The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill was presented to Parliament on 17 July 2013, the day before the House rose for the summer recess, and is expected to have its second reading debate on 3 September 2013. The Committee stage is planned to be taken on 9, 10 and 11 September in Committee of the whole House.
Although the Bill includes the anticipated provisions for a statutory register of lobbyists, as envisaged in an earlier consultation, it also introduces some unexpected proposals that could have an effect on the ability of churches, charities and other groups to campaign on “political issues” in the 12 months before a general election, here. Under the Fixed-term Parliaments Act 2011, for the next general election this would be in the 12 months before 7 May 2015, providing that other provisions within the Act are not activated to trigger an earlier date. (Though, presumably, since one can only calculate a period of 12 months in advance of a certain date, if by any chance an election should be called earlier than 7 May 2015, it will surely be impossible to impose the restriction retrospectively.)
The current rules on non-party campaigning apply to individuals and organisations who spend money on distributing “election material” such as adverts, leaflets, websites and other materials that could reasonably be seen as intended to influence voting choice at the election. This may include material which has the intention of raising awareness of a public policy issue, particularly where this is strongly associated with some parties or candidates and not others.
The proposed legislation extends these provisions to include: the regulation of a wider range of activities that are deemed to be undertaken for “election purposes”; mandatory registration if an organization anticipates spending in excess of £5k in England and £2k in each of Scotland, Wales and Northern Ireland on such activities in the year prior to a UK general election; and changes to the way in which spending above a specified level by a non-party is treated for the purpose of party spending limits, when this is targeted at achieving the electoral success of a political party. The Bill also introduces geographical limits on the amount that non-party campaigners can spend in a particular constituency.
Non-party campaigning falls within the Political Parties, Elections and Referendums Act 2000 and under clause 26 of the Bill it is proposed to make a number of modification to section 85, including the following sub-sections,
(3) “For election purposes” means for the purpose of or in connection with—
(a) promoting or procuring electoral success at any relevant election for: (i) one or more particular registered parties; (ii) one or more registered parties who advocate or do not advocate) particular policies or who otherwise fall within a particular category of such parties; or (iii) candidates who hold (or do not hold) particular opinions or who advocate (or do not advocate) particular policies or who otherwise fall within a particular category of candidates, or
(b) otherwise enhancing the standing: (i) of any such party or parties; or (ii) of any such candidates, with the electorate in connection with future relevant elections (whether imminent or otherwise).”
(4) In subsection (4), at the end of paragraph (b) insert “and” and for the words after that paragraph substitute: “(c) a course of conduct may constitute the doing of one of those things even though it does not involve any express mention being made of the name of any party or candidate.”
Whereas under the current legislation only activities designed with the intent of influencing an election result are regulated, the proposed changes will instead regulate activities that may affect the result of an election. Government has produced an Explanatory Note of the proposals and impact assessments relating to third party campaigning in elections and the statutory register of lobbyists. Detailed guidance on the application of the 2000 Act to third-party/non-party campaigning as it now stands, and a critique of the new proposals, are available from the Electoral Commission, here and here.
The major concern of churches, charities and similar organizations will be whether any of their activities might fall within Part 2 of the Bill: Non-Party Campaigning etc. The establishment of a mandatory register for certain lobbyists with Part 1, is primarily directed at “consultant lobbying” as defined within clause 2:
(1) For the purposes of this Part, a person carries on the business of consultant lobbying if: (a) in the course of a business and in return for payment, the person makes communications within subsection (3) on behalf of another person or persons; and (b) none of the exceptions in Part 1 of Schedule 1 applies.
(3) The communications within this subsection are oral or written communications made personally to a Minister of the Crown or permanent secretary relating to: (a) the development, adoption or modification of any proposal of the government to make or amend primary or subordinate legislation; (b) the development, adoption or modification of any other policy of the government;
(c) the making, giving or issuing by the government of, or the taking of any other steps by the government in relation to: (i) any contract or other agreement; (ii) any grant or other financial assistance: or (iii) any licence or other authorisation; or
(d) the exercise of any other function of the government.
The legislation will not include in-house lobbyists of groups such as the CBI, RSPB and larger companies and it has been suggested that it will exclude 95% of lobbyists’ activities. Reflecting concerns over the Bill, the Chair of the Political and Constitutional Reform Select Committee, Graham Allen, (Lab, Nottingham North) arranged a special evidence session involving leading practitioners within the UK lobbying industry on 29 August, and a further session on 3 September when Jenny Watson, Chair of the Electoral Commission and the Rt hon Andrew Lansley MP, Leader of the House, will give evidence. [There is now a link to the written evidence presented at the Thursday session, here, and an analysis of both sessions will be posted next week].
Although trades unions will be subject to new statutory obligations under the Trade Union and Labour Relations (Consolidation) Act 1992 relating to their membership registers within Part 3 of the Bill, they too have significant concerns regarding the operation of Part 2 of the Bill, here.
With regard to non-party campaigning, although in May 2013 the Electoral Commission was supportive of the proposals to amend the Political Parties, Elections and Referendums (Civil Sanctions) Order 2010 , in a private briefing sent to interested parties, it is reported to have expressed “significant concerns” on Part 2 of the Bill, stating
“[i]n our view, it is not at all clear how that test will apply in practice to the activities of the many third parties that have other purposes beyond political campaigning. For instance, it seems arguable that the new test could apply to many of the activities of charities, voluntary organisations, blogs, think-tanks and other organisations that engage in debate on public policy”
It believes that the proposed rules concerning spending at constituency level “may be unenforceable”, partly because “it will often be hard for campaigners to identify with a reasonable level of confidence when an activity has ‘no significant effects’ in a given constituency”.
With the growing involvement of religious groups in “the public square”, engagement in activities that potentially fall within the scope of the Bill seems inevitable. Currently, this would involve groups with concerns over fracking, the HS2 rail route and the badger cull, to name but three. And what about concerns that have less-specific policy targets, such as the alleviation of poverty or concerns about the treatment of illegal immigrants, in both of which the Churches are heavily involved?
 To enable the Commission to impose a fixed monetary penalty or discretionary requirement on a registered party, third party or permitted participant in circumstances where a party office holder or responsible person has committed a prescribed offence.