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Lord Monson: My Lords, I too support the amendment. I confess that I began to examine Clause 126 only about 15 minutes ago. The very words used by the noble Lord, Lord Mackay, immediately spring metaphorically to my lips. This is a Henry VIII clause which creates new and undefined criminal offences, presumably with potentially very severe penalties. I am interested to hear the Government's response.

Lord Bach: My Lords, this clause enables the Secretary of State to make detailed provision for the conduct of referendums by order. I make it quite clear that the Bill will not replace the need for specific legislation to authorise the holding of a referendum on a particular issue. But the consideration of such legislation should focus on the key questions; namely, whether it is right to hold a referendum on the particular issue; and, if so, when it should be held and what the question should be. The simple purpose of Clause 126 is to obviate the need to make detailed

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provision on the face of each Bill providing for a referendum to be held as to the arrangements for the conduct of the poll. For example, by far the larger part of the Referendums (Scotland and Wales) Act 1997 was taken up by a schedule setting out necessary modifications to the Representation of the People Act 1983 and to other statutes and regulations for the purposes of those referendums. We cannot see any reason why that kind of matter should not be left to subordinate legislation.

Clause 126 would therefore enable the Secretary of State, after consulting the electoral commission, to make detailed provision for the conduct of a particular referendum by order. In practice, that will mean applying with appropriate modifications the relevant provisions of the Representation of the People Acts and regulations. Therefore, Clause 126(2)(b) specifies that such an order may apply, with or without modification, any provision of any enactment and make different provision in relation to different parts of the United Kingdom. That latter point simply reflects the fact that some aspects of electoral law differ in Northern Ireland and, indeed, Scotland, as compared with the rest of the United Kingdom.

Turning to the creation of offences to which the noble Lord referred, he rightly says that Clause 26(2)(a) specifies that such an order may provide for the creation of offences. There is no sinister purpose behind the provision. Its purpose is simply to apply to referendums those offences that already exist in relation to elections or equivalent offences where the existing offences are inappropriate. The Representation of the People Act creates various offences. Personation is one of them. There are other related offences. Any order under Clause 126 would apply these for the purposes of a referendum.

I should remind the House that there are a number of precedents for this kind of order-making power. For example, the arrangements for the conduct of the elections to the Scottish Parliament and Welsh Assembly rely on similar order-making powers in Section 12 of the Scotland Act 1998--an Act with which the noble Lord is familiar--and Section 11 of the Government of Wales Act 1998.

A process very like Clause 126 was included in a Northern Ireland (Border Poll) Act 1972. When considering the matter, that is perhaps not an Act that comes immediately to noble Lords' minds. That was an Act passed under a different government, albeit many years ago.

Finally, it is worth recording, because if the opposite were true we should have heard much about it, that the Select Committee on Delegated Powers and Deregulation made no recommendation about this or--in passing--any other of the delegated powers in the Bill. If that committee had no difficulty with the power to create offences or to apply other enactments, we do not see any reason for the House to take a different view.

Lord Mackay of Ardbrecknish: My Lords, I am very dissatisfied with that answer because the Minister has

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really failed to address the point. Yes, we had to have schedules to the Referendums (Scotland and Wales) Act, but they were cut-and-paste jobs because there was not a generic referendums Act on the statute book. Yes, we had to have the same cut-and-paste jobs for the Scottish parliamentary elections. But we do not need to have cut-and-paste jobs for general elections because laid down in statute we have the rules governing them. Ministers do not need to come up with elaborate regulations every time we have a general election. They are all laid down. Occasionally we make changes, but we make these changes sensibly in between times.

The Representation of the People Act is on the statute book. It is ready. One presses a button and off one goes. The point about a proper generic referendum Bill is that it would take the cut-and-paste job we had to do for the Scottish referendum, ensure it was general in its application to any referendum, and incorporate that as schedules to the Bill. Perhaps I should have gone to the trouble of so doing. I helped the Government out in July 1997 when they got into a total shambles over the schedules which allowed the referendum to take place. I helped them to set out the details. I rather hoped that they had learned the lesson. It would lengthen the Bill, but I really would not have complained in this case because the rules for referendums would have been set out clearly in a principal Act, just as the rules for general elections are.

I am sorry that the Minister does not see this as an important point. But if we are going to use referendums, one day the Government will have to do that because it is a cumbersome procedure to do cut-and-paste jobs based on general election procedures and make them fit referendum procedures. That is all I was really after in a generic referendums Act. Clearly I did not explain myself well enough. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.15 p.m.

Schedule 16 [Control of donations to candidates: New Schedule 2A to the Representation of the People Act 1983]:

Lord Bach moved Amendments Nos. 207 to 210:

    Page 193, line 18, leave out ("(2)(d)") and insert ("(1)(d)").

    Page 193, line 21, leave out ("(2)(e)") and insert ("(1)(e)").

    Page 193, line 43, leave out ("bequest") and insert ("a bequest or any other form of testamentary disposition").

    Page 195, line 36, leave out sub-paragraph (2) and insert--

("(2) For the purposes of this Schedule any relevant donation received by a candidate or his election agent which is an exempt trust donation shall be regarded as a relevant donation received by the candidate or his election agent from a permissible donor; and section (Interpretation: exempt trust donations) of the 2000 Act (Interpretation: exempt trust donations) shall apply for the purposes of this Schedule as it applies for the purposes of that Act.
(2A) But, for the purposes of this Schedule, any relevant donation received by a candidate or his election agent from a trustee of any property (in his capacity as such) which is not--
(a) an exempt trust donation, or

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(b) a relevant donation transmitted by the trustee to the candidate or his election agent on behalf of beneficiaries under the trust who are--
(i) persons who at the time of its receipt by the candidate or his election agent are permissible donors falling within section 52(2) of the 2000 Act, or
(ii) the members of an unincorporated association which at that time is such a permissible donor,
shall be regarded as a relevant donation received by the candidate or his election agent from a person who is not such a permissible donor.").

On Question, amendments agreed to.

Lord Mackay of Ardbrecknish moved Amendments Nos. 211 and 212:

    Page 196, line 3, leave out ("not less") and insert ("more").

    Page 196, line 17, leave out ("not less") and insert ("more").

On Question, amendments agreed to.

Lord Bach moved Amendments Nos. 213 and 214:

    Page 196, line 24, leave out second ("(7)") and insert ("(6)").

    Page 198, line 43, leave out ("(2) to (10)").

On Question, amendments agreed to.

Clause 129 [Financial limits applying to candidates' election expenses]:

Lord Mackay of Ardbrecknish moved Amendment No. 215:

    Page 93, line 5, leave out ("at") and insert ("whether before, during or after an election on account of, or in respect of, the conduct or management of").

The noble Lord said: In moving Amendment No. 215, I shall speak to Amendment No. 216. Noble Lords will be pleased to hear that these amendments get us away from referendums. They are probing amendments because something has been drawn to my attention about the way the Bill changes the Representation of the People Act 1983.

These amendments deal with candidates' election expenses. It is an important matter but it has been dwarfed by party funding, donation disclosure, Northern Ireland and all the referendum funding questions.

Prior to the Bill being brought before the House, election expenditure was mainly linked to candidate's election expenditure under the requirements set out in the Representation of the People Act 1983. Clause 129 of the Bill seeks to amend Section 76(1) of the existing Representation of the People Act 1983. It removes from existing legislation the statement that:

    "No sum shall be paid and no expense shall be incurred by a candidate at an election or his election agent, whether before, during or after an election, on account of or in respect of the conduct or management of the election, in excess of the maximum amount specified in this section, and a candidate or election agent knowingly acting in contravention of this subsection shall be guilty of an illegal practice".

Nowhere in the proposed legislation is there so clear an indication that any expenses incurred by a candidate prior to the dissolution of Parliament, or in the case of a by-election the occurrence of the vacancy, will count towards their election campaign expenses.

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This might be an oversight, or the Minister may wish to argue that the intention remains the same. However, the proposed Clause 132 of the Bill introduces a new Section 118A for the Representation of the People Act 1983 which in its subsection 2(b) envisages that a candidate can be declared, by himself or by others, as a candidate earlier than at the dissolution of Parliament. However, this section does not make clear the position on election expenditure.

We are told by the Government that the aim of the Bill is to produce a level laying field in the area of national political campaign expenditure. We can argue whether that may or may not be achieved, but I contend that it muddies the water around candidates' constituency campaign expenditure and it is a disservice to election law.

Election law contains many grey areas. I fear that if we are not careful an opportunity will be lost to introduce real clarity in respect of candidates' election expenses.

At every election there are questions raised by one or other candidate that an opponent is taking unfair advantage of existing law or, more often, bending it. Nothing undermines the integrity of a poll more than questionable or illegal acts like those we are seeing at the moment in the American presidential election. I believe that the missing elements of Section 76 of the RPA could be reintroduced into Clauses 129 and 131 of the PPER Bill in subsection (5)(a) of the proposed new Section 90A. That seems like a huge amount of letters--almost an alphabet soup. But I am sure that the Minister has been well advised about what my amendment seeks to do.

The key to when a candidate's election commences is that it should start from the first moment that he or she, or anyone on their behalf--I stress "on their behalf"--takes any action to promote their candidature for an election at which they are subsequently nominated. It could not be simpler. The expenses to be covered would be those for the promotion of the candidature and the conduct or management of the campaign.

I have not cooked this point up out of thin air. People who for many years have operated election law at constituency level are concerned about the change the Bill makes to the 1983 Act and they feel that there may be a serious problem of which the Government have perhaps not thought. I beg to move.

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