Electoral Commission urged to rethink lobbying act guidance

The law firm Bates Wells Braithwaite has sent an eight-page document to the commission criticising a lack of consultation and the way the guidance is organised

Electoral Commission
Electoral Commission

Pressure is building on the Electoral Commission to rethink its guidance on the lobbying act after the law firm Bates Wells Braithwaite criticised the document as confusing and suggested significant amendments.

An eight-page document from BWB, sent to the Electoral Commission on Friday, criticises the commission’s failure to consult on the guidance before it was published, and the way in which the guidance is set out and organised.

The National Council for Voluntary Organisations will also write to the commission today to make various recommendations. "We think additional clarity in a number of areas of the guidance would be helpful," said a spokesman for the umbrella body.

The criticism comes after the charity leaders group Acevo, the online campaigning platform 38 Degrees and the international NGOs association Bond sent a joint letter to the commission calling for urgent changes to the guidance.

The Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014, which received royal assent in January, tightened the rules on what campaigners can spend on certain qualifying activities in the period ahead of national elections.

The Electoral Commission published 300 pages of guidance on the rules in July, before the start of the first regulated period, which will begin on 19 September.

BWB’s submission says there are fundamental problems with the way the purpose test – how a campaigner decides if their activities could be considered as procuring electoral success for a particular party or candidate – is described and the law interpreted. "We fear uncertainty alone will deter legitimate campaigning which ought not to be regulated in law," it says.

The explanation of the public test – the way an organisation decides if its activities are directed to the public rather than supporters or a private, closed group – is also unclear, it says. "It would be helpful to some organisations if there could be a more extensive definition of who is the public," the guidance says.

BWB says more information is needed on the relevance of previous legislation and on the sanctioning regime for those breaking the rules, among other areas.

Rosamund McCarthy, a partner at BWB, said the document was based on its conversations with charities and campaigners, and had been made available to all 120 people who attended a meeting organised by Acevo, Bond and others earlier this month.

She said the document had also been sent to the UK’s three charity regulators. "We are very concerned that the resources of the Electoral Commission and the charity regulators could be taken up with unnecessary complaints based on a misunderstanding of the legal test, so we do hope they are sympathetic to the points that we raise," she said.

A spokesman for the Electoral Commission said: "Feedback on the commission’s guidance from non-party campaigners, which range from charities and faith groups to trade unions and business groups, has largely been positive.

"One of the things people have told us is that they would like more fact sheets to help them better understand the rules, and we are currently working on these."

Asheem Singh, director of public policy at Acevo, said that the Electoral Commission had responded to its letter, but he was dissatisfied with the response. "They undertook to make some changes in response to that, but my instinct is that the changes are little more than superficial, which isn’t good enough," he said.

"It is increasingly appearing as if we might have to take stronger action. We are taking legal advice on that right now, we are looking at all of our options."

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