Sam Burne James: Gagging to get rid of the gagging act?

There has been a lot of talk about the chilling effect of the lobbying act, but hard evidence remains limited, writes Third Sector's senior reporter

Sam Burne James
Sam Burne James

I have spent a fair bit of time over the past few weeks speaking to people about the lobbying act, putting together a feature that begins on page 32 of the May edition of Third Sector, out this week. A feeling I got from this, and previous experiences, is that a number of people are not really speaking their mind about the act.

They come in two groups, the first being those who doubt that the act is as bad as has been suggested but who feel – correctly, I would say – that comments to this effect will be met by those arguing for the act’s abolition with hostility and allegations of treachery against the sector, rather than being welcomed as a valid contribution to a reasoned debate.

For my feature, I tried to get comment from one individual who at a recent event had argued that the sector was wasting too much of its time worrying about an act that was only a minority concern; but this person didn’t want to expand on this, and I feel that this was partly because of a fear of making enemies in the sector by speaking openly on such a matter. On another occasion, I was told that the comments of someone who questioned whether the act would really catch many charities were "not helpful" – the subtext being that it was wasn’t helpful if this person let facts or evidence get in the way of clamouring for this allegedly disgraceful legislation to be ripped to shreds.

The second group is those who want the act to be scrapped and are more outspoken than the evidence allows in order to strengthen the argument for repeal. I spoke to one person who opposed the act, who conceded that there wasn’t any firm evidence that it had caused a chilling effect, but didn’t want to go on record saying this, knowing that they would be putting their neck on the line.

The subject also remains also a matter of contention between the two knights of the sector. Sir Stephen Bubb, head of the charity chief executives body Acevo and one of the act’s biggest critics, commented in forthright terms last year about the apparent incomprehensibility of the Electoral Commission’s guidance on the act. But his views were dismissed by Sir Stuart Etherington, his counterpart at the National Council for Voluntary Organisations, who accused him of going over the top. "I wince when I read exaggerated claims about the impact of the act, as such misrepresentations could be deeply harmful," he blogged in reply.

My fear is that talk of a chilling effect, and frequent reminders of how damaging the act is, become self-fulfilling prophecies in the sense that the more charities hear they are likely to be shut up by the lobbying act, and the more they are told about the gagging motives alleged to lie behind it, the more they will be defensive and scared when they deal with it.

The NCVO takes the reasonable position of preferring to wait for fuller evidence on the act to be gathered and published, including the official review of the legislation by Lord Hodgson, before calling for it to be scrapped or amended. But many are not so patient. Indeed, I sense that many in the sector had already made their minds up that there would be a chilling effect even before the lobbying act passed into law.

Since those asking for the act to be abolished say they are doing so in defence of free speech, the fight against the lobbying act should surely be democratic, open-minded, objective and collaborative. It often is, but it lets itself down when it is not – the reason I’ve chosen to anonymise my examples above is that I have learned how fraught and sensitive this situation is. If free speech is the issue at hand, it is worrying that sections of the sector could be gagging themselves or trying to gag others as they strive to get rid of what they call the gagging act.

Sam Burne James is a senior reporter for Third Sector. This article was first published on the Third Sector blog

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