Keeping within the rules on lobbying

The lobbying act was passed in January, but the sector's concerns about its effects on charity campaigning have not abated. Sam Burne James looks at the new rules as they take effect

After much debate and concern in the charity sector and beyond, the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act became law on 30 January.

Part 2 of the act, which covers non-party campaigning, continues to cause concern for many in the sector. Joe Irvin, chief executive of the local infrastructure umbrella body Navca, says that the act is "undemocratic and unnecessary" and "deliberately makes campaigning harder". But he says the act should not stop charities from campaigning.

"Charity campaigning is a legitimate, necessary and vital way for the voices of those who are too often overlooked to be heard," he says.

The government insists the act will not prevent charities from speaking out. Lord Wallace of Tankerness, leader of the Liberal Democrats in the House of Lords and one of the bill's sponsors, says: "No one is stopping people campaigning." He argues the act will improve transparency. "It is not unreasonable that third parties should have some financial parameters put on them in the same way that candidates are restricted," he says.

But fears remain that the act will put brakes on charity campaigning, either as a direct result of the act or because of uncertainties about and misperceptions of it.

'Procuring electoral success'

Elizabeth Chamberlain, policy manager at the National Council for Voluntary Organisations, says the key issue "is the test of whether your activity can reasonably be regarded as intended to promote or procure electoral success".

The wording of the test (see below for full definition), which defines when regulated activities become of interest to the Electoral Commission, is not new. It has changed little from the Political Parties, Elections and Referendums Act 2000, which the new act amends. Chamberlain says the PPERA test was difficult enough when it applied only to election material.

If you've never heard of the PPERA, you're not alone, says Rosamund McCarthy, partner at the law firm Bates Wells Braithwaite. "Most charities didn't know it existed at the last election," she says.

McCarthy says charities are actually more likely to break charity law than the PPERA, and must make sure their campaigning is in pursuit of their objects. She suggests that charities might check what they are currently allowed to do and consider bringing a resolution at their next members meeting to allow political expenditure and ensure compliance.

Activities affected

Under the new act, the Electoral Commission has to cover a range of activities beyond the election material it already oversees. These additions include media events, canvassing and certain public events (see below for full list). Not covered is direct communication with "committed supporters" and politicians. Maura Gillespie, head of policy and advocacy at the British Heart Foundation, says: "A lot of our activity is carried out directly with politicians and isn't regulated. We are talking to all the political parties about what they might put in their election manifestos - and that's fine; that dialogue will continue."

But a difficulty still arises if a campaign proves successful. Vicki Bowles, a barrister at the law firm Stone King, says: "If an MP or party picks up on a particular issue, a charity that is already running a campaign on that issue will get caught up in the regulation. Charities must become more politically savvy than they have been, and they should understand when politicians are piggy-backing on an issue".

Levels of expenditure

The amount of money that charities are allowed to spend on regulated activities includes staff costs. Liz Hutchins, a senior campaigner at the environmental campaigning body Friends of the Earth, says: "That might have a big impact on how we go about campaigning. We might need to do much more volunteer-led campaigning in constituencies."

Charities with activities that might be seen as "intended to promote or procure electoral success" must keep a running total of the costs. These cannot exceed set totals, and if the costs go above a certain minimum threshold (see below), the charity must register with the Electoral Commission.

In February the Prime Minister, David Cameron, wrote to Sir Stephen Bubb, head of the charity chief executives body Acevo, saying that the registration threshold of £20,000 would exempt most groups. "Most smaller charities won't be affected," says Lord Wallace. "Unless you're spending that level of money, it won't affect you at all."

But Richard Benwell, parliamentary programme manager at the wildlife charity the RSPB, says the new rules are having an impact. "It's already taking significant staff time to understand the new rules and set up the risk-management and accounting processes that we're likely to need," he says.

Keeping track of money spent will be even more important for charities that campaign in coalitions, because these have to account for their combined costs. This will be tricky, Hutchins of Friends of the Earth says: "Even if you coordinate with another organisation and say 'you do this bit, we'll do that bit', in effect this is working in coalition, so you've got to be careful."

To register or not

The act requires charities to register with the Electoral Commission if they are engaged in campaigning in the run-up to an election. McCarthy believes a big group of about 100 charities should register with the commission. "They should show strength in numbers and that there's nothing to be afraid of," she says. But many charities that fear being seen as political organisations remain reluctant to take what might seem a sensible, cautious step.

Katie Wright, head of policy and government relations at Oxfam, which is undecided on whether to register, says: "The question of registering is not only a slight bureaucratic headache - to register carries huge reputational impact, when we would be doing only what we've always done. It's really undesirable."

Committed supporters and constituencies

Two further specific uncertainties are also causing particular concern: the definition of "committed supporters" and constituency spending.

The former is not mentioned in the act's text, but has arisen from the Electoral Commission's attempts to define what is meant by "the public". Communications with committed supporters are not regulated under the act - which means that the definition of what one is would be crucial and complicated because it is an entirely new legal concept.

McCarthy says: "When charities are collecting data, they could have a tickbox saying 'yes, I am a committed supporter', although this might not necessarily be watertight."

The spending limit of £9,750 in each constituency is also new and potentially problematic. McCarthy cites the example of a poster on a motorway flyover: it might be in a particular constituency, but who is the target - those constituents or the ones living in the constituency at the next exit?

Hutchins of FoE says its discussions with the Electoral Commission indicated it was likely that "only activity deliberately targeted at a constituency should be covered. The commission is approaching that in a sensible way."

A reasonable regulator

The charity sector generally seems to agree that the Electoral Commission is fair and helpful. Bowles of Stone King anticipates it will be light-touch regulation. "I would certainly hope that is the approach they are going to take," she says.

A spokeswoman for the Electoral Commission says: "We're not here to terrify people and say 'if you don't abide by the law, then we'll come down on you like a ton of bricks'; it's all about advising people."

Charities have been urged to engage with the Electoral Commission by providing it with evidence that will inform its definitive guidance, which is due to be published in early July. The electoral regulator is also publishing short interim updates on the new law, but charities eagerly await the full guidance.

The Electoral Commission has been working with the Charity Commission, the Office of the Scottish Charity Regulator and the Charity Commission for Northern Ireland to draw up guidance. The electoral regulator says it faces a large task but lacks the resources to do it effectively, and it is unhappy with the lack of clarity in the letter of the law it will need to interpret.

There are already steps charities can take, but even the definitive guidance is unlikely to banish all confusion. The new law might in practice do little to stop charities campaigning, despite the headache of compliance and documentation. But the fear is that a lack of certainty will discourage organisations and trustees from taking risks.

The lobbying act: the definitions and the numbers

Controlled expenditure is spending on a range of activities that "can reasonably be regarded as intended to promote or reduce the electoral prospects of a political party or parties, or a group of candidates, including parties or candidates who support or oppose a particular policy", according to the Electoral Commission.

Election material was already covered by previous legislation, but the new act adds "certain public rallies and events; press conferences and media events; canvassing and market research; and transport in connection with publicising a campaign", according to the Electoral Commission's guidance.

The regulated period is 12 months for UK general elections and four months for European parliament, Northern Irish assembly, Scottish parliament and Welsh assembly elections. However, the first regulated period, for the UK general election on 7 May 2015, is delayed and will start on 19 September 2014, the day after the Scottish independence referendum.

The registration threshold, above which campaigners must register with the Electoral Commission, is £20,000 in England and £10,000 in the rest of the UK.

The total cap on spending is £319,800 in England, £55,400 in Scotland, £44,000 in Wales and £30,800 in Northern Ireland. No more than £9,750 may be spent in any one constituency.

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