The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 c.4 which received Royal Assent on 30 January 2014, inter alia amends the provisions within Part VI of the Political Parties, Elections and Referendums Act 2000 on the controls relating to third party national election campaigns, placing additional constraints “non-party campaigning” in the run-up to future elections and referendums.

Non-party campaigners are individuals or organisations that campaign in elections, but are not standing as political parties or candidates. These are referred to as “third parties” in electoral law and two forms of activity are regulated: “local campaigning” which covers campaigns for or against a particular candidate; and “general campaigning” which cover campaigns for or against: a political party; parties or candidates that support particular policies or issues; or particular types or groups of candidate.

The current rules will continue to apply in the run-up to the elections being held on 22 May 2014, the date for the European Parliament election and local elections in England[1], for which the “regulated period” commenced on 23 January.  The 2015 General Election is most likely to be 7 May[2] and the new rules under the 2014 Act will apply from 19 September 2014.

The changes to be introduced include: circumstances in which the rules apply; registration thresholds; what spending is covered; how much campaigners can spend on regulated activities; and what campaigners need to report to the Electoral Commission.  A much wider range of campaigning activities fall within the new rules, including: election material (as currently covered) made available to members of the public; canvassing, or market research seeking views or information from, members of the public. Including the use of phone banks; press conferences or media events; transport in connection with publicising a campaign; and public rallies or other public events.

Electoral Commission Guidance

The Electoral Commission[3] is the key body with responsibilities in this area and is tasked with writing guidance on Part 2 of the Act.  As the statutory regulator, it has the powers to monitor the legislation and to issue civil penalties and enforcement notices. The Commission is seeking input from charities and campaigning groups ahead of publishing guidance by early July 2014, and has provided interim guidance on its web site, including a number of informative FAQs.

Significantly, the Electoral Commission’s Guidance states, [our emphasis]

“The campaigning activity may be regulated even if your intention is to achieve something else, such as raising awareness of an issue. The activity may also be regarded as intended to influence voters even if you do not name a political party or group of candidates as part of your campaign.”

This is important given the political nature of many of the policies of interest to charities and religious groups, and in relation to the environmental area potential areas in which the new legislation might be tested include: the route of HS2; hydraulic fracturing; wind turbines; flooding; badger culling; and even hunting of foxes with dogs, which is still on the agenda of some groups.

Two aspects of these issues are likely to be problematic to the coalition government: the local (i.e. constituency) impacts of specific policies, although with HS2 and fracking in particular, a large number of constituencies is likely to be affected; and in the assessment of its delivery of its promise to be “the greenest government ever[4], which even in 2010 seemed implausible to some[5]. The politicization of environmental issues, where the interpretation of what would be regarded as “sound science” is influenced by the political agenda, is likely to bring many of the activities of charities as well as protest groups within the scope of the new Act.

On 7 April 2014, the Electoral Commission reported results of a survey it had undertaken on the new Act[6], which indicated a significant interest from charities, which comprised about two-thirds of respondents (64 per cent), 16 per cent were from campaign groups and 6 per cent from a trade union or professional organization.  Of these, almost (88 per cent) were planning activities in the run-up to the 2015 UK Parliamentary general election; over 70 per cent of respondents are planning email or website-based campaigning, 65 per cent are planning report launches and 61 per cent are planning to use leaflets. Only 20 per cent of organisations said that they were planning to use advertising boards.  The Electoral Commission indicated that its guidance would be available in July, although its web site currently provides informative assistance through its comprehensive FAQs[7].

Comment

Prior to the House of Lords second reading of the Bill, we reported Baroness Jay of Paddington, the chairman of the Lords’ Constitution Committee, as saying

“The committee is concerned about the restrictions on the right to freedom of political expression that will result from the proposal to limit third-party expenditure at general elections. We think this constitutional right should only be interfered with where there is clear justification for doing so.

“We are also concerned that the lobbying bill will not achieve its objectives of increasing transparency and restoring public confidence. We have therefore recommended that the House of Lords considers whether the limited definition of lobbying in the bill, which excludes in-house public affairs work and covers only communication with ministers and permanent secretaries, will provide adequate transparency.

“We are critical of the hurried way in which this legislation has proceeded, which has resulted in a lack of consultation. Bills of constitutional importance such as this should not be rushed through Parliament.”

The next twelve months will demonstrate the extent to which these issues were addressed during the subsequent passage of the Bill or whether these early concerns have been demonstrated in practice.

The Commission on Civil Society and Democratic Engagement has produced a useful summary The Lobbying Act: Analysis of the law, and regulatory guidance recommendations

[1] Direct elections for all 32 London boroughs, all 36 metropolitan boroughs, 74 second-tier district authorities, 20 unitary authorities and various mayoral posts, all in England. Elections to the new councils in Northern Ireland will also be held on the same day