Elections, campaigns, and the Lobbying Act

In the same week as the next general election was announced, the Electoral Commission confirmed that two of the UK’s largest environmental charities had been fined for their conduct during the last one.

Friends of the Earth was fined £1,000 for late registration of its campaign activities and Greenpeace fined £30,000 for refusing to register. Greenpeace has called its refusal to register an ‘act of civil disobedience’ in protest at the inequity of the law: ‘Sometimes legislation is just wrong and you have to stand up and say so. The Lobbying Act is a democratic car crash; it weakens democracy and curtails free speech.’

It is unclear whether either organisation has challenged the fines imposed. For many individuals and small organisations, £30,000 may pose a substantial deterrent to public participation. Publicity now – as the eight-week election period begins – may have a chilling effect on those working on a range of issues.

The impact of the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 (‘the Lobbying Act’) remains controversial. In March 2016, an independent review, conducted by Lord Hodgson CBE, recommended wholesale reform. Its provisions will continue to apply to the upcoming election. While the law does not ban or prohibit third-party campaigning, understanding its unreformed scope will be crucial for anyone working to influence public opinion before 8 June.

Non-party campaign funding

The Lobbying Act amended the law to further restrict spending on non-party campaigns during elections. It applies to everyone – individuals, companies, charities, and not-for-profits – who might spend money on any campaigning activity.

Any spend over £20,000 on ‘controlled expenditure’ (or over £10,000 in Scotland, Wales, or Northern Ireland; or a smaller sum in any individual constituency) in the year before an election requires registration with the Electoral Commission as a non-party campaigner. ‘Controlled expenditure’ is spending on election activities which can ‘reasonably be regarded as intended to promote or procure electoral success’ for individual candidates or parties (section 85, Political Parties, Elections and Referendums Act 2000). Those registered are subject to strict reporting requirements, limits on spending, and restrictions in respect of some donations. Failure to comply may be a criminal offence.

The goal is to increase transparency in election finance, but the limits placed on civil society have been subject to criticism. Any activity, now or over the past year, might be subject to regulation. Whether you are a multi-million pound company or a crowd-funded individual, if you qualify, you may be required to register and report your campaign to the commission on a weekly basis between now and polling day.

Will the Act apply?

Although it is a snap election, the regulated period for the purposes of the Act remains 365 days prior to the election (from 9 June 2016 to 8 June 2017).

An activity will be ‘public’ if it is aimed at, seen or heard by, or involves a section of the public. This excludes material and events only for members or subscribers of an organisation and material only sent directly to MPs and peers. However, it is likely to include material published on a website and promoted on publicly accessible social media platforms.

The key test is whether the ‘purpose’ of any activity ‘can reasonably be regarded as intended to influence voters to vote for or against political parties, or categories of candidates, including political parties or categories of candidates who support or do not support particular policies or issues’. This test is broad and subject to criticism. The independent review recommended that activities are only regulated which are intended to influence the outcome of the election.

Regulated activities are not limited to those which promote a party or an individual. Organisations can act consistently with the political limitations in the Charities Act 2011 and yet be covered by the Lobbying Act. Material might reasonably be regarded as intended to promote or procure electoral success regardless of whether it has been prepared to achieve another purpose and even if it does not mention the name of any individual party or candidate (section 85(4) and (4A), PPERA 2000). The Electoral Commission’s 2014 ‘Charities and Campaigning’ guidance was clear that, for example, work on climate change might be relevant for the purposes of calculating controlled expenditure, in so far as it might promote the interests of one or more parties committed to green issues.

Long-running campaigns are not likely to be regulated activity except in so far as they are altered by the election. Responses simply welcoming or criticising positions adopted by individual politicians or parties are not likely to amount to regulated activity. However, if an organisation’s work consistently promotes one party to the detriment of others, its expenditure will be controlled. Tone and context are key. Individual activities should be considered on a case-by-case basis bearing in mind the reasonable objective assessment of any intention to influence.

What expenses count?

Calculating controlled expenditure is not simple. In some circumstances, supporting a joint campaign will require all the organisations to consider the full cost of the campaign for the purposes of registration. Although volunteer time is not included, gifts in kind and discounts contributed by others should be. If tasks are done outside the regulated period, but in contemplation of an election, those costs may also need to be included.

Registration requires the submission of regular reports to the Electoral Commission on spending throughout the election period. These reports must record and break down all controlled spending and may be subject to audit. Donations which support regulated activities are also subject to reporting.

Crowd funding raises a particularly difficult issue. Donations over £500 from some sources, including overseas funds or political parties, are prohibited. Anonymous donations over this amount to a regulated campaign must be returned, including where the funds are sourced through crowd funding.

The reporting period for the general election runs from 3 May to 15 June 2017, with reports required weekly. The reporting window will necessarily be significantly shorter than in 2015. Although this may allow less time for a campaign to have an impact, it also reduces the administrative burden for those registered.

Political speech, regulation, and law

Transparency in campaign finance and accountability for political conduct is important. However, the law should not act as a deterrent to genuine political participation, nor should it prevent civil society from sharing its expertise in the formation of party policies. Our political life would be poorer if organisations representing the excluded, poor, and vulnerable, or issues marginalised from the mainstream political agenda, were silenced either by a fear of the law or by disproportionate regulation.

The right to free expression, protected by article 10 of the European Convention on Human Rights and the Human Rights Act 1998, provides particular protection for political speech. Election finance and campaigning can be regulated but only in so far as it satisfies the requirements of legal certainty, necessity, and proportionality. Overly strict spending limits, for example, might be struck down (Bowman v UK (1998) 26 EHRR 1). Any evidence that the limits imposed inhibit activities by expert organisations beyond direct work to influence the party political make-up of the legislature might fairly be considered disproportionate. The robust criticism in the independent review is a valuable indicator that the current law is ripe for reform. However, judicial assessments of proportionality in the management of election law have shown a broad degree of deference (Animal Defenders v UK (2013) 57 EHRR 21 (GC)).

Any organisation or individual working on campaigns during this election period – and considering whether they may be covered by the Act – should take advice. The default should not be silence. 

Angela Patrick is a barrister at Doughty Street Chambers and chair of the Human Rights Lawyers Association @Angela__Patrick  @DoughtyStPublic

Doughty Street will be providing a weekly ‘Election and the Law Update’for Solicitors Journal. For more information go to bit.ly/SJqajTd2