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The politics of political campaigning

About The Author

Former Author (Assistant Editor)

Author is a King's College London Law graduate, currently working as a corporate paralegal for a firm based in South West England. Author is due to begin his BPTC at the University of Law in September 2015, having attained a scholarship from Middle Temple.

It has been dubbed the ‘gagging law’ by charities, but despite many attempts to derail it, the Lobbying Bill will receive Royal Assent sometime in the coming weeks. The express intention of the government is to reform the way third parties campaign in the year leading up to an election and make it more transparent. Despite major concerns being raised by external organisations, most prominently 38 Degrees and Members of Parliament, the Bill scraped through the Lords after some ministerial concessions. I wrote a piece previously on the government plan to restrict third party rights to judicial review and many charities are becoming increasingly concerned that their role within society will be fundamentally undermined as a result of the current government policies.

The overall result of the legislation is that individuals and organisations involved in political campaigning will have to register with the Electoral Commission and be subject to limits as a consequence of their registration. The Bill has 4 Parts, with the first and second being the most contentious. The first is concerned with defining who is a lobbyist and what action should be taken by those found to be within such a definition. Part 2 is concerned with the specific limits on spending that a lobbyist or campaigning organisation can make within an election year.

These changes should be considered in light of the current Chancellor’s and Deputy Prime Minister’s comments on the subject of campaigning before they made it to government:

Campaigning is an essential part of a healthy democratic society, which allows people the freedom of expression to speak out and actively challenge the status quo.

George Osborne (current Chancellor), 2005.

Without citizens taking up campaigns, it would be much more difficult to force opinion formers to focus on issues that people care about. It is a crowded field with politicians, media and other opinion formers.

Nick Clegg (current Deputy Prime Minister), 2005.

Members of cabinet therefore understand the vital work that charities and local organisations do to promote worthwhile causes. But this legislation will undoubtedly cause a reduction in activities by such groups because of the bureaucracy involved.

Impact on Charities and other campaigning NGOs

The result of the legislation is that people or organisations who are not standing as candidates or political parties will have to register with the Electoral Commission if they spend above a certain amount of money on political campaigning. One of the government’s key aims is to cap the overall spend on lobbying and prevent the situation that has evolved in the US of ‘Super-PACs’ managing to wield sizeable influence in the electoral race. The limits on spending will apply to any person or organisation that spends £20,000, or £10,000 in Scotland, Wales or Northern Ireland, on campaigning during the election year. The overall limit for those registered will be £450,000 on all political campaigning with two additional caveats. Firstly, there is a limit of £9,750 for each individual or organisation on the amount that can be spent on campaigning in an individual constituency and secondly staff costs of charities will count towards both totals. The inclusion of staff costs will have a major impact on charities’ abilities to campaign, especially if the campaign is focused around advice lines or major advertising campaigns as they require very significant funding.

It is necessary to highlight the problems that such a constituency limit will cause to local groups and causes. If anti-HS2 campaigners were to decide to run a parliamentary candidate during an election year, their spending would be capped because of its ‘political’ nature. They would therefore be able to use only £9,750 to campaign including staff costs, whereas a candidate from any major party could call to their aid the central party funds. This contrast is drawn clearly when one considers that the government have already spent £1.2million on pro-HS2 PR and would not be subject to any restrictions under the legislation. This shows that important issues, which are usually raised around election time, may go unheard in 2015 because of organisations being put off with the threat of criminal sanction if they fail to comply with the regulation.

‘Consultant Lobbyists’

A fundamental part of the legislation is the creation of a register of ‘consultant lobbyists’ and it is hoped that this will bring more openness to the once shady area of lobbying. However, the register will have a very restricted scope, as it will only apply to those within the definition provided in clause 2 (which will become section 2 of the subsequent Act).

2 Meaning of consultant lobbying

(1) For the purposes of this Part, a person carries on the business of consultant lobbying if—

(a)    In the course of a business and in return for payment, the person makes communications within subsection (3) on behalf of another person or persons,

(b)    The person is registered under the Value Added Tax Act 1994, and

(c)    None of the exceptions in Part 1 of Schedule 1 applies.

It is important to note that this will exclude those who campaign on behalf of their own interests. Two prominent examples of lobbying that would still not require registration under the new scheme would be News Corp’s lobbying on the recent BSkyB bid and the meetings between ministers and industry concerning minimum alcohol pricing. Regarding the latter a Guardian editorial observed rather dryly that:

the triumphant result [of the Bill] is that the drinks colossus Diageo as an example, could go on meeting junior ministers and special advisers to argue against, say, minimum pricing for alcohol, while Alcohol Concern (annual income, less than £1m) would have to jump through a chilling series of hoops in order to take part in any kind of campaigning.

During the final debate in the Lords there was a question raised about whether ‘special advisers’ should also be included in this register as lobbyists, but it was not put to a vote because of a lack of support for such an amendment. These advisers have grown in number extensively during the last and current Parliament and now have considerable influence over the direction of future policy. They are not officially employed by the government and will often have extensive commercial interests outside of their correspondence with ministers. This deeply undermines the government’s argument that the legislation was driven towards transparency.

The Lobbying Bill was rushed through Parliament very quickly and has seemingly failed to take into account many of the legitimate concerns of charities and NGOs who will unfortunately be drawn into this bureaucratic process. There are undoubted positives to the scheme, as it will lead to a requirement for registration of some active lobbyists but it does have serious flaws. The legislation will not fully achieve what was envisaged as commercial bodies will still be able to exert their influence over Westminster policy because of the narrow scope of the provisions. Charities will be drawn into the scope of this Act and will be deterred from engaging in the campaigning that Nick Clegg and George Osborne above extolled when in opposition.

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Tagged: Constitution, Justice

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