HL Deb 24 October 2000 vol 618 cc203-12

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

  1. (a) any money or other property is transferred to the permitted participant or to any person for the benefit of the permitted participant, and
  2. (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)—
  3. 204
    1. (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
    2. (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—

  1. (a) any conference, meeting or other event organised by or on behalf of the permitted participant,
  2. (b) the preparation, production or dissemination of any publication by or on behalf of the permitted participant, or
  3. (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)—

  1. (a) the making of any payment in respect of—
    1. (i) any charge for admission to any conference, meeting or other event, or
    2. (ii) the purchase price of, or any other charge for access to, any publication;
  2. (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—

  1. ("(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—
    1. (i) the loan had been made, or
    2. (ii) the property, services or facilities had been provided,
    on commercial terms, and
  2. (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 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 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 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 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 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 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 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.

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.

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 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 moved Amendment No. 242K: Page 75, line 13, leave out (", displayed or distributed").

[Amendments Nos. 242L and 242M not moved.]

Lord Bach moved Amendment No. 242N: Page 75, line 25, leave out ("display or distribution").

[Amendment No. 243 not moved.]

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 moved Amendment No. 243B: After Clause 120, insert the following new clause—