The coalition government always argued that the lobbying act would directly affect only the small number of charities it predicted would have to register with the Electoral Commission as non-party campaigners in order to comply with part 2 of the statute.
But even before the legislation (see "What the law says", below) was passed
in January last year, concerns had mounted that its real impact would be a broader chilling effect, making voluntary organisations less vocal in campaigning and advocating for their beneficiaries. That effect, the argument went, might include charities worrying whether their activities were breaking the law, deciding they would rather be safe than sorry or fearing that they might be the subject of vexatious complaints by people keen to shut them up.
The fear of complaint is particularly chilling, according to Asheem Singh, policy director at the charity leaders group Acevo. "There is a risk that if a parliamentary candidate loses narrowly at the election, they could complain about a charity or campaign in their constituency and subject them to expensive legal action," he says.
The regulated period for the May general election began in September. The Commission on Civil Society and Democratic Engagement, known as the Harries Commission, canvassed 50 charities and campaigning groups and reported in January on another aspect of the chilling effect: these organisations were finding it difficult to work out what the law actually meant for them, which entailed extra work behind the scenes and, in some cases, a toning down of their campaigns.
Rosamund McCarthy, a partner at the law firm Bates Wells Braithwaite, feels the sector has been quieter than in previous campaigns. "If you look at things that happened in 2010, such as pledge campaigns or adverts around the election, I think a lot of charities are now playing it safe, thinking 'we're not going there'," she says.
Elizabeth Chamberlain, senior policy officer at the National Council for Voluntary Organisations, agrees that some charities might be "toning down their campaigns rather than stopping entirely". Women's Aid and the Vegan Society both say they have been more cautious in the run-up to the election (see Case Studies, below).
On the other hand, two large charities, the Salvation Army and the RSPCA, say they have not changed their approaches as a result of the act (see Case Studies, page 34). And Liz Hutchins, senior campaigner at Friends of the Earth, says it has not toned down its campaigns, although it has found it very tricky to work out which activities are regulated by the act.
"I knew it would be hard, but I hadn't appreciated fully how difficult it would be to work out what a regulated activity is," she says. "We've got whole spreadsheets of activities that we're not sure about." The Charity Finance Group is planning to start collecting evidence on the work that finance teams have had to carry out in this area.
Andy Benson, a director of the National Coalition for Independent Action, believes the act was part of a broader attempt by government to stifle the voice of charities. He feels that the act was made deliberately unclear in a "masterly exercise in obfuscation, ensuring that voluntary groups remain confused about what is or is not permissible under the law".
The complexity for charities stems partly from the fact that this is the first election for which the law has been in force, and that the act is widely seen as poorly written and ambiguous. Paul Ridout, a partner at the law firm Veale Wasbrough Vizards, says: "The law leaves a lot of discretion as to how costs are allocated and who would count as a supporter of a charity; that flexibility also creates uncertainty about how it might be enforced."
There has been concern that while larger, better-resourced organisations would be able to cope with the act, smaller charities would not have the resources and know-how to make the right decisions. But there is also a view that the spending thresholds for registration are high enough to permit many smaller organisations not to worry.
Ferg Slade, policy, communications and resources manager at Nottingham Community and Voluntary Service, says he had substantial fears about the bill as it was first proposed, but these subsided as a result of the amendments made in parliament. "When it did come out, we had a look and realised it would affect only a handful of larger organisations," he says. However, Singh of Acevo points out that the constituency spending limit of £9,750 is not hard to reach, given that staff time is included in the costs.
Jonathan Brinsden, a partner at the law firm Bircham Dyson Bell, questions the extent of the chilling effect, saying that things should not change for most charities. "Charities that never intended to make ripples or be controversial seem to be taking the view that it's business as usual," he says. "There might be an aggregate chilling effect among the true campaigning charities, but those that are just releasing reports or research as part of their regular work do not appear to be overly concerned."
Chamberlain of the NCVO points out that the fundamental legal duty of charities not to be partisan has not changed. She says the NCVO has directed members with concerns to CC9, the Charity Commission's guidance on political activity, and other commission resources, so that they understand the over-arching legal position. "In most cases people have been reassured by that and concluded that they don't need to register'," she says.
Ciaran Price, policy officer at the Directory of Social Change, also points out that the overriding need to remain neutral has not changed. He says: "This law changes nothing fundamentally about what charities can do in respect of campaigning - in effect, it duplicates regulation. But it has created unnecessary bureaucracy that is compelling charities to waste considerable resources."
The widespread suggestion that the law was rushed and botched has led many in the sector to call for its repeal, and Labour's promise to do that and replace it with a new, as yet unspecified, regime has been welcomed. Others, including the NCVO, have preferred to wait for the review of the legislation by Lord Hodgson of Astley Abbotts before calling for repeal or changes.
WHAT THE LAW SAYS
Part 2 of the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 says that if charities or other campaigning organisations spend more than £20,000 in England or £10,000 in the rest of the UK on "regulated activities", they must register with the Electoral Commission as non-party campaigners.
The commission's guidance says regulated activities are media events, transport for a campaign, the production of election materials, canvassing and market research, and public events if those activities can "reasonably be regarded as intended to influence voters to vote for or against political parties or categories of candidates, including political parties or categories of candidates who support or do not support particular policies or issues". The last three activities are regulated only if they are aimed at the wider public, rather than just at supporters of the organisations.
Non-party campaigners cannot spend more than £319,800 in England, £55,400 in Scotland, £44,000 in Wales, £30,800 in Northern Ireland or £9,750 in any one constituency on regulated activities in the regulated period before elections. That period will normally be 12 months for UK general elections but began in September 2014, after the Scottish referendum, in respect of the 7 May 2015 general election. Of the 60 organisations that have registered as non-party campaigners, nine are charities. An organisation can register at any time during the regulated period and must then report regulated costs and certain donations to the commission.
The commission says its regime for considering allegations of breaches of the law contains safeguards "intended to prevent frivolous allegations". Breaches of the law could include an organisation failing to register with the commission despite spending more than the threshold, spending more than the total limits, or failing to properly report its spending to the regulator. The regulator can apply various sanctions, including fines of between £200 and £20,000, and orders that certain actions be taken or that an organisation must stop a certain activity. It could also apply no sanction if the breach was trivial or if a sanction would be disproportionate. Some offences would be referred to the police.
A spokeswoman for the commission says it would not comment on ongoing investigations. "However, we can confirm that there are currently no ongoing allegations or cases involving charities," she says.
TWO THAT HAVE REGISTERED WITH THE ELECTORAL COMMISSION...
Helen Cameron, head of public affairs at the Salvation Army, says the charity was always clear that it wanted its campaigns to communicate with the general public rather than just its supporters – one of the tests of whether spend on that activity is regulated. She says the charity registered with the Electoral Commission because the inclusion of staff time in regulated activity spending totals means it will spend more than £20,000 during the regulated period.
Cameron says the charity realised some people might incorrectly perceive its online campaign, Asking Questions That Matter – which features videos of various members of the public interviewing politicians – as being party political. "There is a danger that something so targeted at the democratic process and featuring videos of some politicians would be seen as party political," she says.
Cameron says the Salvation Army has not changed its plans as a result of the lobbying act, but she understands that it might be harder for organisations that don't have her charity's resources to stand firm in the same way. "We can certainly understand how smaller organisations might be daunted by this," she says.
David Bowles, assistant director of public affairs at the RSPCA, says that the charity's approach to compliance takes the Charity Commission's CC9 guidance as its first port of call. "CC9 is the starting point, so one should not do anything outside of CC9, and then one should apply the Electoral Commission guidance as a sort of golden standard on top," he says.
"Our trustees decided in the end that it would be safer to register, although actually we don't believe that we will be caught by the act in terms of the amount of expenditure or the types of work we're intending to do."
Bowles says that the RSPCA decided it was safer to register because of the risk that someone might report the charity to the Electoral Commission had it not done so. "Registering doesn't cause us that much of a problem," he says. "It doesn't cost us anything, really, apart from a bit more staff time, and in terms of reputation it's far better to be safe than sorry."
Asked whether the charity's campaigning activities would have been any different had the act never seen the light of day, Bowles's answer is simple: "No."
...AND TWO THAT HAVE NOT
Polly Neate, chief executive of Women's Aid, says that the charity would never have spent £20,000 – the threshold for registration with the Electoral Commission – on regulated activities. But it was concerned about the message that registering would have sent out. "If we registered, that's like saying we have a partisan agenda," she says. "We don't, of course."
An England-wide federation of 250 local domestic violence charities, Women's Aid has to be particularly careful of the rules about joint campaigns, which state that the overall spending of partnered organisations counts towards individual spending limits for each organisation. "It's difficult to monitor total cost," she says. "We don't know how many of the organisations would take it up, and £20,000 is not a lot of money across 250."
Another area of concern, Neate says, was asking prospective parliamentary candidates to sign a domestic violence awareness pledge: the charity has opted not to publish the names of candidates who signed. Neate says: "Suppose more candidates from one party signed it - would we be seen as influencing people to vote for that party?"
The Vegan Society
Amanda Baker, senior policy officer at the Vegan Society, says the lobbying act has placed a substantial internal burden on the charity. "Our council of trustees has required extensive support from our chief executive and myself to be able to determine how we can work legally within the act," she says. Without the act, Baker says, the charity "probably would have been shouting a lot louder".
The charity was worried early in the act's passage through parliament about the possibility of volunteer costs counting towards thresholds for registration with the Electoral Commission. This was scrapped, to the relief of Baker. Three volunteers had been key to its election campaigning, she says: if the measure had been adopted, the charity would have had to register as a non-party campaigner.
Baker was frustrated by the Electoral Commission's guidance on complying with the act, which she says did not provide proper reassurance, but says she is happy overall that the charity has done what it needs to do. "I'm confident that we're compliant, but I wouldn't say I'm comfortable - there's always that nagging fear," she says.