Lobbying Act guidance – how it can be improved

At the end of last month, the Electoral Commission issued its final guidance on the rules for non-party campaigners contained in the Lobbying Act. This followed a short but intense period during which campaigning organisations and voluntary sector umbrella bodies, and charities across the spectrum engaged with the Commission to produce the best possible outcome.

At every opportunity (seminars, roundtables, webinars, etc.) we asked how the rules would be applied in practice, explained the voluntary sector’s campaigning style (which can be most kindly described as “fluid”) and asked what definitions such as “the public” and “focused constituency campaigning” actually meant.

I think that folk at the Electoral Commission found were most surprised by hearing how often a charity has been campaigning for months – or even years – on a policy issue that suddenly becomes a diving line between political parties.

The key concern for charities is how do they carry on with their campaigning in a way that doesn’t bring them within the scope of the rules? There’s nothing wrong with incurring “controlled expenditure”, or in having to register. But, many feel there is a fundamental injustice in having to comply with rules and deal with the relative bureaucracy, just because their campaigning has been effective and received the endorsement and support of one or more political parties.

Even after reading the guidance – all 22 documents – charities won’t have an absolute and definitive answer to the question of when their activities come within the scope of the regulation. This is an unavoidable consequence of the fact that the law, and particularly the provision that I now mutter in my sleep, (whether the activity can “reasonably be regarded as intended to promote or procure the electoral success of a particular party or candidate” – RRIPPES) is deliberately a very open one.

Time is getting tight, but even with the start of the regulated period one month away, changes and clarifications could easily be made by the Electoral Commission to improve its guidance, making it easier for charities and non-party campaigners to understand and use it.

It is in this spirit that we have written to the Electoral Commission, making some practical suggestions based on our work in this area and the comments we have been receiving from our members.

Here’s what we suggested

The guidance, and how it’s structured

The Electoral Commission has explained that its tiered approach to the guidance is so non-party campaigners can “dip in and out” without having to read it in full. But this makes the number of documents unpractical – 99% of people are so concerned and confused about the rules, they will feel the need to read all of them, even if they turn out to not be relevant.

We suggest that the guidance should be split into two sections covering:

  1. when a non-party campaigner needs to register
  2. advice and guidance for non-party campaigners that have registered.

The purpose test

We’d like further clarity on the purpose test and how this will apply in practice. At the moment there continue to be a number of areas where more details and examples would be helpful.

“Long term campaigning by a charity on a policy issue that is in direct correlation with its charitable purpose”

  • The guidance needs to be explicit about the fact that, if a charity’s campaigning issue becomes a major dividing line between political parties, the charity does not come within the scope of the rules provided there is no change in its campaigning activity.
  • Similarly, if the policy issue has always been aligned in the public’s view with a particular political party, an explicit statement that this does not by itself bring the rules in play would go some way in reassuring charities.
  • If the policy issue becomes the object of endorsement or opposition by a particular party or candidate, we need further clarity and detail of what type and level of ‘altering or increasing activity’ brings the rules into play (practical examples would be particularly helpful).

Charities would be greatly reassured if the guidance also included a recognition by the Electoral Commission that if a charity is complying with the Charity Commission’s guidance on political campaigning then it should be less likely that it could ‘reasonably be regarded as intended to promote or procure the electoral success of a particular party or candidate’.

Organisation campaigning on multiple issues

Clarification on how the purpose test applies to an organisation that is carrying out a number of separate campaigns on issues that have the support of different parties will be assessed. It seems reasonable to assume that any specific campaign should be considered in the context of the campaigner’s overall campaign approach, but again the guidance needs to make it clear.

We still have questions

Definition of ‘close to polling’

An explanation of what this means would be helpful. Are we correct in interpreting this as meaning after the dissolution of Parliament, as in the Charity Commission’s supplementary guidance on campaigning during elections?

Hustings

The guidance already is helpful in clarifying that non-selective hustings do not come within the scope of the rules. The guidance also says that selective hustings would also not come within the scope of the rules if there are “impartial and objective reasons”. But we need details and examples of what count as “impartial and objective reasons”.

Who is ‘the public’?

A more detailed explanation of who is considered as a member of the public is still necessary. Particularly, charities have fed back that they would like clarification that their regular service users are not considered members of the public, because of an existing contractual relationship.

On registration

In our many Q&A sessions, the Electoral Commission has said that, if a charity isn’t registered but is reported by a third party, evidence of good governance and decision making will be considered by the Electoral Commission in its assessment. We also understand that if the Electoral Commission reaches the conclusion that the charity should be registered, the fact that the charity took all the reasonable steps will mitigating factors in any compliance action. I think many trustees and staff working within charities would breathe a sigh of relief if they saw this written in the guidance.

What now?

I think it’s very important to emphasise though that, while we do need some additional clarity in these areas, you shouldn’t be deterred from campaigning by the act or by those who say it is difficult or dangerous.

If you’re taking a sensible and reasonable approach and doing your best to follow Electoral Commission and Charity Commission guidance, the chances of any action being taken against you are very slim.

The much bigger risk is that you worry so much about the Act that you decide not to pursue advocacy goals that are important to the people and issues you work for. Stuart has written more about this.

 

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Elizabeth Chamberlain Elizabeth is head of policy and public services at NCVO. She has been part of the policy team since 2008, as the expert on charity law and regulation. Her policy interests also include charity campaigning, the sector’s independence, transparency, and accountability.

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