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Gagging the Sock Puppet: Impact of Anti-Lobbying Clauses on Scientific Research

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About The Author

Amy Ling (Former Private Law Manager)

Amy graduated with a first in Philosophy from The University of Manchester in 2012. Following three years working within the social housing sector, Amy is currently studying for her LPC and will begin a training contract at a city firm in September 2016. Amy is an accomplished mooter, and was on the winning team in the 2015 JustCite International Mooting competition. Outside of the law, Amy is a keen runner.

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In 2012, a report by Christopher Snowdon on behalf of the think-tank Institute of Economic Affairs claimed to identify fundamental problems with the way government funding was used by many charities.

The report argued that the grants given by the government were in many cases being used to lobby the government for more money, or to give the impression that there was wide-spread public support for certain issues. Snowdon argued that this creates a ‘sock-puppet’ society which ‘subverts democracy and debases the concept of charity… is an unnecessary and wasteful use of taxpayers’ money’.

Three years later, MP Eric Pickles referred directly to this report when announcing, on behalf of the Department for Communities and Local Government, new measures to crack down on the use of government funding for lobbying activities. He announced the government would be introducing a new ‘anti-lobbying, anti-sock puppet clause’ so that ‘if external groups are lucky enough to receive grants or win contracts with taxpayers’ money, it shouldn’t be spent on lobbying for more taxpayers’ money or more red tape’.

Whether or not charities do act as “sock-puppets” is a hotly debated matter. However, one of the apparently unforeseen consequences of Mr Pickles announcement was that contracts for scientific research would also be swept under with the new clause, potentially censoring the findings of crucial, and perhaps life-saving, studies.

The Role of Government Grants

A government grant is a gift of government funding (or “taxpayer’s money”, depending on your viewpoint) to specific individuals, businesses or charities for a specific project or purpose. They are often seen as an attractive form of gaining investment as no interest is payable, and so are particularly sought after by charities, research organisations and start-up businesses.

For example, until relatively recently, a significant amount of social housing construction was funded by government grants given to housing associations: between 2011 and 2015, the Home and Communities Agency invested £4.5 billion in such projects. The Arts Council, a registered charity which funds arts projects and education, is due to spend £1.1billion in government grants on museums, education programs and other creative projects over the next three years.

Such grants may have conditions attached, though the level of restrictions placed on such grants vary. For the Art’s Council, the funding terms include requirements to: appoint an Accounting Officer who is responsible for safeguarding the public funds received; provide information when required for Parliamentary Questions; and, comply with the Managing Public Money guidance for any proposed spending which is ‘novel, contentious or repercussive’. Failure to abide by such conditions can lead to a requirement to repay all of the money.

This method of funding represents huge investment on the part of government. A report by the Audit Office in 2014 found that grants equated to £292billion of expenditure in 2011, 41% of all government expenditure. However, the report also identified a lack of oversight and guidance in managing the system which has led to a lack of transparency and inefficacies, with a huge number of grant programs operating in isolation (the Government Grants Register, which sets out the number of grants provided in 2014/2015 demonstrates the number in operation).

Given the huge amount of money distributed through grants, any wide-scale change to terms is therefore likely to have a significant impact.

The Anti-Sock Puppet Clause

The suggested wording of the new clause, to be used in all new and renewed grants, is as follows:

The following costs are not Eligible Expenditure [items on which the grant can be spent]: Payments that support activity intended to influence or attempt to influence Parliament, government or political parties, or attempting to influence the awarding or renewal of contracts and grants, or attempting to influence legislative or regulatory action.

This clause seems particularly wide, covering not only lobbying for further funding, but also activities in which the organisation could be taken as trying to influence Parliament, such as advertisements, appearances on television or social media campaigns.

Matthew Hancock, cabinet office minister, argues the clause is justified because ‘[t]axpayers’ money must be spent on improving people’s lives and spreading opportunities, not wasted on the farce of government lobbying government.’ The rationale is that organisations such as charities would be able to continue to engage in campaigning and lobbying activities, but only through use of privately raised funds, in the same way as private organisations.

Perhaps unsurprisingly, the proposed clause has caused great concern among charity groups who do not feel advocating their causes to the government is a farce. Stuart Etherington, Chief Executive of the National Council for Voluntary Organisations, called the proposal ‘insane’, ‘draconian’ and ‘tantamount to making charities take a vow of silence’. The Bishop of Oxford, Lord Harries, suggested that such a requirement would go against the moral duty of charities to tell the government how to improve their work, such as how to help children in poverty. One charity included within the pilot of the scheme, Shelter, has also recently raised that it was not told beforehand that it was participating and had ‘at no time been asked whether the clause has any impact on our lobbying work’.

Unintended Consequences: Censorship of Scientific Research

Whilst the debate as to the principle of separating government funding from other sources in charities rages, the practical effect of the clause on charities is yet to be seen. At least in theory, as they are still able to raise funding directly from the public for campaigns, then the ability to lobby government may not be greatly diminished.

However, one of the apparently unintended consequences of this change is that it also affects the grants given to the academic community. Government grants form a core stream of revenue for many research groups and bodies – either through salaries in the NHS or universities, or via research bodies such as the Medical Research Council, Royal Society and Academy of Medical Sciences. Such grants are essential in enabling researchers to conduct independent studies on a wide-range of areas (the problems of industry-funded drug trials are just one example of why non-corporate funding is preferable).

Unlike charities, such groups often cannot rely on an independent funding stream such as individual donations. Some researchers could therefore be left in a position where they cannot afford to publicise their findings, as to do so using any of the project funding would amount to ‘activity intended to influence’ the government where such research is in conflict with prevailing government policy.

Moreover, where salaries are paid via the grant given for a specific research project, time classified as work hours could be considered to be paid for by the grant, and therefore covered by the conditions. For example, if a researcher whose salary is grant funded wished to attend a conference to discuss how their study demonstrates that changes should be made to health policy, or to give evidence at a governmental committee, they would need to do so outside of work hours or on holiday time in order to avoid breaching the conditions. 

In view of these potential consequences, the Science and Technology Committee chair, Nicola Blackwood, wrote to the Secretary of State for Business, Innovation and Skills, Sajid Javid, in March this year. She raised concerns that adding the clause to grants affecting academic bodies would ‘create a barrier to evidence-based policymaking’ and create a chilling effect: ‘researchers will become reluctant to present to us the policy recommendations that arise from their work… [they] may also become unwilling to take on advisory roles… and may even feel uncomfortable speaking at conferences where policymakers are present, for fear of falling foul of this clause’. This was echoed by Professor David Price of UCL, who believes that the application of the clause to research grants would ‘undermine academic autonomy and … prevent the policy and law-making communities from benefiting from researchers’ insights’.

Following these concerns being raised, and an online petition, the Universities and Science Minister, Jo Johnson, has attempted to reassure researchers by announcing that the restrictions will not apply to those grants given to Research Councils (such as the Medical Research Council), the Higher Education Funding Council, or National Academies. The Cabinet Office response states that they are ‘continuing to consider the comments of all interested parties’, and are ‘pausing the implementation’ for all new grants in order to review the form of the clause. Both Johnson and the Cabinet statement state that further guidance will be published in due course.

The Importance of Evidence-Led Policy Making

Assuming that the government does keep to Jo Johnson’s promise on exempting specified academic research bodies, problems still remain. For example, what is the impact where a research group are granted funding directly from a government department? As above, with thousands of grants available, it is possible that a project could be funded directly through a scheme other than the main channels. Surely any commitment to continue supporting scientific research must exempt all grants for this purpose.

Ultimately, this issue is important from a legal perspective because case law is based on interpretation of legislation. Legislation is based on policy proposals, and those policy proposals should be based on sound evidence. Distortion or failure to take account of the evidence leads to poor policy making, which in turn distorts the legal framework in which we operate.

A good example of such distortion is drug policy within the UK. There is a wealth of data which now suggests that de-criminalisation of drugs is correlated with positive outcomes and that, conversely, the “war on drugs” has had no measurable impact on supply or use. For example, following the decriminalisation of all drugs in Portugal in 2001, drug overdose deaths are at 3 per 1 million citizens, compared with 45 per 1 million in the UK. HIV infections and drug related deaths have also significantly decreased. Despite this, the Psychoactive Substances Act 2016, which will criminalise those using legal highs, will come into law later this month.

Further, there are also problems which arise when considering that scientific research often conflicts with the interests of profit-making entities. Unless the exemption is appropriately implemented the following situation could occur: a research program that receives funding through a government initiative finds that a particular chemical recently introduced into the market has damaging health implications. They are prevented from attempting to influence government policy as to the use of the chemical due to the grant funding clause.  However, the company which produces the chemical can use its own private funding to attempt to influence government policy through professional lobbyists in favour of decreasing restrictions on the use of the chemical. Hearing only one side of the story, the government amend regulations in favour of the profit making body.

This sets a dangerous precedent that goes against the public interest. Without the ability for researchers to put their findings – however embarrassing for the government – into the public domain, there is a serious risk that the resulting law can become either skewed in the interest of large corporations or flimsy and lacking in an evidential basis. Both introduce inequities and inefficiencies, neither of which are in the interests of the taxpayer.

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Tagged: Administrative Law, Public Law

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