The Lobbying Act: The biggest risk now is staying silent

I didn’t like or agree with the way the Lobbying Bill was pushed through parliament last year, but I also dislike and disagree with the current hyperbole about the Lobbying Act and its new regulations. It is at best unhelpful and at worst dangerous. When charities read that they will be ‘censored’ or banned entirely from campaigning, or that their board face jail if they make a mistake, the effect is not to improve their understanding, nor to provide a constructive solution, but simply to spread confusion and alarm. This scaremongering is irresponsible and is in serious danger of deterring charities from perfectly lawful campaigning – a scenario not without irony.

In its original form, the Lobbying Bill was a potential disaster for the voluntary sector. That was last year. By the time the bill passed into law, thanks to the concerted efforts of many, it was in a much better shape. It is still deeply problematic, and we continue to have concerns about some important issues but it is not the mess it would have been.

The guidance is not perfect but it is not ‘incomprehensible’

The independent body charged with producing guidance on the Lobbying Act is the Electoral Commission. No shrinking violets, they presented a robust view on their concerns about the Bill throughout its passage through parliament. In writing guidance on the Act, they have had a difficult task to complete in the shortest of timescales. But recent criticism that their guidance is ‘incomprehensible’ is simply wrong. The guidance is neither perfect nor of a scope that addresses all possible scenarios. It requires improvement. But the Electoral Commission has made real and substantive efforts to engage with the sector on the implementation of the Act. They are working with sector bodies to help charities navigate lengthy regulations, and we will help charities to follow it. To characterise the Electoral Commission as out of touch or, worse, over-zealous prosecutors is wide of the mark.

We have to be sensible

Working with this law requires a sensible and realistic assessment, and a constructive approach to resolving concerns. I am clear: the balance of risk is that we self-police, and stay silent on issues that concern our beneficiaries. The risks of being entangled in the Lobbying Act are manageable, as are the consequences of transgressing the rules.

The reality is that the instances of charity campaigning caught by the rules will be relatively few, provided the activity is carried out responsibly, in a non-party political way and in pursuit of the organisation’s charitable objectives.

The first test of any legislation is bound to raise some uncertainties. And if you are looking for absolute certainty, I’m afraid that is never going to happen. But the Electoral Commission are not out to ‘get’ charities. They are in fact very sympathetic to the practical problems charities will face in getting to grips with what they need to do under this new law.

It is also worth bearing in mind that we have clear commitments in the parliamentary record that it is not the intention of the legislation to impact on the ability of charities and civil society organisations to campaign on policy issues. While this may on some occasions be an unintended consequences of the legislation, the aim of this (and the previous) government is perfectly legitimate: to seek to ensure some parity and fairness in elections, and create transparency around electoral campaigns and their expenditure. This does not amount to state censorship.

More clarity would be helpful

Yes, there are grey areas. A number of important questions remain to be answered, most of all when a charity campaigning on a policy issue that is related to its cause is brought within the scope of the rules because a particular party or candidate endorses such a campaign. The current guidance states that the purpose test would be met when third party campaigners ‘alter or increase their campaigning activity on the policy as a result of the political party’s support’. Until this is explained in more detail and practical examples are provided, such a loose test will cause headaches. We do think there is room for improvement in the guidance, and we are asking the Commission for additional clarity in several areas, in particular:

• that should an issue become a political ‘hot potato’ during an election period, a charity with a history of campaigning on this issue is not in the scope of the rules when it continues to do so
• following a political party’s support, what type and level of altering or increasing campaigning activity bring the rules into play
• that users of charity services do not count as members of the public.

You can read more in Elizabeth’s blog post.

Ignore theatrical claims and manage risk sensibly

So I share the concerns about the potential impact of the Act on civil society and its voice in public debate. But my greatest fear is that of charities self-censoring and retreating from doing their invaluable work.

That is why I wince when I now read exaggerated claims about the impact of the Act, as such misrepresentations could be deeply harmful. They simply add to confusion. It is confusion and ambiguity about what is allowed that will deter charities from venturing onto the campaigning field at all.

I urge you to put out of your mind the more theatrical claims about the Lobbying Act’s impact. You should address the regulation issues seriously but do not allow yourselves to become paralysed with anxiety. The risks are eminently manageable. You can and should continue to campaign on behalf of the issues that matter to the people and causes you support.