Lobbying bill means charities might fear criminal prosecution if they speak out, lawyer says

Helen Mountfield QC of Matrix Chambers warns the government's proposals could have a 'chilling effect on freedom of expression'

Helen Mountfield QC
Helen Mountfield QC

The government’s new lobbying bill is likely to leave charities fearing criminal prosecution if they speak out on matters of public interest and concern, a QC with expertise in election law has warned.  

The National Council for Voluntary Organisations asked Helen Mountfield QC, of Matrix Chambers, for advice about the impact on charity campaigning of the proposals in the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill.

The NCVO has already raised concerns about how the bill could affect charities’ freedom to speak out and is today due to meet Chloe Smith, minister for political and constitutional reform, Andrew Lansley, leader of the House of Commons, and Tom Brake, deputy leader of the House of Commons, to discuss the proposals contained in the bill.

In response to a request from the NCVO for advice on how the bill might affect charities, Mountfield says that provisions in the bill are likely to impose substantial new regulatory hurdles on what they can say and restrict their ability to comment on matters of public interest.

"Uncertainty about what the law requires is likely to have a chilling effect on freedom of expression by putting small organisations and their trustees and directors in fear of criminal penalty if they speak out on matters of public interest and concern with a view to affecting the law on relevant issues," she says in her advice.

The Cabinet Office has said that its intention was not that campaigning by charities or voluntary sector organisations would be caught by the legislation. However, Mountfield says the view of the Electoral Commission and her instructing solicitors is that many charities and VSOs do fall within the definition of third party.

The bill, which will have its second reading in the House of Commons tomorrow, contains proposals to make it a criminal offence to spend more than £390,000 on campaigns that affect European, national and local elections.

Mountfield says: "The restrictions and restraints are so wide and so burdensome as arguably to amount to a disproportionate restraint on freedom of expression."

The NCVO has given a copy of the advice to the Cabinet Office and the Political and Constitutional Reform Committee, which is examining the bill.

The body has called on the government to put its proposals on hold to give them the chance to consult.

In a statement  by the Cabinet Office ahead of the meeting, Smith said: "My fellow ministers and I are very happy to listen to the concerns and ideas of organisations affected by this legislation, but I hope to be able to put the NCVO’s mind at rest that we do not intend to capture a huge swathe of their membership who are not already registered as third party campaigners.

"At the 2010 general election, very few charities were registered as third parties. Provided they continue to campaign as most of them always have – that is, they are not promoting the electoral success or otherwise enhancing the standing of parties or candidates – charities will not be affected by this legislation.

"However, we have also been clear that we want to take unaccountable money out of politics. So the bill does seek to regulate the spending of organisations seeking to promote a particular outcome of an election."

The Northern Ireland Council for Voluntary Action has also today issued a statement strongly criticising the new bill.

Seamus McAleavey, chief executive of Nicva, said: "This bill appears to be badly thought through and will have shocking consequences if it becomes law in this format. Every day in Northern Ireland groups of people come together to raise awareness of issues that concern them and get support from MPs to make positive changes in their community. These new laws will have a serious impact on their ability to do this."

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