bother about the categories. Just apply the public interest test".
If the Government believe that the distinction is difficult to make in practice, they reached that conclusion at a comparatively late stage because they made that distinction themselves in Clause 13(5). That is why I set down Amendment No. 174; the distinction is taken from the Government's drafting.

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As long ago as 1977, the Croham directive instructed officials to make that distinction. So far as I am aware, it seems to have been implemented without difficulty. The noble Lord, Lord Butler, gave evidence in July last year to the pre-legislation Select Committee on this Bill. He said,
"when we were coming up to the 1997 election, knowing what the government policy was in this matter, my senior colleagues and I gave some thought to how we could regularly structure submissions to Ministers in a way that would enable us easily to separate the background which was publishable from, as it were, the subjective advice which was confidential. It would take a bit of training and changing practice to do that, but I think that people could very readily adapt to that".
The previous government, in 1994, introduced the openness code which has already been the subject of debate. It required departments to publish facts and the analysis of them which led to the policy decision. It said that information relating to the policy decision was to be published, subject to the harm test. The noble Lord, Lord Burns, told the Public Administration Committee on 22nd June 1999,
"When I was preparing for the election and thinking about these issues, I had expected a bigger shift in that direction than we have, in fact, seen".
Amendment No. 175A was originally going to be tabled by the noble Lord, Lord Burns. I tabled it for two reasons. The first is that the noble Lord, for reasons of which we are all aware, was not able to do so; the second is that it represents an attempt to bring together the various criticisms of this clause. First, it is not clear why factual information should be withheld. Secondly, it is not clear why there should be secrecy as to the analysis which was made of factual information. The Irish Freedom of Information Act excludes not only factual information, but also the analysis and, so far as I am aware, they have not encountered problems about that. Thirdly, Amendment No. 175A provides that anything else within the category should be subject to the harm test.
I understand the arguments about belt and braces but this measure adds a bathrobe and curtain, too. I hope that my noble and learned friend will think again about the whole structure of the clause.
Lord Goodhart: Having heard the noble and learned Lord, Lord Falconer, addressing a meeting of the Bar about 10 days ago when he sought to defend the Government's proposals on legal aid, and having heard him in your Lordships' House defending the Dome, I have a feeling that whenever the Government want to defend the indefensible they send for the noble and learned Lord. I believe that this is such an occasion.
The noble and learned Lord had no support whatever from those on the Benches behind him. Indeed, the noble and learned Lord, Lord Archer, and the noble Lords, Lord Borrie and Lord Brennan, made extremely effective speeches the other way. The only support he received came from the noble Lord, Lord Armstrong of Ilminster, on the Cross Benches. When the noble Lord was speaking I thought for a moment
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that I was hearing the voice of Lord Appleby, whom I believe was elevated to your Lordships' House a few years ago in the resignation honours of Sir Jim Hacker!
We on these Benches accept that advice, position papers and so forth written by civil servants or other advisers should not be disclosed as of right. We accept that they should be exempt, subject to a harm test. But we want the factual background information to be made available without an exemption.
In their Amendment No. 172, the Government have stated that they will release statistical information. But that gives the whole game away because there is no logical distinction between statistical information and factual information. Statistics are simply a collection of facts. Saying that general statistical information can be released but that specific facts cannot seems to me absurd.
Perhaps I may take an example with which everyone will be familiar; the Hatfield rail accident. The number of broken rails discovered on the rail track in this country during the previous 12 months is a statistic. The discovery of a single broken rail at the site of the crash is not a statistic but a fact. As it happens, those matters are already in the public domain but one could well imagine similar circumstances in which that information was not currently in the public domain. If the facts, not merely the statistics, on which the Government rely to formulate their policy are not protected by other exemptions, we believe that they should be available to the public.
As was said during our debate on the previous group, the Bill is far more restrictive than the existing non-statutory code of practice. That code requires departments to publish facts and the analysis of facts which the Government consider relevant and important in framing major policy proposals, admittedly after the decisions have been taken, subject to a harm test and the balancing exercise. As the ombudsman—the Parliamentary Commissioner for Administration who administers the code—said, the code is intended to protect advice not factual information.
Irish freedom of information legislation specifically excludes any exemption for factual and statistical information and analysis of that information. Proposals for a freedom of information Bill in Scotland do not give an exemption to factual information. Even with the concession which the Government have made in Amendment No. 172, we are concerned with the absence of any right to obtain statistical information before the Government's decision is taken. That deprives a person who requests the information of the ability to use it when it is likely to be of use to him or her. For example, a person who makes the request may believe that the statutory evidence is misleading and incomplete and may want to refer the Government to further evidence of which they may be unaware, but there is no way in which he or she can do that if there is no access to the information before the decision is made.
The Government's proposals mean that factual information which would not be protected under any other clause would be exempt merely because it was

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used as background information in policy-making. The Government's proposals draw an illogical and indefensible distinction between one kind of factual information—statistics—and other kinds. I believe that this group of amendments will be as unpopular as the previous one. There are a number of alternative amendments from which to choose and, having seen them, we strongly support Amendment No. 175A in the name of the noble and learned Lord, Lord Archer.
10.15 p.m.
Lord Williamson of Horton: I do not return to the question of the harm test, although it arises on Amendment No. 175A. However, I should like to intervene on the choice of amendments in the current grouping that is before the Committee. One may choose the exclusion of statistical information from the class exemption once a decision on government policy has been taken; or the exclusion of factual information, which is the amendment in the name of the noble Lord, Lord Lucas; or the exclusion of factual information and analysis of that information without the condition about timing.
I believe that the government amendment should be welcomed, perhaps mildly, since it improves the position in comparison with the Bill as presented. My mother always taught me to be thankful for small mercies. There is a suggestion that we should deal with factual rather than statistical information. There might be some contention in this matter. Generally speaking, however, I believe that that formulation can operate. It is possible to differentiate factual information. Leaving aside for the moment the harm test, on balance I also support the amendment moved by the noble and learned Lord, Lord Archer. It is possible to operate that provision which would be more in keeping with freedom of information.
Among these amendments one sees the expression "in the reasonable opinion of a qualified person". That is deleted from the final amendment in the group, but we may return to that later. I am tempted to point out that this evening there are two Members of the Committee sitting on the Cross Benches who may be considered to be qualified persons but they disagree on a number of points.
Baroness Whitaker: I support Amendment No. 174 for three reasons. In so doing, I welcome the amendment of the Minister which improves the position by proposing that the public have a right to statistical information relating to policy decisions. However, I respectfully suggest that Amendment No. 174 is better. The term "statistics" is narrow. As the noble Lord, Lord Goodhart, said, facts may not be statistical, and he gave an example. I should like to offer one or two others: the route of the smallpox bacillus through a ventilation system at the University of Birmingham which killed its last victim in the UK; new maps of the watercourse beneath a mine slag heap which was involved in the Aberfan disaster; and the level of training of an anaesthetist in a medical mishap, which was a concern revealed in a recent court case. Those kinds of facts may be instrumental in a policy decision.
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To permit the release of information only after the policy decision has been announced destroys an important function of freedom of information. That was reflected clearly in Treasury guidance to the 1994 voluntary code. That states:
"The public interest in disclosure is particularly strong where the information in question would assist public understanding of an issue subject to current national debate".
It continues,
"the emphasis is on assisting understanding, consideration and analysis of existing and proposed policy".
That function also makes possible the informed consent of citizens to the hard choices which governments have to make.
My final point will, I hope, reassure noble Lords who fear the alleged tendency to secrecy of bureaucrats. The trade union of senior bureaucrats—the policy advisers—the FDA, has publicly supported freedom of information legislation for many years. I confirmed the position last week. I was not made aware of any difficulty in implementing the present voluntary code which in some ways goes beyond the Bill. Incidentally, when I worked in the Civil Service, I cannot recall any advocacy for withholding information to protect an official. I say no more.
When I was with the Health and Safety Executive the culture was, to quote the evidence of its chairman to the Public Administration Committee, in 1998 that,
"open access to health and safety information improves public understanding and strengthens confidence in the system".
Those who operate the system at Ministers' bidding can manage and would welcome access to factual background. Authoritative guidance states that this background should be released during debate and not after, and the citizen in a democracy worthy of the name both needs and is entitled to it. I therefore recommend the amendment.
Lord Brennan: I hope my noble and learned friend the Minister will forgive me if I give yet another example to test the way in which this distinction between statistic and facts might work. Let us suppose that the Minister of Agriculture, Fisheries and Food negotiates with a major firm producing genetically modified crops a series of tests to determine whether a product is of public value. The material upon which that decision will be made will involve fact. The resulting decision whether to implement a policy to promote such a product would involve policy. The recipients of that policy are the people who will consume the product. Those people will feel that they are entitled to know the facts upon which the product is put into the marketplace.
On reading the Bill it would appear that in that example the Government can rely on Clause 33(2) to say that the facts behind the matter are covered by the policy exemption; the company can rely on Clause 41 to say that the matter is of commercial interest; and the public can say nothing unless they look carefully at Clause 73. It says that under the Aarhus convention the Government are to allow for access by the public to environmental information and the public might be entitled to such information.

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I chided the Minister the other day with a reference to the Aarhus convention. But it is exceptionally important because its terms expect—indeed require—governments to allow the public access to information about the environment. Under Clause 73 the Government must make regulations to allow that to occur. I am back to my example. The Government claim exemption; the company claims exemption; and the citizen says, "Under the Aarhus convention I am entitled to know".
I hope that that is not too elaborate an example. The item is of current interest and graphically illustrates the difficulty of claiming that there is some difference to make between fact and opinion. The public will want to know the facts. I hope that the Bill will allow them to do so.
Lord Norton of Louth: Prompted by the noble Lord, Lord Brennan, who made an extremely important point, and following on from what he said, I invite the Minister to think of the matter not so much simply in terms of the principle of open government, important though that principle is, but in terms of what it may deliver for good government. The late Enoch Powell used to argue that one did not really need to be informed about the background material that led to a government decision; all one needed was the decision and then one could deliberate on whether it was a good decision. I share the Minister's scepticism about that and argued against it.
If people are to judge the decision, they should have access to the information on which it is based—not the internal deliberations, as the Government can present their reasoning for reaching a conclusion. But if there is to be a wider debate about that decision, the more information that led to it that is put into the public domain, the better the debate will be informed. If the material comes after the event, one is looking at it after the decision has been made and perhaps implemented. It is then too late. If one follows that line of reasoning, the onus should be on putting into the public domain as much information as possible to enable a proper public debate to take place. The Government would be the beneficiary because the debate would be that much better. If their reasoning is sound, people would be more likely to support them rather than, after the event, feel miffed that only then had they received the information.
On that line of argument, as much material should be pushed out into the public domain as possible and only in the most exceptional circumstances should it be withheld. If one takes that approach, it points one to go further than the amendment in the name of the noble and learned Lord the Minister, Amendment No. 172, and leads one far more in the direction of the other amendments that are before the Committee. The quality of government would benefit if there were that degree of openness.
10.30 p.m.
Lord Cope of Berkeley: I hesitate to intervene again at this stage of the Bill, but not sufficiently so to stop me talking. When I was a Minister and was involved in looking at statistics and factual information in order to make decisions, I had the advantage, at least at one point, of being advised by the noble Baroness, Lady Whitaker, in her previous capacity. Based on that experience and others, I believe that I can make a contribution to the debate.
The noble Lord, Lord Goodhart, paid a great tribute to the noble and learned Lord, Lord Falconer, in saying that he is the Government's preferred choice for defending the most difficult of cases. Perhaps that is part of the qualification for being a senior silk at the Bar. It seems to me that he has a rather difficult case to defend, but it depends on a number of considerations. The first is the difference between statistical information and factual information; the second is the question of information before and after the decision being released; and the third is the issue of the harm test.
On the difference between statistics and facts, the Committee will be aware that I am an accountant and might be presumed to prefer numbers to other facts. But I am well aware that numbers, either as statistics or accounts, do not necessarily present the whole picture. A great deal of information cannot be represented by numbers, but is nevertheless necessary if a good decision is to be reached.
Indeed, the whole point of a political or ministerial decision is that it cannot be reduced to numbers or, for that matter, to facts. It requires an element of judgment. If we are dealing with an expert decision, then the experts in a particular field—such as the civil servants in a government department, the generals and admirals for matters related to defence or the doctors and surgeons for a medical problem—do not need politicians to intervene. However, where a gap appears between the facts and the matters to be decided, or, to put it another way, where an element of guesswork must be incorporated, then the politicians have to step in and come to the decision. However, they must do so only on the basis of the best possible statistical and factual information that can be produced for them.
The question we need to consider is whether statistical information has a different character from other factual information. In some senses, of course it does. It is possible to add up one column of figures, then another column of figures, and conclude that one total will be greater than the other. One or the other may then be preferred. However, we all know that statistics can mislead as well as tell the truth. Numerous examples exist which I shall not develop because it is sufficient simply to state the case. The basis on which statistics are produced can profoundly influence the final outcome.
The same is true of other factual information. For example, opinion polls—other than on easy questions

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such as "Would you vote Labour, Conservative or Liberal Democrat?"—on more difficult topics, such as issues of the day, often present problems of interpretation. It has long been noted that how a question is expressed can bring about a different statistical response, one that would not necessarily reflect what should be ultimately the correct decision. I do not believe that any great advantage may be gained or objectivity achieved by relying on statistics over other "factual" information. I refer to "facts" in inverted commas here because all facts which are brought to bear when reaching a political decision, such as the one I have described, are open to doubt. So I do riot think that it is valid to make a distinction between the emphasis placed on statistical information in government Amendment No. 172 as opposed to the emphasis on factual information in the opposition Amendments Nos. 174 and 175A.
The second question to consider is that of "before" and "after". The government amendment states that,
"Once a decision as to government policy has been taken",
information should then be released. The difficulty here is that it is well known that once a government policy has been announced—namely, the decision has been reached and made public—the question of saving face enters into the process. It is difficult for a government to change their original decision. That may be desirable or undesirable, but it is the fact of the matter. It is easier for a government to change their mind before they make any public declaration of their intentions than it is afterwards. We see this all the time in the course of the practice of government and when observing government. I think, therefore, that leaving the release of information, whether it be factual or statistical, until after a decision has been reached, has a disadvantage over the release of information in advance.
At the same time, this has to be measured against the third aspect, which is summarised by the harm test. Paragraph (c) in Amendment No. 175A expresses this as,
"other information, unless its disclosure would, or would be likely to, prejudice the frankness and candour of internal discussion".
That is extremely important.
Lord Falconer of Thoroton: The effect of the amendment is that those words apply only to paragraph (c), not to paragraphs (b) and (c). As I understand the effect of Amendment No. 175A, there is no exemption at all in respect of paragraphs (a) and (b); the information automatically comes out, irrespective of harm.
Lord Archer of Sandwell: Yes.
Lord Cope of Berkeley: Yes. But the harm test is nevertheless important.
Lord Falconer of Thoroton: It does not apply here.
Lord Cope of Berkeley: Other information is not exempt unless its disclosure would prejudice—
Lord Falconer of Thoroton: The noble and learned Lord, Lord Archer, has confirmed the effect of paragraphs (a) and (b) of the amendment: even if the information were to cause harm, it comes out.
Lord Cope of Berkeley: In that case, perhaps I may record that I believe that the frankness and candour of internal discussion is of extreme importance. If the business of government is to be carried on properly, that is essential.
Lord Archer of Sandwell: I intervene only because I am slightly puzzled by the paraphrase of my noble and learned friend. I think he understands what we are saying. But if it will prejudice the frankness and candour of internal discussion, it will cause harm, will it not? That is the harm test.
Lord Falconer of Thoroton: I may have got it wrong, but I understand that the effect of the amendment is that information is not exempt if it consists of,
"(a) factual information".
Therefore, if it is factual information, there is no harm test of any kind applied.
Lord Archer of Sandwell: That is right.
Lord Falconer of Thoroton: So any factual information, even if it were to cause harm if it was published, must be disclosed. That is the effect of the amendment. Paragraph (c) is in a different category.
Lord Cope of Berkeley: Once again I find myself at a disadvantage because I am not a lawyer. I am not able to analyse as precisely, as it seems others can, the precise effect of Amendment No. 175A, which is proposed by one leading lawyer and opposed by another.
Lord Archer of Sandwell: At the risk of trying the Committee's patience, perhaps I may have one more try. It is my noble and learned friend who has insisted on exempting by categories. It is perfectly right that it would be exempt from this category.
Lord Cope of Berkeley: I return to the fact that frankness and candour in internal discussion remains of the highest importance in achieving good government decisions.
Lord Falconer of Thoroton: Perhaps I may return to my basic theme in relation to Clause 33. The clause provides an exemption in relation to the material covered by Clause 33(1), which is a class exemption. That includes factual material. The public authority does not need to trouble itself as to whether it is a fact or not; it simply looks to see whether it is within Clause 33(1)(a). It then applies the public interest test under Clause 2.
Perhaps I may apply that approach to the examples that have been given. In regard to information relating to GM foods, environmental information regulations will give a right to some of the information referred to by the noble Lord, Lord Brennan, in his example. To the extent that the information is not available under those regulations, and in so far as the information

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would be exempt under Clause 33, it would then be for the public authority or the Minister to decide whether or not the public interest in disclosing the information outweighed the public interest in maintaining the exemption, the purpose of the exemption under Clause 33 being to give space in the making of a decision. That approach leads to a sensible result being reached.
Similarly, in relation to the example given by the noble Lord, Lord Goodhart, of a broken rail beside the track, if that was a fact in the possession of a public authority for the purpose of making a policy decision, it would be exempt under Clause 33, but it would then be for the public authority to decide where the public interest lay in relation to disclosing that information. It would have to balance suppression against disclosure, and decide where the balance lay. That is a perfectly sensible approach. With respect, not one Member of the Committee has said why it is not sensible.
I also emphasise that the Government believe that factual information used to provide an informed background to decision-taking will normally be disclosed. As I indicated when this matter was before the Committee two days ago, we have agreed to bring back into new Clause 2 the steer towards the disclosure of such information that had been provided in Clause 13(5). So again, we are at one with those Members of the Committee who want to see greater openness in relation to factual information.
There will be occasions when it will not be in the public interest to disclose facts that have been under consideration, as to do so would, for example, disclose advice which is properly protected by the exemption in Clause 33. To ensure, as the noble Lord, Lord Cope, eloquently described it, the protection of the frankness and candour that is required for good government to take place, we need to allow some leeway so that, in these admittedly exceptional circumstances, factual information could be withheld. We believe that the right approach is for the public authority to address that by asking itself the question, "Where does the public interest lie?", not on the basis of some fine legal question as to what is or what is not a fact.
Amendment No. 175A would provide no protection whatever for facts or analysis under Clause 33 or Clause 34, even if it would be prejudicial to disclose that information. I believe that the noble and learned Lord, Lord Archer, accepted that. Furthermore, the effect of paragraph (c) in the amendment is to convert the test in Clause 33 into a prejudice-based one, except in relation to information relating to Law Officers.
This information is of a sufficiently sensitive nature to warrant a class exemption as its disclosure would almost always entail harm to the formulation of government policy. This being the case, it would be dishonest to have a prejudice test in this clause. Information of this nature should be disclosed only where it is in the public interest to do so, which is already provided for in the Bill.
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Perhaps I may deal with a number of other points that have been raised. The first is the "before or after" question. Again, let us remember Clause 2, which allows the public interest to be weighed. Secondly, the noble Lord, Lord Goodhart, said that the Irish Act dealt with factual information in a better manner. Perhaps I may repeat what I am told the Irish Act provides for. Section 19 of the Irish Act has an exemption relating to information submitted to Ministers for their use in transacting government business. This exemption does not apply to factual information relating to decisions already published or made more than five years before the request was made; hence the exclusion from exemption does not cover facts before a decision is made. As I understand it, there is a five-year pause before the factual material becomes available.
Secondly, it is said that we ourselves have sought to draw a distinction between fact and opinion in what was Clause 13(5) which will come back when we produce our amendment. That is not right. The subsection did not purport to define a fact; it did not need to. If we are to separate fact and opinion in Clause 33, which is what is sought, it will be necessary to have a precise definition of what a fact is—which leads us into the minefields that we want to avoid.
Finally, the noble and learned Lord, Lord Archer, referred to the Croham directive, given shortly before the anticipated change of government in 1979. That directive required submissions to Ministers to be set out so as to distinguish between factual information and advice. I am told by my officials that this may be different from the evidence that was given. The directive was not in fact implemented because there was a difficulty in establishing what is factual information and what is advice. I understand the point about the evidence given to the Select Committee but, speaking for myself, I should have thought that it would not be a productive use of officials' time to work out what is a fact and what is opinion. It would be far better to give advice to Ministers and others on the basis of the best way to give advice, rather than on the basis of trying to comply with the Croham directive. I address those remarks to my right because a response could be forthcoming from that direction—
10.45 p.m.
Lord Norton of Louth: Surely civil servants have to make that distinction all the time when they are appearing before Select Committees in the other place.
Lord Falconer of Thoroton: I cannot believe that civil servants appearing before a Select Committee must decide, on the one hand, what is precisely a fact and, on the other, what is precisely opinion. The line would be one where they can make sensible judgments in that respect.
Lord Archer of Sandwell: I am grateful to my noble and learned friend, but my information about the Croham directive differs from his. Unless the

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Government are prepared to disclose some information about it, I suppose that we shall never know.
Lord McNally: I remember the evidence given by the noble Lord, Lord Butler of Brockwell. Indeed, when giving evidence to our Select Committee, he took some pride in saying that he had actually cracked this. Therefore, I hope that the noble Lord will read this exchange in Hansard and that he may intervene in the matter on Report. That would be most helpful.
Lord Falconer of Thoroton: Indeed. When I repeated to the Committee what I had been told by my officials, I hope I signalled that I knew it was inconsistent with the evidence that had been given to the committee of my noble and learned friend. Therefore, it would be very interesting to hear what the noble Lord says. However, if we go on to consider the principle, we must realise that the directive has not been implemented. I suspect that that is because of the question whether it would be a productive use of time to be drawing such distinctions.
Lord Lucas: Before he concludes, I hope that the noble and learned Lord will touch on the point of when a fact is a statistic and when it is just a fact.
Lord Falconer of Thoroton: It is pretty easy to identify what is a statistic: you know a statistic when you see it. As to what is a fact or an opinion, that is a much harder question to answer.
Lord Norton of Louth: Before the noble and learned Lord sits down, I am still a little unclear from what he said as to what is the objection to Amendment No. 174 tabled in the name of the noble and learned Lord, Lord Archer of Sandwell. The Minister dealt with the other amendments in the group, but I am not quite sure that he dealt with that one. Further, the noble and learned Lord did not deal with an absolutely crucial point made by the noble Lord, Lord Williamson of Horton, as regards the difference between how he and, say, the noble Lord, Lord Armstrong of Ilminster, would interpret something. I believe that to be a crucial point in the context of this debate.
Lord Falconer of Thoroton: Amendment No. 174, tabled in the name of my noble and learned friend Lord Archer of Sandwell, says:
"Information is not exempt by virtue of subsection (1)(a) insofar as it consists of factual information which has been used, or is intended to be used, to provide an informed background to decision-taking".
It takes us straight into the issue regarding what is and what is not a fact. It does not matter in terms of how we approach the matter, because it is dealt with by what was Clause 13 and what is now Clause 2. I should be interested to hear the noble Lord's response as to why that is not an effective approach to the problem.
Lord Norton of Louth: That relates to my final point, which was initially made by the noble Lord, Lord Williamson of Horton.
Lord Archer of Sandwell: Does not my noble and learned friend appreciate that, in Clause 13(5), the Government distinguished between what is and what is not a fact?
Lord Falconer of Thoroton: I do appreciate that; indeed, I dealt with that point. Clause 13(5) referred to the factual background. It indicated that the public interest is served by disclosure. However, because it did not need to do so, it did not seek to define the difference between fact, on the one hand, and, on the other hand, things that are not facts. Clause 13(5) gives a steer in relation to the exercise of a discretion where you do not need to be as precise as you would be if you were defining what was and what was not exempt.
Lord Williamson of Horton: I have been slightly challenged on this point, so I shall rejoin the debate. I should say, first, that I hope the Government do not announce what the noble and learned Lord has just stated; namely, that they do not always know what is and what is not a fact.
The second point is that there is a difference between the proposal in Amendment No. 174 in the name of the noble and learned Lord, Lord Archer of Sandwell, and the situation presented in the Bill by the noble and learned Lord. Under Amendment No. 174 the factual information would be outside the class exemption and there would be no further argument about it. It would be available to the public, full stop, whereas under the position presented with some brilliance by the noble and learned Lord, the decision on whether the information would be available would be taken by the public authority under Clause 33, now Clause 2. So it would be in the hands of the public authority to decide whether or not this factual information would be available. Frankly, that difference is fundamental and it has not been covered by the noble and learned Lord.
Lord Falconer of Thoroton: The effect of Amendment No. 174 is like that of Amendment No. 175A. There is no exemption at all as regards the former amendment. So it follows from what the noble and learned Lord is proposing in Amendment No. 174, that even if it were to cause harm to disclose the information, it would nevertheless be produced. As I understand it, even the noble Lord, Lord Goodhart, does not go along with the idea that, even if were to cause harm, that information should be disclosed. It is not what the noble Lord, Lord Williamson is suggesting is the position, namely, that it might be disclosed under Clause 33 rather than being put into Clause 2 because it comes out irrespective of whether there is harm.
Lord Goodhart: As regards harm, would the noble and learned Lord agree that it could be exempt by virtue of other provisions such as damage to the economy?
Lord Falconer of Thoroton: It might be, but we are debating in the context of Clause 33, which depends on what the information was.
Lord Armstrong of Ilminster: Perhaps I may follow the earlier point made by the noble Lord, Lord Norton of Louth, about before and after. I very much agree with him that the requirement to publish factual and statistical information is likely to improve the quality of government. But the knowledge that that information will have to be published once a decision has been taken would exercise a very powerful degree of discipline on those making the decision. Knowledge that that information would emerge after the event would cast its shadow before, if I may put it that way. Therefore, I do not believe that that is a conclusive argument in favour of prior publication.
Lord Lucas: I very much hope that the noble and learned Lord will not rest on his suggestion that one will know a statistic when one sees it. I do not believe that that is a good basis for using the word in legislation. If I asked the noble and learned Lord how many hours of sunshine there had been today, he would quote me a number and that is a statistic. It is also a fact. But perhaps he does not mean "statistic" in that sense.
Perhaps he means it in the rather more limited sense that a statistic is a number which cannot be verified because all traces of the original facts which made it up have been expunged. Is that what the noble and learned Lord means by "statistic"? If that is so, then a statistic inevitably contains a large element of analysis, because one cannot reach that stage without having taken some decisions as to how the facts should be analysed. Are those not to be revealed as part of the statistics or are we just to be presented with bald numbers and not the basis on which they have been arrived at? It we are presented with that basis, then we are getting into the realms of analysis under the heading of "statistics". It is a very difficult question to settle. Even if we do not arrive at a final answer, I believe that we should be presented with a considered view by the Government of what is a statistic under the new provision and what is not.
Lord Norton of Louth: Perhaps I may briefly comment as well and take the opportunity to respond to the noble Lord, Lord Armstrong. I completely agree with the point he made because, if one knows that the information is going to be in the public domain, that is an important discipline on government and therefore highly desirable. My point is that while that may be necessary, it is still not sufficient in terms of the quality of decision-making.
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I understand the point that the Minister makes about the harm test in relation to Amendment No. 174. I can see the argument he makes against Amendment No. 174. However, I do not think that that is sufficient to justify what is in the Bill. It is perhaps a case for reworking Amendment No. 174, but it is certainly not a case for justifying the existing provisions of the Bill.
Lord Falconer of Thoroton: Enjoyable as this is, I think that we should now consider another amendment. I say to the noble Lord, Lord Lucas, that I think that most people would recognise a statistic when they saw it. It would be wrong for me on my feet, as it were, to try to give a statutory definition of a statistic. I shall write to the noble Lord. However, I assert that it is not too difficult to recognise a statistic when one sees it.
Lord Lucas: I disagree fundamentally with the noble and learned Lord on that. I have spent too much of my life among statistics to have any reason to believe that a line can be drawn between a statistic and a fact on one side and statistic and analysis on another. The three blur into each other in a way which admits no firm lines. If we are to see this word in legislation, at least we ought to have a government opinion and some examples as to what constitutes a statistic for us all to go on. I shall be content with a written response from the noble and learned Lord. Therefore I beg leave to withdraw the amendment.
Amendment No. 173, as an amendment to Amendment No. 172, by leave, withdrawn.
[Amendments Nos. 174 to 177 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 178:
Page 19, leave out line 2 and insert—
(""government policy" includes the policy of the Executive Committee of the Northern Ireland Assembly and the policy of the National Assembly for Wales;").

Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 179 to 182:
Page 19, line 7, leave out from second ("communications") to ("and") in line 9 and insert—

("(a) between Ministers of the Crown,

(b) between Northern Ireland Ministers, including Northern Ireland junior Ministers, or

(c) between Assembly Secretaries, including the Assembly First Secretary,").

Page 19, line 10, leave out ("and").
Page 19, line 11, at end insert ("and proceedings of the executive committee of the National Assembly for Wales").
Page 19, line 15, at end insert ("or any part of the administration of the National Assembly for Wales providing personal administrative support to the Assembly First Secretary or an Assembly Secretary").
The noble and learned Lord said: I have already spoken to these amendments. I beg to move Amendments Nos. 179 to 182.
Clause 33, as amended, agreed to.
Clause 34 [Prejudice to effective conduct of public affairs]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 183:
Page 19, line 20, after ("department") insert ("or by the National Assembly for Wales").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
The Deputy Chairman of Committees (Baroness Nicol): I must inform the Committee that, if Amendment No. 184 is agreed to, I shall be unable to call Amendment No. 185.
11 p.m.
Lord Goodhart Lord Goodhart moved Amendment No. 184:
Page 19, line 23, leave out (", in the reasonable opinion of a qualified person,").
The noble Lord said: In moving this amendment, I wish to speak also to Amendment No. 189, which stands in my name and that of my noble friend Lord Lester. Amendments Nos. 193, 200 and 201 also stand in our names and those of others.
The purpose of this amendment is to leave out in Clause 34 the reference to,
"the reasonable opinion of a qualified person".
If the amendment is accepted, the decision on whether or not prejudice exists will be taken by the information commissioner and not by the so-called "qualified person". As matters stand, Clause 34 provides the only exemption where in cases of dispute the existence of the prejudice test is decided by someone other than the information commissioner. Subsection (6) of Clause 34 states:
"A certificate signed by the qualified person referred to in subsection (4)(d) or (e) above certifying that in his reasonable opinion—
(a) disclosure of information held by either House of Parliament".
The effect of Clause 34 is that the decision of the qualified person cannot be replaced by the discretion of the commissioner, unlike all other cases where a prejudice test applies, as we were told by the noble and learned Lord on the first day in Committee. Effectively, all the commissioner can do is judicially to review the decision of the qualified person and reverse it if it is irrational. But that is as pretty hard test to satisfy.
Furthermore, the list of qualified persons is very large. For example, subsection (4)(n) provides that,
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"in relation to information held by any public authority not falling within any of paragraphs (a) to (m)" —
a qualified person means,
"a Minister of the Crown,
"the public authority, if authorised for the purposes of this section by a Minister of the Crown, or
"any officer or employee of the public authority who is authorised for the purposes of this section by a Minister of the Crown".
That is potentially a large number of people. In Clause 52, a government amendment will reduce a similar list of people entitled to override the decision of the commissioner to a smaller list. There is no such amendment here.
Why are the Government proposing that the qualified person should take the decision on Clause 34? There is a natural tendency of people who are involved in decision making to stop others looking at the background to their decision because that makes it easier for people to question that decision. Therefore, the decision whether the exemption is available under Clause 34 will be taken by the persons most likely to take the view that the exemption does apply. It is, of course, not a judicial decision and cannot he appealed against on the merits. It can only be reviewed.
The information commissioner will have extensive experience of taking decisions of this kind because on all other cases of prejudice the prejudice test will be decided by the commissioner. Indeed, it seems to me that the information commissioner will be more qualified than the so-called qualified person to take the decision whether or not the prejudice test is satisfied.
I raise another point. If the qualified person decides that the information is exempt, that is not the end of the matter. The exemption is not absolute except in relation to information held by the House of Commons or your Lordships' House. That is a small category. The balancing operation then has to be carried out under new Clause 2 if a complainant makes a complaint under Clause 49. Who carries out that balancing exercise? It is of course the commissioner. How does she do it? Because of the opinion of the qualified person, she has to assume that the release of the information will cause prejudice. She then has to decide what weight to give to that prejudice when weighing it against the public interest in disclosure. That is, frankly, an absurdity. It is plain that the person who decides whether there is prejudice should be the person who also decides what weight to give that prejudice when carrying out the balancing exercise. It is plain that that person should be the commissioner. It is not appropriate for the qualified person to decide the balancing exercise. Indeed, the Government have not suggested that it should be.
The decision-making process should not be divided up in the way proposed by Clause 34. The whole process should be in the hands of the commissioner. Both the Select Committee on Public Administration in another place and the ad hoc committee of your Lordships' House chaired by the noble and learned

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Lord, Lord Archer, recommended that the commissioner should be entitled to test the claim to the exemption.
The argument that it should be the commissioner who tests the claim under Clause 34, as she does in every other case of exemption which is not an absolute exemption, seems to me to be overwhelming. I ask the noble and learned Lord to take this back and look at it again, because I believe that Clause 34 in its present form is indefensible. I beg to move.
Lord Falconer of Thoroton: The Government feel in certain circumstances that it may be necessary to exempt from disclosure information the disclosure of which would be likely to prejudice the effective conduct of public affairs in the way specified in Clause 34 or otherwise, which may not be so sensitive as to justify being considered under the class exemption at Clause 34.
The exemptions at Clause 34 reflect the particular nature of the information to which the Government believe protection must be afforded. They take the view that a simple prejudice test would be insufficient in such cases. None the less we recognise that this is an area in which it is right for the commissioner to have a significant role in determining when the exemption applies.
The Bill therefore provides that a public authority may rely upon an exemption under this part of the Bill only where that exemption is considered to apply in the reasonable opinion of a qualified person. As the noble Lord has seen from the Bill, the qualified person is, unlike other exemptions, an identified individual—a Minister or similar person. The commissioner may review whether the qualified person has exercised his judgment reasonably. The noble Lord said that it was absurd to include that provision because of the role held by the information commissioner. But the information commissioner must analyse the basis on which the qualified person has taken the decision and then decide whether the qualified person has acted reasonably.
If, for example, the information commissioner considered that no reasonable qualified person could have identified any prejudice in the circumstances posited, he or she would be entitled to say "I come to a different view" or that the view was irrational or perverse. In such circumstances the commissioner can intervene and overturn the decision of a qualified—
Lord Archer of Sandwell: Would my noble and learned friend forgive me? Is it within his recollection that in their own background material published in 1999 the Home Office agreed without shame that the commissioner could intervene—and I quote—
"only if he or she could show that the minister's action was unreasonable, in the sense of being irrational or perverse".
Lord Falconer of Thoroton: The case I was positing was exactly that. I was giving as an example a situation in which the information commissioner considered that no reasonable Minister or qualified person could have identified any prejudice. We think it is essential—
Lord Goodhart: I am grateful to the noble and learned Lord. It is not just the question of applying the judicial review test. Surely it is the information commissioner who has to decide under the new Clause 2 what weight to give to the prejudice. It seems to me that it is simply going to cause confusion if she is not also the person who defines whether or not there is any prejudice.
Lord Falconer of Thoroton: She decides first of all, in relation to Clause 34, on a judicial review basis whether or not there is an exemption there at all. Once that is decided it is for the public authority to make its decision under what is now Clause 2, weighing Clause 34 matters against the public interest. That can then be tested before the information commissioner. She can replace the public authority's judgment with her judgment under Clause 2. I see no difficulty in that.
It is essential to have a provision relating to the reasonable opinion of a qualified person to ensure the proper protection of information relating to the effective conduct of public affairs. The information covered by Clause 34 is less sensitive than that covered by Clause 33, but it remains among the most sensitive that a public authority may hold. If public servants cannot be reassured that they may express views in confidence when providing advice, the Government believe that there could be an unwelcome deterioration in the quality of decision-taking in public sector bodies. Similar concerns arise in the context of other interests protected by the Clause 34 exemption.
As always, I come back to Clause 2, where the public interest in disclosure is weighed against the public interest in maintaining the exemption.
Lord Goodhart: We are getting a bit technical here. It seems to me that the reasonable opinion of a qualified person applies only to whether there is prejudice. It may be that in the first instance the public authority concerned has to carry out the weighing exercise under Clause 2, but when the issue reaches the information commissioner, she cannot override the decision of the qualified person except on Wednesbury principles, but she can substitute her discretion for that of the public authority under Clause 2(1)(b). She will have to take the weighing decision on its merits, but she will not be able to take the decision on prejudice on its merits.
Lord Falconer of Thoroton: The information commissioner decides at stage one whether any reasonable qualified person could come to the conclusion that there was prejudice. She can intervene at that stage only on the judicial review basis. If she concludes that no reasonable qualified person could

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come to the conclusion that there was prejudice under Clause 34, she can override the decision and require disclosure.
Moving on to the discretion phase, if the public authority decides against disclosure, having balanced the reasons for the exemption against the public interest in disclosure under Clause 34, the information commissioner can form her own view. That is pretty clear.
Lord Archer of Sandwell: At the risk of being tiresome, it seems that the commissioner is being called on to carry out a curious intellectual exercise. She may decide that there is no prejudice, but cannot come to the conclusion that the decision that there is prejudice is Wednesbury unreasonable. In that case she has to assume that there is prejudice. She then has to decide afresh the weight of the prejudice. How can she do that as a separate intellectual exercise?
Lord Falconer of Thoroton: I do not see any difficulty in the information commissioner saying that the Minister was reasonable to conclude that there was prejudice, but then deciding that the information should be disclosed after weighing that prejudice against the public interest in discovering the facts.
Lord Lucas: Perhaps I should take the chance to move on to my amendments, which address how wide the ability to apply ones views to the prejudice should be and who should be granted the ability to put a block in the way of the information commissioner.
Perhaps I could start by saying that, if we have a proposal in the Bill such as that set out in Clause 34, why on earth should concern be expressed about having an ability to disclose factual and analytical information taken out of Clause 33? Surely there cannot be any question that disclosure of information which would cause damage in the way that the Government are worried about would fail to fall within Clause 34. Surely we do not need to block off that avenue twice.
I do not believe that the Minister addressed that question at all when we considered Clause 33. Now that we have reached Clause 34, perhaps he could revisit the question and provide examples of the type of factual or analytical information which, if not exempt under Clause 33, would fail to be exempt under Clause 34 if it caused harm to any processes of government. I cannot get my mind around what that might he and I see no reason to double up in this way.
11.15 p.m.
Lord Falconer of Thoroton: First, Clause 34 applies to public authorities other than central government. Clause 33 applies only to central government. Secondly, an example which the noble Lord asks for in relation to Clause 34 might be where English Heritage
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provides advice to the Secretary of State on whether a building should be listed. That advice would not be covered by Clause 33.
Lord Lucas: Yes, but what possible harm will that cause to the workings of government? The idea that that type of information could be considered for being hidden away by government under freedom of information legislation is quite extraordinary.
Lord Falconer of Thoroton: Whether the disclosure of that advice causes harm is the next question. If the owner of the property in question should gain access to that information before a decision was made, obviously he could take certain steps in relation to his property.
Lord Lucas: If that is the case, that is not a harm to the workings of government; it is a harm to the listed estate. Freedom of information implies changes in the way in which practices are carried out. Since this is information which indubitably falls under the rubric of being considered for future publication, it would be exempt within that.
Lord Falconer of Thoroton: A decision could be made not to list.
Lord Lucas: However, it is being considered for future publication and that is all that is required under that clause of the Bill. I have listened to what the Minister has said and shall read it again in Hansard.
I return to the question of my amendments. I am concerned that not only is a wide range of people allowed to exercise this power, but the power can be extended almost ad infinitum by fiat of the Government. I believe that the clause should be extremely restricted in its activities. It should be restricted to officials or to people such as Ministers who are in direct contact with the public will. If one starts to allow that type of power to be exercised by local councils or by others who in ordinary experience have for years practised things that are considered to be disreputable because they are in no danger electorally, I believe that the whole operation of the Bill may be brought into disrepute. A great power is being bestowed upon officials under this clause. It must be restricted to those on whom the action of public will and public opinion is strong enough to prevent them from misusing the power.
Lord Falconer of Thoroton: The reason the list has been chosen is that the people identified in the list are those who hold the relevant information. That is why they have been chosen. Under the noble Lord's proposal, people other than those who hold the information would have to make the decision. We do not believe that that is the right approach. Those whom we have identified in the list are all people of considerable responsibility: Ministers of the Crown,

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the Speaker of the House of Commons, the Mayor for London, Ministers in charge of Northern Irish departments, the Assembly First Secretary, the Comptroller and Auditor General and the Comptroller and Auditor-General of Northern Ireland. They all appear to be suitable people and they also have the information in their grasp.
The noble Lord made two points. First, Clause 34 relates to the conduct of public affairs, not the workings of government. The conduct of public affairs would be affected detrimentally if, for example, people could obtain the information that I have referred to in relation to listing and use it in order to affect their own property rights.
Secondly, he referred to Clause 19: considered for publication. It is intended for future publication. That information would not necessarily be intended for future publication. That would depend on the conclusion of the Minister.
Lord Lucas: I find both those statements interesting. In the first, the noble and learned Lord contradicted what he had said earlier and said that a building being considered for listing would come under Clause 34. I had said that if it comes under Clause 34, what on earth is the need to protect it under Clause 33. The noble and learned Lord is being far too protective of information under Clause 33. Anything which is likely to cause disruption to government is already protected under Clause 34.
I am particularly concerned about subsection (n) which allows any public authority to be added willy nilly to this clause and certainly could include local education authorities or, indeed, the very smallest of the public authorities listed in the Bill. As far as I can see, there is no limitation on how far this power can be extended under that subsection. If nothing else, given the Minister's arguments, I consider that that subsection should be deleted.
Lord Goodhart: I have listened to the debate with interest. I remain totally unpersuaded by what the noble and learned Lord the Minister said. This is likely to be an issue to which we shall want to return on a future occasion. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 185 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 186:
Page 19, line 30, at end insert ("or
(iii) the work of the executive committee of the National Assembly for Wales,").

Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 187:
Page 19, line 35, leave out paragraph (c).
The noble and learned Lord said: I notice from the Marshalled List that it is suggested that the Committee may wish to discuss with this amendment the Question that Clause 34 stand part of the Bill. I am bound to say that in my experience it is normal for clause stand part to be debated after the amendments have been considered, then we know the final form of the clause we are considering. However, I have no strong views on the matter and am in the Committee's hands.
Perhaps I may speak to Amendment No. 187. We have discussed one of the complaints about Clause 34. Now we come to another. Having immunised the harm test from objective scrutiny, the Government now provide a longstop. Having listed the kinds of mischief which appears to occasion the Government such anxiety, just in case they may have forgotten something, they have a catch-all expression which is breathtaking in its all inclusiveness:
"which would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs".
There is virtually nothing in the whole domain of public administration which could not fall within that expression if some qualified person chose to consider it as falling within it.
That is a perfect example of what the Select Committee on the parliamentary commissioner for administration meant when, in its second report on open government in paragraph 111, it referred to the propensity of some departments to,
"scatter excuses like so much gunfire in the hope that some exemption might hit the target. That is to undermine the spirit and purpose of the Code and to show disregard for the rights of the individual requester".
That is a very long cry from the culture of openness of which my right honourable friend the Prime Minister spoke in his preface to the White Paper. Someone has gone overboard. I do not expect my noble and learned friend to agree with all we say in this Committee, but surely he recognises a total absurdity when he meets it. I beg to move.
Lord Mackay of Ardbrecknish: The noble and learned Lord, Lord Archer, rightly points out that the clause stand part debate is grouped with this amendment. I do not have any intention of developing that; it was added as a kind of backstop—rather like the backstop we are discussing in this amendment.
Perhaps I can pose this suggestion. This clause could do without paragraphs (a) and (b); paragraph (c) alone would do fine. The provision would then read,
"if, in the reasonable opinion of a qualified person, disclosure of the information under this Act … would otherwise prejudice, or would be likely otherwise to prejudice the effective conduct of public affairs".
That would cover the whole lot. It seems to me that there is not going to be much left for that qualified person to allow out without considering whether or not it is reasonable to do so.

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I will not even get into the discussion, with all these learned lawyers around, as to what is and what is not reasonable. But what I may think is reasonable as a Minister of the Crown may not be all that reasonable. It may be that I am attempting to protect my bad decision-making, although I may think it is good decision-making. Therefore, I will be reasonable and qualified. Obviously the draftsmen decided, just in case something escaped and there is one last fish in the sea, let us get it with a grenade; and this is the grenade.
I know the noble and learned Lord likes to tell us it is all about openness,.but I am not very sure.
Lord Goodhart: My name and that of my noble friend Lord Lester of Herne Hill is attached to this amendment. At this time of night all I propose to say is that I agree with every word said by the noble and learned Lord, Lord Archer, and by the noble Lord, Lord Mackay.
Lord Norton of Louth: I basically agree with what has been said. But since we are debating the clause stand part Question as well, I should say that it strikes me as a strangely constructed clause if we look at the provisions in relation to one another. We are left wondering, for example, what information held by a public authority is likely to prejudice,
"the maintenance of the convention of the collective responsibility".
The way that provision is drawn strikes me as being distinctly odd.
In terms of paragraph (c), I agree completely with the amendment. I made a note that this is basically a sweeping-up provision, not dissimilar to a discussion we had earlier on Clause 26, which again struck me as a sweeping-up clause to take care of anything that was not covered by other clauses. I am sure the Minister could give examples that would be caught by the provision that may well be justified. But it is so broadly drawn that, as the noble and learned Lord, Lord Archer, mentioned, it can cover anything in the realm of public affairs. We only need some official seeking to protect himself to delay the process. In other words, it may be used as a delaying tactic. But it is so broadly drawn that it encompasses anything to do with public affairs. It needs to be taken away, completely redrawn and narrowed considerably.
Lord Falconer of Thoroton: As has been made clear in the debates two days ago in Committee, this is a catch-all. Does anybody disagree with the proposition that if information,
"would, or would be likely to, prejudice

(i) the maintenance of the convention of the collective responsibility … or

(ii) the work of the Executive Committee of the Northern Ireland Assembly …

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(b) would, or would be likely to, inhibit

(i) the free and frank provision of advice, or

(ii) the free and frank exchange of views for the purposes of deliberation",

that material needs to be weighed in the balance against the public interest in disclosure? That is the way the Bill works.
Clause 34 establishes exemption, but only if those tests are satisfied. Once those tests are satisfied, it is for the public authority to decide, when weighing the public interest in disclosure against the reason for the exemption, which of the two should prevail. That is perfectly sensible. Nobody would dispute those provisions. Again, subsection (2)(c) says that if the disclosure of information,
"would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs",
it is exempt; and that needs to be weighed against the public interest in disclosure.
It is important to note that in the course of the debate no one considers the effect of Clause 2; they consider only the effect of the individual exemption. It is perfectly possible to identify items which will be caught by Clause 34 which would not be caught by other exemptions; for example, communication between chief examiners of examining boards and people drafting exam questions. Such material should not be disclosed. One would have thought that people knowing what was in exam papers before they came out would not be good for the effective conduct of public affairs.
The Bill is designed to promote freedom of information but it must be sensible to define a catchall by things which reasonable people would regard as preserving; for instance, the free and frank exchange of advice or the effective conduct of public affairs. It sets what is to be on one side of the balance and Clause 2 sets what is to be on the other side. I therefore suggest that noble Lords withdraw their amendment.
11.30 p.m.
Baroness Whitaker: Perhaps I may clarify an aspect of the healing properties of the balancing act of the new Clause 2. Is it that either the public authority or information commissioner, when judging where the balance of public interest lies, will act on the basis that the presumption is against disclosure, unless it is in the public interest to do so?
Most of the amendments, including that to Clause 33(2), argue that the presumption should be in favour of disclosure, unless there is a public interest against it. During our debate on Clause 33, the noble and learned Lord said that there was not much between us on this point and why, therefore, not have it "our" way: that the presumption is against disclosure, unless it is in the public interest, rather than in favour of disclosure, unless there is a public interest. Have I understood the balancing act correctly?
Lord Falconer of Thoroton: The way it works is to ask whether it is within an exemption. If it is, the public authority asks itself whether, in the circumstances of the case, the public interest in disclosing the fact outweighs the public interest in maintaining the exemption. As I said to the noble Lord, Lord Goodhart, that means that one must see which is higher in the scale. If they are equal, as I made clear to the Committee on the previous occasion, one does not disclose. That is how it works.
Baroness Whitaker: In other words, the presumption is against the disclosure.
Lord Falconer of Thoroton: One has to work out what the balance is.
Lord Archer of Sandwell: Then, of course, we are back to our old friend, the tie-breaker. My noble and learned friend's argument is that you sweep everything into the category and then subject it to a harm test. All right, it has been subjected to a harm test so there will be nothing to worry about. However, why have any categories at all? Why not say that every piece of information which anyone ever requests shall simply be subjected to a harm test?
Those who presented the Bill presented us with a list of categories and we have spent a few hours discussing how those categories are to be defined. My noble and learned friend, with commendable frankness, called the provision a "catch-all". I am finding it extremely difficult to understand what is the function of a category if it does not matter what is in it and it is simply subjected to a harm test.
Before I work myself up into a frenzy, at this hour in the evening I had better ask for leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 188 to 190 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 191:
Page 19, line 41, at end insert—
("(3A) In relation to statistical information, subsections (2) and (3) shall have effect with the omission of the words "in the reasonable opinion of a qualified person".").

The noble and learned Lord said: I have already spoken to Amendment No. 191. I beg to move.
[Amendment No. 192, as an amendment to Amendment No. 191, not moved.]
[Amendment No. 193 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 194 to 196:
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Page 20, line 14, leave out from ("by") to end of line 17 and insert ("any Welsh public authority other than the Auditor General for Wales, means—

(i) the public authority, or

(ii) any officer or employee of the authority authorised by the Assembly First Secretary,").

Page 20, line 21, at end insert—
("() in relation to information held by the Auditor General for Wales, means the Auditor General for Wales,").

Page 20, line 22, leave out from ("any") to end of line 28 and insert ("Northern Ireland public authority other than the Northern Ireland Audit Office, means—

(i) the public authority, or

(ii) any officer or employee of the authority authorised by the First Minister and deputy First Minister in Northern Ireland acting jointly,").

[Amendments Nos. 197 to 201 not moved.]
Clause 34, as amended, agreed to.
Clause 35 [Communications with Her Majesty, etc. and honours]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 202:
Page 21, line 9, at end insert ("or dignity").
The noble and learned Lord said: The conferring of honours raises questions of personal confidentiality and the Government believe that it should receive substantial protection under the Bill. The conferring of honours raises such questions not just in relation to the candidates for honours themselves and members of their families, but also in relation to those who contribute to the process of selection. Questions of confidentiality can arise just as easily in regard to posthumous awards. It will be obviously embarrassing, and potentially distressing, for surviving relatives to discover that the deceased was considered but rejected for an honour. The Bill has been drafted in recognition of this and reflects the status quo contained in guidance set out in the White Paper Open Government in 1993 which applied an exemption for honours material for 75 years.
Nevertheless, I accept the need for as much transparency as possible in the honours system. When this clause was previously debated in another place my honourable friend the Parliamentary Under-Secretary of State undertook to look again at the duration of the exemption. The Committee will be pleased to learn that the policy has since been reviewed, and Amendment No. 327 has been tabled to reduce the duration of this exemption to 60 years.
Finally, Amendment No. 202 is merely clarificatory. The term "dignity" refers to peerages, and the amendment ensures that the exemption applies to the granting of peerages as well as meritorious awards. Amendment No. 338 ensures that the corresponding provision in the Data Protection Act is similarly amended. I beg to move Amendment No. 202. I hope that the noble Lord,

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Lord Lucas, accepts that the amendments to which I have spoken achieve what he intends and he will not move Amendment No. 203.
Lord Mackay of Ardbrecknish: Did the noble and learned Lord really intend to refer to peerages or meritorious awards? Are peerages not meritorious awards?
Lord Falconer of Thoroton: The exemption applies to peerages and meritorious awards. I am not sure that I did say "or".
[Amendment No. 203 not moved.]
Clause 35, as amended, agreed to.
Lord Bach: I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty-one minutes before midnight.