Does the lobbying bill really gag charities?

Sometimes I like to read bills that are before parliament just for fun. I also have to do it for work. I’m not expert, I’m not a lawyer, and I don’t always know what various clauses mean and what their impact will be. But give me some guidance notes, some advice and I can usually make a decent attempt at decoding the peculiar form of words used to craft law.

Except yesterday. It wasn’t the first time I tried to understand this particular piece of legislation, earlier in the summer I was alerted to concerns about the impact of the Transparency of lobbying, non-party campaigning and trade union administration bill so took a look – that’s far too long a title so I’ll stick to lobbying bill, but it’s also been tagged the gagging bill by some of its critics… more of that to come.

My analysis is not complete, it might be wrong, and part of the reason for writing this is to work out whether I’ve got it wrong and whether you can help.

This bill is a mess, there’s no getting around that, it tries to address concerns about the access of lobbyists, regulate campaigning by non-party groups, and reform rules on trade union membership. The first part is ineffectual, the second controversial, and the third clearly partisan. On lobbying, it will only cover a small number of lobbyists, and only cover their meetings with ministers and permanent secretaries. On trade union membership, some of the goals of what is being endeavoured are valid but in this bill at this time, before parliament yesterday as the Trade Unions Congress opens today? It seems like a very partisan move.

So onto the non-party campaigning. The hue and cry has come out over recent weeks reaching a crescendo yesterday that this bill will stop charities from speaking out against or in favour of policy positions, especially in the twelve months prior to an election. Once again, let me reiterate, I want advice as to whether I’m interpreting this correctly.

Political parties are regulated in the money they can spend campaigning for election. The Electoral Commission also cover the activities of other groups referred to as ‘third parties’. These are groups who are not political parties, but their activities and campaigning are considered to be seeking to influence a voter’s choice. The bill cuts the amount of money that can be spent before it can be declared, it widens the scope of what is covered – most notably to cover staff time, and is alleged to widen who is covered by these rules to those whose actions have the affect of influencing the outcome of an election, even if that was not its purpose.

I spent a lot of yesterday searching what in the bill does this, and I failed to find it, I repeatedly heard it cited as stopping charities, churches, campaign groups, political websites, think tanks, etc, from expressing political opinions in the run up to an election. Asked twitter for help and it let me down. The closest thing which backs up these fears, which if valid are very legitimate, is the legal opinion provided for the NCVO. The key issue is summarised on their blog as “The wording is quite technical but we’ve moved away from looking at whether campaigning activity‘ can reasonably be regarded’ as ‘election material’ to looking at whether activity can be deemed ‘for electoral purposes’ which may have ‘the purpose of or in connection with affecting the prospects of parties or candidates’.”

Clause 26(3) defines the meaning of election purposes, and is where this shift in description takes place. However, the legal opinion, which is worth a read if you’re a geek and want to know about charities and electoral law, comments in paragraph 51: “The real vice of the new definition is the lack of clarity, and the consequent lack of certainty as to when expenditure (of time and/or money) ought to have been included as ‘for electoral purposes’.”

The government swear blind they’re not changing the definition of a third party and it is not their intent to capture charities, voluntary organisations or faith groups in these criteria. What makes all this more complicated is that charities are regulated in regards to their actions around elections by both The Electoral Commission and the Charity Commission.

The bill may create sufficient confusion to create a chill and cause charities to limit their political campaigning, it might even at a push prevent them from doing so. But the bandwagon that’s started rolling and snowballed this week has not prevent it as this. It has suggested this is an attempt to gag charities, it has suggested it is an assault on free speech, and all with very little reference to what the bill actually says.

This bill might be targeted in its attack on Trade Unions, and disagree with that as you will, but charities are not the intended victim. And what, what if, the confusion around the impact on charities is being used as a shield to deflect attention from the Trade Union aspect of the bill, so a bill is criticised, mocked and opposed, but done so with a more sympathetic guise?

Andrew Lansley was in a conciliatory mood before the House of Commons yesterday, he pledged to listen to concerns, and was willing to make amendments or insert an additional clause to clarify the government’s intent.

Currently most charities and voluntary organisations are not registered as third parties. The law before parliament does not change who would be classed as this but The Electoral Commission have previously commented that many charities may well already fall under the definition of a third party.

I’m not defending the bill, it’s an absolute mess. But what if at its core is a kernel of a good idea. What if those engaged in campaigning on policy issues which favour one party or candidate should be regulated in their funding, what if stopping organisations becoming the equivalent of American Political Action Committees is a good idea?

And what if websites such as Labour List or Conservative Home should be regulated? Where does the line between a media organisation with a political viewpoint and an organisation campaigning for the success of a political party lie? What about think tanks whose policies are identikit to those of political parties? What about groups that are proxy for political parties waging war over the airwaves without the controls imposed on parties?

What if charities are too party political? I think charities should be political, I think churches should be political, I think they should campaign, I think they should protest against injustice. But there is a difference between being political and working for the advantage of a political party. Sometimes the actions of a charity, and the issues they focus on may be so closely aligned with those of a particular political party, as to contribute to its electoral success. And the charity might know that the electoral success of a certain party or politician is more likely to secure policy developments that it approves of.

How do you draw the line between when a political party takes up a policy promoted by a charity or voluntary organisation, and when an organisation’s policy aims are intentionally furthered by the victory or loss of certain candidates?

A lot is said about cleaning up politics and the influence of charities shouldn’t be exempt. When money is donated to parties to contribute to their success there is rightly careful scrutiny as to its origin and impact. I think it is reasonable that other organisations with political intent furthered by the success or failure of those political parties bear the same level of scrutiny.

This bill should be amended, reformed, and quite probably dropped. But just because organisations aren’t political parties doesn’t mean their political activity should not be regulated.

I think some of the questions you ask are the result of lazy journalists constantly saying the Lobbying Bill is to control/prevent *charities* from carrying out election campaigning. It isn’t – the controls would apply to anyone, any group, any local groups of residents and any company. If there is an argument that charities should be subject to different rules to individuals or companies or resident groups, then it would make most sense to do this in the body of law that already exists to govern charities.

So if we set aside the charities point for a moment to think about how the Bill affects any person/group who may want to say something about policies or politics at a period now defined as a whole year before an election, the change in definition from one based on intent to one based on effect is a serious worry. The formal Explanatory Notes produced by the Government to be read alongside the Bill say the change means “The definition of “for election purposes” does not rely solely on the intent of the third party; the effect of the expenditure must also be considered. Any campaign expenditure which satisfies the definition outlined by new section 85(3) will be counted as controlled expenditure, regardless of whether those incurring the expenditure intended it (or also intended it) for another purpose.”

In other words, I could publish and distribute leaflets calling for my local hospital to be saved and run a very successful campaign that made the issue of the hospital closure a very high profile issue in my local town. As part of that I might hold various photo-stunts or public meetings which local politicians of all parties were asked to lobby the health authority that was deciding whether or not to close the hospital – which was the decision my campaign aimed to affect. This decision may be due to be made 6 months before an election, I would have no intention or need to affect the election.

However when the election arrived, one candidate might decide to put the hospital closure issue (whichever way the decision had gone) at the heart of his election campaign, his leaflets might feature photographs of himself at campaign events I had previously organised to show his longstanding support, or use slogans my campaign had used in the past. His rival may argue fewer, larger hospitals were a better solution – or just feel it necessary to stay quiet on the issue because it was his party in power that had proposed the closure in the first place.

If the result in my constituency then turned out to be heavily against the trend across the country and in similar constituencies, and local opinion polling showed the hospital issue to be key to a large proportion of voters in the area when it came to deciding who to vote for, then it is possible that the “effect” of expenditure on my hospital campaign could be judged in a court to have changed the outcome of the election. Had the campaign I had run with no interest in influencing the election cost more than the spending limits (or even it hadn’t but I had not kept accounts or registered it because I had no idea it would have such an effect) I would be guilty of a criminal act.

I don’t think the important argument is the accuracy of the word “gag” in describing the chilling effect this situation could have on people who want to stand up for themselves, their communities or issues they care passionately. It is whether this is acceptable in a free country.

One thought on “Does the lobbying bill really gag charities?”

Martyn says:

September 8, 2013 at 8:45 pm

I think some of the questions you ask are the result of lazy journalists constantly saying the Lobbying Bill is to control/prevent *charities* from carrying out election campaigning. It isn’t – the controls would apply to anyone, any group, any local groups of residents and any company. If there is an argument that charities should be subject to different rules to individuals or companies or resident groups, then it would make most sense to do this in the body of law that already exists to govern charities.

So if we set aside the charities point for a moment to think about how the Bill affects any person/group who may want to say something about policies or politics at a period now defined as a whole year before an election, the change in definition from one based on intent to one based on effect is a serious worry. The formal Explanatory Notes produced by the Government to be read alongside the Bill say the change means “The definition of “for election purposes” does not rely solely on the intent of the third party; the effect of the expenditure must also be considered. Any campaign expenditure which satisfies the definition outlined by new section 85(3) will be counted as controlled expenditure, regardless of whether those incurring the expenditure intended it (or also intended it) for another purpose.”

In other words, I could publish and distribute leaflets calling for my local hospital to be saved and run a very successful campaign that made the issue of the hospital closure a very high profile issue in my local town. As part of that I might hold various photo-stunts or public meetings which local politicians of all parties were asked to lobby the health authority that was deciding whether or not to close the hospital – which was the decision my campaign aimed to affect. This decision may be due to be made 6 months before an election, I would have no intention or need to affect the election.

However when the election arrived, one candidate might decide to put the hospital closure issue (whichever way the decision had gone) at the heart of his election campaign, his leaflets might feature photographs of himself at campaign events I had previously organised to show his longstanding support, or use slogans my campaign had used in the past. His rival may argue fewer, larger hospitals were a better solution – or just feel it necessary to stay quiet on the issue because it was his party in power that had proposed the closure in the first place.

If the result in my constituency then turned out to be heavily against the trend across the country and in similar constituencies, and local opinion polling showed the hospital issue to be key to a large proportion of voters in the area when it came to deciding who to vote for, then it is possible that the “effect” of expenditure on my hospital campaign could be judged in a court to have changed the outcome of the election. Had the campaign I had run with no interest in influencing the election cost more than the spending limits (or even it hadn’t but I had not kept accounts or registered it because I had no idea it would have such an effect) I would be guilty of a criminal act.

I don’t think the important argument is the accuracy of the word “gag” in describing the chilling effect this situation could have on people who want to stand up for themselves, their communities or issues they care passionately. It is whether this is acceptable in a free country.