The Independent View: It’s not alarmist to raise concerns about government plans for non-party campaigning

The government ministers leading on the transparency of lobbying, non-party campaigning and trade union administration bill need to make their minds up. Last week, the newspapers were briefed that the government was “open to changes” to the bill following severe criticism from senior charities. This week, Tom Brake and Chloe Smith are lining up to attack 38 Degrees for “scaremongering” over the bill. So what is the truth?

Unlock Democracy has campaigned for several years now for the introduction of a statutory lobbying register and so has taken a keen interest in this bill. Our main focus of the bill is on the section which covers lobbyists; after all it is a result of years of lobbying scandals that this legislation has even been tabled. For some time now, we’d heard some worrying noises from the coalition about cracking down on non-party or “third party” campaigning in a disproportionate way. We’d hoped that these rumours would end up coming to nothing, or at least be restricted to the odd tweak here or there to the existing legislation.

Sadly however, having read through the legislation over the summer, I have to report that our worst fears have been realised. Without extensive amendment, this legislation will have an appallingly detrimental affect on the democratic culture of the UK.

It is not at all clear why the coalition is in such a rush to introduce these new laws on third party campaigning. Tom Brake writes about the risk of “Super-PACs” influencing elections in the UK while Chloe Smith writes that “We want to prevent our political system becoming one where opaque and unaccountable groups spend millions attempting to influence the outcome of an election.”

While accusing 38 Degrees of being “alarmist”, if anything can be said to be shroud-waving, it is this. The practice of political action committees spending vast amounts of money in US elections has arisen for one simple reason: political TV and radio advertising. This is currently not allowed under UK law, a law which has recently been upheld by the European Court of Human Rights.

More to the point, why would millionaires and rich corporations bother setting up the UK equivalent of political action committees when they can simply fund political parties directly, gaining for themselves unparalleled access to party leaders and even potentially membership of the House of Lords in the process? If the government is truly concerned about millionaires buying elections, they would sort this fundamental problem out: they have repeatedly failed to do so.

While it is clear that the amount that third parties have progressively spent more over the last few general elections, in 2010 it still amounted to less than £5,000 per constituency, less than 10% of what political parties spent overall. And for the most part this was spent by charities and trade unions which are mass membership organisations. Again, if rich millionaires influencing the electoral process was the problem it would be a relatively trivial matter to cap the amount any individual could spend or donate to a third party but this is not being proposed.

So the question is whether charities, trade unions and pressure groups should be allowed to campaign during elections, and which of their activities should be regulated. At the moment, only campaign work which is aimed at the general public counts towards election expenditure for third parties, just as is the case for political parties. Also like political parties, things like core staff time and internal communications are exempt – not least because it was felt that splitting such things between “campaign” work and regular work is nigh on impossible. But without further explanation about how it is to be calculated, the new bill will force third parties (but not political parties) to include these things into their expenditure limits. On top of that, the national expenditure limit will be capped at £390,000 across the UK (fixed at 2% the spending limit political parties can spend).

At the heart of this controversy is interpretation of the whether or not campaigning will be deemed, as Chloe Smith writes in her letter, to “promote or procure electoral success or otherwise enhance the standing of parties or candidates”. That’s already a pretty wide definition and the legislation broadens this even more widely. Anything at all “in connection with … promoting or procuring electoral success” or “otherwise enhancing the standing” of any candidate or party will be deemed to be an election expense.

If Oxfam say that international aid is a good thing and a UKIP candidate campaigns to scrap international aid, then Oxfam’s statement will potentially enhance the standing of that candidate’s opponents. Friends of the Earth’s campaigning during the election period would count as long as a candidate or party disagreed with them. While under the old law, expenditure would only count if an organisation was deliberately attempting to influence the electorate, under the new law (to quote the explanatory notes) “Any campaign expenditure which satisfies the definition outlined by new section 85(3) will be counted as controlled expenditure, regardless of whether those incurring the expenditure intended it (or also intended it) for another purpose.”

The ministers’ reassurances are not worth very much when the legislation itself is quite explicit and it is not “scaremongering” or “alarmist” to point this out. It is highly ironic that while they are proposing the most light touch regulation possible on lobbyists, they are proposing to hit civic society organisations with some of the most burdensome legislation it is possible to conceive. The generous explanation is that the ministers either misunderstand the legislation or how charities and non-profit organisations work in practice.

Either way, this legislation came from nowhere, in stark contrast to how changes to election law have conventionally been developed. With no cross-party agreement and such great scope for unintended consequences, the only sensible way forward would be to drop this section of the bill and go back to the drawing board and preferably return with a set of proposals that would truly tackle taking big money out of politics in the way that Chloe Smith and Tom Brake claim is their priority.

* Alexandra Runswick is the Director of Unlock Democracy.

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11 Comments

  • Maybe the problem is with the word “promoting” in (a).

    @ Joe Otten
    I think you have not applied “promoting”.

    The clause can be read, “For election purposes” means for the purpose of or in connection with—(a)promoting (iii)candidates who hold (or do not hold) particular opinions or who advocate (or do not advocate) particular policies or who otherwise fall within a particular category of candidates”. And this is what Alexandra Runswick is interpreting that if a charity supports an opinion and a candidate either holds it too or do not hold it they will come under this law.

    The clause can also be read, “For election purposes” means for the purpose of or in connection with—(a) promoting (ii)one or more registered parties who advocate (or do not advocate) particular policies”. And this is what Alexandra Runswick is interpreting as meaning that a charity could have problems if a political party supports a political policy of a political party.

    I believe that to ensure that Alexandra interpretation can’t be used either “promoting” need to be removed or the wording changes to make it clear that if a candidate or political party support an opinion or policy of a charity the charity can still campaign for its opinion or policy without it being covered by this clause.

  • Andrew Colman 30th Aug '13 - 7:06pm

    I’m worried that part 2 of the proposed “Lobbying Bill” threatens a vital part of British democracy. Many well respected campaign groups, charities and community groups are warning that they’d be gagged for the entire year before a general election.

    NCVO briefing:
    http://blogs.ncvo.org.uk/wp-content/uploads/2013/08/our-briefing-on-the-Transparency-of-lobbying-bill.pdf

    Electoral Commission briefing:
    http://www.electoralcommission.org.uk/__data/assets/pdf_file/0007/156580/Transparency-of-Lobbying-Non-Party-Campaigning-and-Trade-Union-Administration-Bill-Second-Reading-Briefing.pdf

    The view of an electoral law specialist:
    http://www.libdemvoice.org/the-independent-view-concerns-about-lobbying-bill-are-not-alarmist-35938.html

    Legal opinion from BWB
    http://www.bwbllp.com/knowledge/2013/08/29/bwb-warns-new-laws-on-non-party-campaigners-pose-a-serious-threat/

    I am very concerned about this bill. I assume the intention of the bill is to stop rich and powerful interests subverting democracy. But this bill threatens to the complete opposite, gagging groups of ordinary people who get together to campaign on particular issues such as 38 degrees whilst leaving corporate mouthpieces (eg the gutter press) untouched.

    A word of warning, we have been witnessing the horrific events in Syria and debating military intervention. We should remember that dictatorships and civil wars often begin with groups of people, often minorities being marginalised and denied a voice. This can easily lead to people taking up arms to defend their interests.

  • “…whilst leaving corporate mouthpieces (eg the gutter press) untouched.” – Would it ? Why ?

  • ‘ “…whilst leaving corporate mouthpieces (eg the gutter press) untouched.” – Would it ? Why ? ‘

    What provisions in the Bill would have the same limiting effect, on the mainstream media’s expression of opinions on candidates and parties, as the provisions discussed above will impact grassroots campaign groups?

  • Please, please read this article and follow the link to the detailed legal opinion provided by a QC with expertise in electoral law. http://www.civilsociety.co.uk/governance/news/content/15983/legal_advisor_backs_up_ncvo_lobbying_bill_warning If that doesn’t convince you of the dangerous illiberalism of this Bill, I don’t know what will. (I know that legal opinions are tough to read but it’s important to know what the effect of the Bill will be and that it will be quite different from what we are being told.)

  • David White 6th Sep '13 - 12:34pm

    Well said, Kath. This is an awful Bill, and promises which have made to change it are so nebulous as to be totally unconvincing.

    All truly liberal LDs should strive to prevent enactment in anything like its present form. – I’m doing my best for freedom and liberty. My (NewLab) MP knows exactly how I feel, as do several petitioners, and LDV readers.

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