§ 3.20 p.m.
§ THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM)
My Lords, I beg to move that the Bill be now read a third time.
§ Moved, That the Bill be now read 3a,—(Lord Stonham.)
§ On Question, Bill read 3a, with the Amendments.
§ Clause 9 [Broadcasting during elections]:
§ LORD STONHAM moved Amendment No. 1:
Page 8, line 19, leave out from beginning to ("above") in line 31, and insert—
("(1) Pending a parliamentary or local government election it shall not be lawful for any item about the constituency or electoral area to be broadcast from a television or other wireless transmitting station in the United Kingdom if any of the persons who are for the time being candidates at. the election takes part in the item and the broadcast is not made with his consent; and where an item about a constituency or electoral area is so broadcast pending a parliamentary or local government election there, then if the broadcast either is made before the latest time for delivery of nomination papers, or is made after that time but without the consent of any candidate remaining validly nominated, any person taking part in the item for the purpose of promoting or procuring his election shall be guilty of an illegal practice, unless the broadcast is so made without his consent.
§ (2) For purposes of subsection (1) above—
- (a) a parliamentary election shall be deemed to be pending during the period ending with the close of the poll and beginning—
- (i) at a 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; or
- (ii) at a bye-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 Gazette in accordance with the Recess Elections Act 1784, the Election of Members during Recess Act 1858, the Bankruptcy (Ireland) Amend-mend Act 1872 or the Bankruptcy Act 1883; and
- (b) a local government election shall be deemed to be pending during the period ending with the close of the poll and beginning—
- (i) at an ordinary election, five weeks before the clay fixed as the day of election in accordance with section 57 of the Rep-representation of the People Act 1948 or, in Scotland, by or under the Local Government (Scotland) Act 1947; or
- (ii) at an election to fill a casual vacancy, with the date of publication of notice of the election.
§ (3) Subsections (1) and (2).")
§ The noble Lord said: My Lords, I beg to move Amendment No. 1. This Amendment substitutes for the present Clause 9(1) of the Bill an amended subsection (1), changed in two important respects which I will explain to your Lordships in a moment. It also adds a new subsection (2) which clarifies by means of definitions the new concept of "election pending" introduced into subsection (1). At the same time I should like to discuss Amendment No. 2, which makes an addition, consequential on subsections (1) and (2), to subsection (5) of Clause 9: this subsection deals with ward elections in the City of London. I should like to discuss with it Amendment No. 5, which makes the necessary provision in the Fourth Schedule to the Bill for incorporating the new subsection (2) in any future edition of the Statutes published by authority.
§ The purpose of these Amendments is twofold. Your Lordships will recall that when we last discussed this difficult clause—and it is difficult—at the Committee stage on February 6 I spoke on the Motion, That the clause shall stand part of the Bill. I then said, in effect, that the clause—in particular subsection (1)—seemed to the Government to be about as right as we could make it for achieving its objects. The chief of these 280 objects were, and are, first, to control (broadly on the lines recommended by the Speaker's Conference) personal electioneering; and, secondly, to leave the broadcasting authorities perfectly free, subject to their own rules of balance or impartiality, to broadcast news, reports and comments on elections. I also said that one of the main anxieties of the broadcasting authorities was over the lack of an anterior time limit. That is a point in time at which the restrictions should begin. I gave it as the Government's view, as at that time, that, on balance, the absence of an anterior time limit was right in principle. Despite the willingness I expressed to consider any Amendment that might be tabled at the Report stage, no such Amendment appeared.
§ However, I have since had the benefit of further helpful discussions with the noble Lord, Lord Hill of Luton, Chairman of the B.B.C., and my noble friend Lord Aylestone, Chairman of the Independent Television Authority, with their officials, for whose understanding and cooperation I express my grateful thanks. As a result of this discussion, the Government have been impressed by the great help which, in their view, the broadcasting authorities, the candidates and everyone else would derive from the fixing of an anterior time limit—they would, so to speak, know far more clearly where they stood—and also by the consideration that the existence of such a time limit would be generally beneficial. It would serve to focus the scope and application of the control imposed by subsection (1) on personal electioneering and, indirectly, sharpen the distinction between broadcasts of that kind and broadcasts consisting of news and objective reporting of candidates' activities.
§ Accordingly, my right honourable friend the Home Secretary and I have had second thoughts. You will see that subsection (1) of Clause 9, in the form in which it is now before you in the Amendment, contains an anterior time limit, in that subsection (1) operates only for the period during which an election is "pending". The meaning of "pending" is defined in the new subsection (2). Various anterior dates have been fixed, according to the nature of the particular election, but they have one feature in 281 common: they are all dates after which there can be no doubt whatever that an election is actually in progress.
§ On two points in the new subsection (2) I would offer a word of explanation. The references in paragraph (a)(ii) to Acts dealing with bankruptcy are not so whimsical as might at first appear. The hard fact is that bankruptcy of a Member is one of the reasons for declaring a Parliamentary seat vacant, and the Statutes mentioned lay down the procedure to be followed by Mr. Speaker in such an unfortunate event. The other point arises on paragraph (b)(i) of subsection (2), where the anterior date for a local government ordinary election is fixed at five weeks before the day of election. In England and Wales, as your Lordships will be aware, notice of a local government election has to be given not less than 20 working days in advance—which in practice is about four weeks. But in Scotland notice of an election has to be given rather longer ahead. The period of five weeks which is in the Amendment will be consistent with the law in all parts of Great Britain.
§ So much for the anterior date. But there is one other change in subsection (i) as it appears on the Marshalled List. In the Bill as I introduced it to your Lordships, subsection (1) of Clause 9 required a candidate's consent to the making of an election broadcast, but did not set out how that consent was to be obtained. We have taken the opportunity to clear this up. Under the opening words of subsection (1) of the Amendment, it will not be lawful for an item in which a candidate takes part—the words "takes part" are important—to be broadcast if he does not consent to the broadcast being made. This applies throughout the entire pending period from the anterior date to the close of poll. Securing the candidate's consent thus becomes a requirement of law. The duty of complying with that requirement will—indeed can only—fall on those responsible for making the broadcast; that is, the broadcasting authorities. But your Lordships will observe that no specific sanction or penalty is attached to this requirement. Failure to comply with it would in theory be an offence—if I may coin a phrase, a "statutory Common Law misdemeanour". In practice, I am confident 282 that the broadcasting authorities, as the responsible bodies they are, will take care to carry out the duty laid upon them.
Apart from these two changes, and despite the recasting of the subsection necessary to incorporate them, the general object— and, we think, effect—remains the same as those of Clause 9(1) as introduced. As I have said, personal electioneering will be controlled; news and reporting will not be controlled by the clause. The control is effected by the provision that a candidate is guilty of an illegal practice if he does one or other of two things,
for the purpose of promoting or procuring his election".
In parentheses, I would mention that those words, "promoting or procuring", are deliberately and advisedly taken from Section 63 of the Representation of the People Act 1949 (which deals with election expenses; in particular, on propaganda and electioneering) and would, if one may hazard an opinion, be construed accordingly.
§ The first thing a candidate must not do is to take part at all in an election broadcast while an election is pending; that is, after the anterior date as defined in subsection (2), but before nomination day. But no offence would be committed if he was shown on screen in a broadcast (perhaps a news item) in which he did not take part. The second thing a candidate must not do is, between nomination day and polling day, to take part in an election broadcast, unless the other candidates in that constituency or ward also take part or agree to its going forward without their taking part. Election broadcasts of the kind permitted by the clause will doubtless often follow the pattern which the Speakers' Conference presumably had in mind—namely, the set-piece studio broadcast in which all the candidates sit down together with a chairman or question master and all have an equal opportunity to advance their views.. But forms of broadcast other than the set studio piece are possible, and may well be lawful provided all the candidates agree. For example, a broadcast may begin by showing one or more candidates at work, canvassing even speechmaking. So far so good, provided the candidate or candidates do not "take part". I shall say a word about the expression "take part" in a minute.283
§ But there will come a point at which news and reporting crosses the borderline and shades into personal electioneering. It often happens, when a camera team is doing an election story in a constituency, that a reporter will hand the microphone to a candidate and ask him to "say a few words". At that point, but not before, the candidate would be clearly taking part in the broadcast. He would be less than human if he failed to use this opportunity to advance his cause; indeed he would scarcely be worth his candidature. Provided this happens after nomination day, and provided all the other candidates are treated in the same way, whether or not on the same occasion or even the same day, or at any rate have given their agreement, this kind of broadcast would be within both the letter and the spirit of the control intended by the clause, and the candidate would not be committing an offence.
§ But if these conditions are not fulfilled and the onus will be on the broadcasting authorities to see that they are (it is the only onus that does fall on them, apart from their own rule of balance)—the candidate who thus exploits the potent medium of broadcasting and television for his personal electoral advantage will be caught by the clause, and in my view rightly, because he will be taking an unfair advantage. But I ask your Lordships to note that it is the candidate who would be guilty of the illegal practice. The broadcasting authorities, if they have used their best endeavours to arrange equality of treatment and to secure the consent of the other candidates, will have complied with the requirement imposed on them by the opening words of subsection (1). If they have not been able to do this, and one candidate nevertheless uses broadcasting for personal electioneering, the offence is his, not theirs. A candidate might, for example, grab a microphone and speak into it without their consent, or against their wishes. If he did the offence would be his.
§ I undertook to say a word about the words "takes part". This is the key phrase in subsection (1). It is similar to the wording used in Section 37 of the Children and Young Persons Act 1963. This provides that a child shall not take part, among other things, in a broadcast performance unless licensed. In practice this is taken to mean that a tele 284 vision recording of a crowd scene, or of an activity involving children collectively, is not prohibited. In our view, the same principle will apply to broadcasting at the time of an election. "Taking part" must involve active and conscious participation. Read together with that other key phrase, "promoting or procuring", it provides, I think, a sufficient touchstone to distinguish between personal electioneering (which, as I have said, the clause controls) and news and reporting (which, I repeat, are not affected and remain subject only to the broadcasting authorities' own rules of balance).
§ I hope your Lordships will forgive this somewhat lengthy explanation, but I know you will agree that everyone should understand the position. As I said at the Committee stage, this is a difficult and complex matter, perhaps the most difficult and complex in the whole Bill. The Government have, as will be obvious, given it most careful thought, and have not hesitated to think again where second thoughts seemed desirable. We have gone a long way—a very long way since the first introduction of the Bill in another place—to meet the views of the broadcasting authorities. We think we have now got the clause about as explicit as it can be made, and we are confident that the provisions set out in the Amendments now before your Lordships will not cause difficulty to the broadcasting authorities, to the candidates or, should it ever come to that, to the courts. My Lords, I beg to move.
§ 3.39 p.m.
§ LORD BROOKE OF CUMNOR
My Lords, this is indeed a complex matter, and I have no doubt that if your Lordships decide to agree to these Amendments their effect will be scrutinised with great care in another place, where honourable Members will be even more closely interested in their effects than any of us here can be. I certainly do not think the noble Lord's explanation was a word too long. If I understand them aright. I am inclined to welcome this group of three Amendments as a definite improvement on the Bill as it stood, certainly from the standpoint of the broadcasting authorities.
If I remember rightly, it was my noble friend Lord Windlesham who raised in Committee questions about the not wholly satisfactory character of Clause 9 as it 285 stood. The noble Lord, Lord Stonham, was good enough to say that if practical improvements could be suggested he would be pleased to look at them. That was very helpful. I think the reason why no Amendments were tabled on the Report stage was because it was believed at that time that the whole matter was under further, careful investigation by the broadcasting authorities, and it would have been premature to put down an amateur Amendment if the passage of a few more days between Report and Third Reading was likely to have the happy result that the Government would put down an Amendment of their own as an outcome of that examination.
Whether this new plan is wholly satis factory to the broadcasting authorities I am not myself informed, but I think my noble friend Lord Aberdare will wish to say a word or two in this debate, particularly as my noble friend Lord Windlesham is unfortunately prevented from being present to-day. I can see how much depends on the interpretation which the courts may put on the words "takes part". It so happens that I was responsible for those words in the 1963 Children and Young Persons Act, but I know the law too well to trust for certain that words which are operating successfully in one field of public affairs will operate equally successfully in another. Nevertheless, for my part I desire to express appreciation to the Government for these Amendments, and I greatly hope that when they are looked at with care, both by your Lordships and in another place, they will be approved as a genuine improvement.
§ LORD ABERDARE
My Lords, perhaps I may say just a few words about this series of Amendments, particularly as I have had a very long connection with the B.B.C., although I have no official connection with them at the moment. May I first of all echo what my noble friend Lord Brooke of Cumnor has said in thanking the Government, and particularly the noble Lord, Lord Stonham, for the sympathetic way in which he listened to the representations made by the broadcasting organisations, as a result of which he has brought forward this series of Amendments? I think I should be right in saying that I might also associate the Independent Television Autho 286 rity with this expression of thanks, since the noble Lord, Lord Aylestone, is muzzled by the Addison Rules and my noble friend Lord Windlesham is unable to be here.
As my noble friend Lord Brooke of Cumnor said, the crux of the matter is how the courts will interpret these words "takes part". What the noble Lord, Lord Stonham, has said has made it perfectly clear what is in the Government's mind. As I understand it, an ordinary studio programme would obviously involve the candidate's "taking part". Equally, from what the noble Lord said, newsreel shots of a candidate canvassing or speaking at hustings would not be "taking part". But there might be a kind of midway occasion on which a candidate was addressing a meeting in a hall and the television cameras were there recording both visually and what lie was saying; and one hopes, again, that this would not be covered by the words "taking part". It would be a newsreel type of shot coming in the sort of constituency reports which are familiar at election times. It seems to me from what the noble Lord said that the crux of the matter is who are the people the candidate is primarily addressing. If he is addressing a television audience through the means of the television camera, then he is actively "taking part". If he is addressing his constituents and happens to be taken by a television camera while doing so, then for the purposes of this Bill he is not "taking part" in the programme.
I am very grateful to the noble Lord, Lord Stonham, for the assurances he has given on this matter. We just have to hope that the courts will take the same view when they come to interpret the Bill; and it is helpful, at any rate, that there is a precedent in the Children and Young Persons Act. But I hope I understood the noble Lord aright when he said that if he found that the courts were not interpreting these words as Parliament wishes them to be interpreted then he would come back and amend the Bill so that it would reflect what we all wish to happen.
§ LORD STONHAM
My Lords, I am most grateful for what the noble Lords, Lord Brooke of Cumnor and Lord Aberdare, have said about this matter. I have been looking at this as if I was 287 myself a candidate. In fact, I was a candidate once—indeed, not once, but five times. I cannot recall on any of those occasions the broadcasting authorities ever showing any desire to put either my face or my views on the screen. But, that apart, all the questions I have asked have been asked in the light of situations which I know to exist; and we have of course had the advantage of the discussions, to which I referred, with my two noble friends, and they have put to us, as it were, situations, and have posed the question: Are these covered? In all cases the words which I now ask your Lordships to approve for insertion in the Bill have covered all the situations satisfactorily and leave no dubiety.
The noble Lord, Lord Aberdare, asked whether I would give an assurance in this matter. This, of course, is an assurance that I can give. But, my Lords, in this we have of course taken the highest legal advice open to us. The Amendment has been drafted with the utmost care and has been considered very carefully indeed, in order to ensure that it achieves the objects which I stated. It is clearly impossible, with any legislation, to be absolutely certain that the courts will interpret it as the Government of the day, responsible for the legislation, hope they will; and I can only say that on the best advice available to me the clause should be interpreted in relation to the situations I envisaged in the manner I have described. It will be given scrutiny—as the noble Lord, Lord Brooke of Cumnor, said, very careful scrutiny—in another place; and I am glad of that. But in so far as it is humanly possible to be sure, we feel that this clause is as right as we can now get it, subject to the acceptance by your Lordships of these Amendments.
§ On Question, Amendment agreed to.
Page 9, line 19, at end insert ("but for purposes of subsection (1) above a ward election shall be deemed to be pending during the period beginning in the case of an annual election three weeks before the day fixed for the election and in other cases with the day on which the precept is issued, and ending in all cases with the day of the poll (or, if no poll is taken, with the day fixed for the election)").—(Lord Stonham.)
§ On Question, Amendment agreed to.288
§ 3.48 p.m.
§ LORD STONHAM moved Amendment No. 3:
Page 36, line 47, at beginning insert—
("(1) In Schedule 4, in paragraph 2, for the words from 'any householder' to the agent or factor of any such person' there shall be substituted the word persons'.")
The noble Lord said: My Lords, I beg to move Amendment No. 3, and I should like at the same time to deal with Amendment No. 4, which is to Schedule 3: at page 41, line 14, column 3, to leave out from "Schedule 4" to "paragraph" in line 16. The Fourth Schedule to the Representation of the People Act 1949 sets out the provisions which may be made in regulations as to registration, and so on. Paragraph 2 of the Schedule reads as follows:
Provisions authorising a registration officer to require any householder or person owning or occupying any land or premises within the area for which he acts, or the agent or factor of any such person, to give information required for the purpose of his registration duties".
Lines 14 to 16 on page 41 of the Bill would repeal the words:
… or person owning or occupying any land or premises within the area for which he acts, or the agent or factor of any such person
following the abolition of the non-resident franchise. As the noble Lord, Lord Brooke, will appreciate, the effect would be that regulations under the Representation of the People Act 1949, Section 42, could include provisions authorising a registration officer to require any householder to give information for the purpose of his registration duties; and the Fourth Schedule to that Act, in paragraph 12(1)(a), would also enable the regulations to include provisions imposing penalties on householders who were summarily convicted of having failed to comply with, or of having given false information in pursuance of any request by, the registration officer. But this might not be enough.
§ On reflection, it is considered that to limit the field of the registration officer's inquiries to householders, as the Bill now stands, might reduce the registration officer's powers too far. There are many people, apart from householders, from whom he would require information for 289 registration purposes: for example, managers of hotels or of seamen's residential clubs; hospital administrators, occupiers of factories with resident caretakers, owners of tenements containing a number of inhabitants. If such persons fail to give the registration officer information, or give him false information, they should, like householders, be liable to a penalty. These two Amendments would enable regulations (corresponding to Regulations 22 and 70 of the Representation of the People Regulations 1950) to require information to be obtained from such persons and to make them liable to a penalty if they failed to give it.
§ Fresh regulations will be laid before Parliament for approval following the passage of the Bill. The present maximum penalty in Regulation 70 is £20 and this is likely to be increased to £50. The Speaker's Conference recommended an increase. The provision in the Bill as introduced was limited to removing words from the 1949 Act. It was therefore appropriate to Schedule 3 to the Bill (Repeals). The first of the Amendments now proposed amounts to a textual change of the 1949 Act. It is therefore appropriate to Schedule 2 to the Bill. Technically the change is not a repeal. What previously appeared as a repeal is no longer required as such: hence the second of the two Amendments. I beg to move Amendment No. 3.
§ LORD BROOKE OF CUMNOR
My Lords, we can examine the regulations when they come to be laid; but as one who feels very strongly that everything possible should be done to improve the accuracy of the electoral register my first reaction is to welcome these Amendments as increasing the power of the electoral registration officer to get the register right.
§ On Question, Amendment agreed to.
§ Schedule 3 [Repeals]:
Page 41, line 14, column 3, leave out from ("Schedule 4") to ("paragraph") in line 16.—(Lord Stonham.)
§ On Question, Amendment agreed to.290
Page 43, line 11, column 1, after ("Section 9(1)") insert ("and (2)")—(Lord Stonham.)
§ On Question, Amendment agreed to.
§ Moved, That the Bill do now pass.—(Lord Stonham.)
§ On Question, Bill passed, and returned to the Commons.