Freedom of speech has been done up like a kipper by the lobbying act.
As an organisation, Generation Rent is seriously considering ceasing to campaign from this September until the general election. The frustration we feel at being effectively banned from campaigning during the only time in the electoral cycle when politicians are prepared to listen is shared by many colleagues I have spoken to across the sector.
Parliament has effectively claimed the political discourse as belonging to politicians and the media, with civil society restricted to spending a maximum of 0.008 pence per voter on speaking out on issues.
The insidious effect of this law is not so much the maximum allowable spend, but the low threshold for registration. If I plan to spend £20,000 or more England-wide (£10k thresholds for the devolved nations also apply) then I have to register as a third-party campaigner. However, if I do so, then any donation to me must be permissible and registered as a political donation with the Electoral Commission.
This is absolutely frightening. Imagine I were funded by the Bill & Melinda Gates Foundation to campaign in the UK for HIV treatments for children in the developing world. That would be an impermissible donation because the Gates Foundation is a foreign-based entity. But worse than that, I’m horrified to think what any potential funder would do if I told them I had to register their financial support as a political donation. If they are charities, then they are potentially banned under charity law from making such a donation.
Of course you could "apportion" such donations so they are deemed not to have contributed to your campaign work, but the definition of campaigning in the law is so wide that any unrestricted donation you don’t register might trigger an allegation of being an unregistered political donation, potentially spattering your philanthropic donor with unwelcome publicity.
You have to assess whether politicians are above making unfounded allegations to intimidate you out of campaigning. I think they are not.
And this doesn’t just apply to the September to May "regulated period". It applies to any regulated period for any election, even if you don’t know that election is coming – for example, in the event of a collapse of a coalition government on an unknown future date. This law stifles civil society campaigning between elections as well as in the months before polling day.
Not only is breaking this law a criminal offence rather than a civil one, but the law stipulates that the person committing the criminal act is the "commanding mind" of the organisation. For most of the third sector that means the chief executive and the trustees, and possibly any major funder and their trustees too. In short, the structures of a well-governed organisation mean that either everyone in the leadership has to agree to risk imprisonment or the chief executive has to commit gross misconduct by not consulting the trustees. Quite an inhibition.
But there is something they haven’t thought of. The sanctions against third-party breaches have been well discussed, but there are also major sanctions against politicians – even if they have had nothing to do with your campaign. If you have breached the £9,750 spending limit in one constituency, the election can be voided in that constituency if it is felt that you have influenced the result.
What the third sector needs is a campaign with £500,000, an angry chief executive and no trustees, specifically aiming to void the elections in 30 seats. Once the decision to prosecute is bound to the reality of not knowing who the Prime Minister is for at least three months after the election, you can be pretty sure you have broken a law so badly it is beyond enforcement.
I’m sure that the sector could deliver £500,000 for this, though I’m uncertain such a decision could be made by 19 September, which is the start of the regulated period. The approach I would advocate for more cautious campaigners is a unified branding message.
On all your comms, your posters and your website, put a big black band across the top and in big, white, bold type state "DO NO TAKE THIS INTO ACCOUNT WHEN VOTING".
A unified disclaimer from the entire third sector in all their communications would send a very strong message indeed.