The Lobbying Act and Your General Election Activities

Are our human rights being infringed by the Lobbying Act?  Volunteer Calum Liddle attended a recent briefing meeting organised by the Electoral Commission and here he raises some of the issues.

And so the General Election approaches: 7 May 2015.

An unforeseen consequence of the Fixed-term Parliaments Act 2011, removing the prime minister’s ability to call an election at a time of his choosing, has resulted in a New Year wave of party campaign launches.

Charitable organisations and others, as a result, wishing to participate in the campaign will have to grasp new rules regarding non-party contributions far sooner than otherwise expected.

The rules governing non-party campaigners were revised by the Transparency of Lobbying, Non Party Campaigning and Trade Union Administration Act 2014. The Act applies to certain elections and, in the case of this UK Parliamentary General Election, the regulated period is from 19 September 2014 until the close of polls on 7 May 2015.

The rules concern what non-party campaigners can spend on certain campaign activities during the regulated period. Regulated campaign activities are described by the Electoral Commission as: election material; public events and rallies; press conferences or other media events; canvassing or market research which seeks views or information from the public; and any transport used to obtain publicity.

At a compliance training event held in Edinburgh before Christmas, the Electoral Commission explained to delegates that the new rules are not about preventing campaigning, “but about making sure it is done in a certain way – a transparent way”.

But it isn’t, in actual fact, quite so straightforward.

Essentially, if activities could be reasonably regarded as intended to influence voters to vote for or, indeed, against a political party or candidate then those activities are now regulated.

The important thing about such a test is that it is objective – what matters is whether campaigning activities result in a charity appearing to support a   political party, a candidate or a policy closely associated or aligned with   either of the two.

This means that charities and other organisations will now have to take into account the potential effect of their campaigning activities. For example, where a particular candidate or party
endorses a charity’s independent policy campaign, and the charity includes this endorsement in its public literature, such a campaign would then most likely be considered a regulated activity.
 And where activities, such as rallies highlighting a need for, say, policy revision, are hijacked by members of a
particular political party, the charity needs to demonstrate distance if the rally is to avoid being considered a regulated campaign activity and, in turn, being subject to new accounting obligations.

Further Charities can, of course, undertake some political lobbying or campaigning but it must be careful that such activity furthers the charity’s objects and that the activity does not become more than ancillary. This can be a challenging tightrope.

The new campaign rules narrows the tightrope once more. A stakeholder attending the Electoral Commission’s compliance event noted that her charity would be holding hustings without UKIP candidates. These hustings would be for the purposes of debating that particular party’s policies which, in her view, undermine human rights. When asked by the Electoral Commission how explicit these hustings would be, her response followed: “We will be unequivocal and outright. We will be encouraging people not to vote UKIP”. The hustings, in such an instance therefore, will constitute a regulated activity.

A discussion followed with compliance staff from the Electoral Commission which unveiled measures in which activities, such as the hustings described, could be taken out of the scope of the Act. For example, the charity might invite UKIP candidates to participate in a cross-party hustings, in effect neutralising the activity.

But, instead, the charity might take advantage of the journalism exemption and rely on the press to publicise the activity, in turn, reducing the costs to be accounted for the purposes of regulatory oversight. This might be a good idea if a charity was otherwise keen to participate in explicit regulated campaign activity but had concerns about breaching the new funding thresholds for compulsory registration with the regulator.

Registration, funding thresholds and accounting obligations

It’s a General Election campaign that will stretch four months. A long four months. If a charity, or other organisation, is involved as a non-party campaigner and plans to spend more than £10,000 in Scotland on regulated activities then registration with the Electoral Commission is necessary.

Once an organisation has registered it must account for its expenditure and activities to the Electoral Commission and becomes subject to the revised campaigning expenditure limits. In respect of UK General Elections, these are £55,400 in Scotland, £44,000 in Wales, £30,800 in Northern Ireland and £319,800 in England, with no more than £9,750 to be spent in any one constituency.

Calculating costs associated with activities could prove burdensome, of course, but failure to comply with the new regulatory requirements, in any case, could see an organisation subject to civil or criminal sanctions.

Further concerns

The Act in no uncertain terms brings grass-roots and small charitable organisations within the scope of new reporting requirements. Many of these organisations are without the means to obtain professional legal guidance or accountancy expertise.

The message from the Electoral Commission: “We know there were objections to the Act. We know there are still objections to the new regime, even now it is in practice. But this is where we are. This is where we all stand.”

The regulator invited any Scottish charity to approach their Edinburgh office for hands-on guidance. The regulator is wary that, in no way, does it wish to hinder debate, participation or information dissemination in the run up to polling day.

Given that the reporting requirements might so easily catch unsuspecting charities – especially in light of some the parties, policies and candidates this time round – an approach to the regulator is, perhaps therefore, the best option where doubts remain. The invitation at the Electoral Commission event was extended by Roisin McDaid and Nick Wright, both of whom are senior compliance officers:

The Electoral Commission. Lothian Chambers, 59-63 George IV Bridge, Edinburgh EH1 1RN Tel 0131 225 0200 Fax: 0131 225 0205 infoscotland@electoralcommission.org.uk

There is also detailed policy guidance available on the Electoral Commission’s website at: http://www.electoralcommission.org.uk/