Bob Posner, Electoral Commission Director of Political Finance and Regulation & Legal Counsel
I recently read with interest a blog by the Minister for Civil Society, Tracey Crouch MP suggesting the perceptions about the impact of the “Lobbying Act” are more damaging to charities’ campaigning than the reality.
At the Electoral Commission, we agree with the UK Government that it is primarily misplaced perceptions of the rules rather than the rules themselves that might cause a ‘chilling effect’ amongst campaigners. Media headlines and commentary that exaggerate what campaigners can and cannot do during an election adds to this confusion. However, we also recognise that the suggestion that the Government does not have any parliamentary time to implement Lord Hodgson’s 2016 proposals for changing how third party campaigners are regulated during election periods will not be welcomed by many third sector campaigners. While we believe the system works, that’s not the same as saying there isn’t room for improvement.
Charities and other non-party campaigners are vital to a healthy democracy and, as a society, we must encourage their active participation during, as well as outside of, election campaign periods. The non-party campaigner rules have been in place since 2000 and they do not prevent third parties from campaigning or engaging in public debate. The rules only regulate how much is spent on campaigning that can be reasonably regarded as intended to influence voters’ decisions and the outcome of an election: where a significant amount of money is being spent on this type of campaigning, the rules require individuals and organisations to register with us and declare their spending.
It is right that voters can see who is spending that money. It’s difficult to see the arguments against this. And this is what the rules are aiming to do: They are primarily intended to provide voters and the public with transparency, rather than to limit the ability of campaigners to engage.
At the general election in June, 53 individuals and organisations registered with us as non-party campaigners, and we will shortly be publishing the spending returns of those which spent over the £20,000 reporting threshold. So it is clear that non-party campaigners are continuing to campaign during elections. However, we must be alive to the risk of some disengaging from campaigning during elections out of misplaced fear about the rules – particularly in light of the recent news about progress towards implementing Lord Hodgson’s proposals.
The reality is that, in many cases, non-party campaigners will not even spend enough to be subject to the rules. Where they do, only campaigning which targets voters and the public is covered. So costs of activities such as lobbying Ministers to make changes to government policy, or activities aimed at your members, will not even be covered by these rules.
We also know that applying the 365 day retrospective regulated period caused concern for some non-party campaigners during the June election, but in many cases little or none of an organisation’s activities carried out before the election was called will have met the tests to count as regulated spending.
Clearly, a non-party campaigner is very unlikely to be reasonably regarded as intending to influence people to vote in an election when they do not know that the election is happening. Therefore, an activity is very unlikely to have met the tests and be counted as regulated spending with regard to the 2017 UK Parliamentary general election if it occurred before Theresa May announced the election.
While we agree that some of Hodgson’s recommendations would have improved the regulatory framework for non-party campaigners, we also understand that some of his proposals would have been impractical to implement. Now that there will be no legislative reform to the rules, the government and others, ourselves included, must look for ways to work with campaigners to change this perception of the legislation so that charities and other organisations can confidently continue their campaigning work. Tracey Crouch has said she wants to work with the sector to tackle any confusion and misplaced perceptions about the rules and we are happy to continue to play our part in this.
We are confident that the guidance we publish in advance of electoral events accurately reflects the legal framework and explains the rules clearly. We aim to ensure that the rules on party and election finance are complied with, and that people throughout the UK are confident in the integrity and transparency of party and election finance. We seek to work effectively with stakeholders and those we regulate to encourage trust in the regulatory system and aim to regulate in a way that is effective, proportionate and fair, always taking the facts of each situation into account.
As ever, we are always here to offer non-party campaigners advice and guidance about the rules and we will continue to work with them to ensure that they fully understand what it is that they can do. You can find more information on the non-party campaigner rules in our guidance.
In November we will publish a report on the 2017 general election, some of which will look at the role of non-party campaigners. We encourage you to keep an eye out for this and would encourage campaigners to approach us whenever you have questions about the rules. We hope this reassures non-party campaigners that, despite the changes introduced by the 2014 Act to the rules that have been in place since 2000 remaining in place, they will continue to be able to campaign during election periods.