There is a country in which non-party campaigns by NGOs, think tanks and others are deemed by the state to be a risk to the ‘legitimacy of the system of government’. Where for a year before a general election any campaign which might change what voters think of political parties have to be ‘controlled’ in order to ‘ protect public confidence’ in the electoral system. Where it is a criminal offence to breach the rules of such regulation. That country is Britain. It’s been that way for over a decade and it will remain that way whether the Lobbying Bill is passed or not.
The restrictive legislation was introduced in 2000 by the Labour government in the wake of the Bernie Ecclestone affair, when fears were high that corporate donations could skew policy positions of political parties. It regulates charity as well as company and union campaigning. In its heavy handed way it has achieved its main goal of preventing the establishment of US-style front groups working for particular candidates or parties.
As you will have seen from the media coverage of yesterday’s parliamentary vote, the Coalition now thinks this system is insufficient to protect public confidence in the electoral system and is trying to rush through new legislation which massively broadens who will be regulated and how. The second part of the Transparency of Lobbying Bill, cobbled together in the last days before the summer recess, expands the power of the state to control the communication of charities and others who use public communication and policy campaigning to achieve their goals.
It will make neutral organisations fearful of breaching the Act
Everyone from the Countryside Alliance to the Women’s Institute is concerned. The reason is that the Bill fundamentally misunderstands the difference between engaging in political debate and electioneering. It actively ignores the huge contribution that pressure groups and charities play in enriching democratic debate by raising public awareness, contributing to political thinking, and holding elected representatives to account. If it passes into law it will not only be harder for the public to hear the opinions of those that might have different views than the particular parties or candidates. It’s also very likely that avowedly party-neutral organisations will go quiet for fear of being in breach of the new Act.
When I spoke to the Electoral Commission last week, they admitted that the proposed law was so broad that they would struggle to give clear guidance to voluntary bodies on what would constitute ‘election material’ and what would not. It used to be advertising and leafleting. Now it’s reports, polls, public events. You don’t have to mention parties or candidates to be covered. If you carry out these activities without registering with the electoral commission you have committed a criminal offence. The Electoral Commission will be forced to judge every case individually. Lots of work for the regulator, and good news for lawyers, but a big headache for charity trustees. Charities like mine work hard to never be or to appear to be partisan, but engage in policy debate to help achieve our charitable mission. Most charities will respond to the legislation not by registering, but by becoming much more reticent to express an opinion about government decisions, and wary about how they communicate success when they do get political support for their ideas.
An affront to democratic debate
Take the National Trust and its concerns about High Speed 2 as an example. The Trust is not alone in being opposed to the government’s planned route that goes through the Chilterns Area of Outstanding Natural Beauty. It is working with the Department for Transport to try and change the route, but in the event that it felt its concerns were being ignored wouldn’t we want the Trust to tell the public? If its concern was picked up by opposition parties and used after April next year to embarrass the government would that constitute an impact on the public standing of some parties to the benefit of others? If there is any risk that it would the National Trust would have to be regulated as a third party in the general election and record all the time it has spent on its HS2 activities. Most people would consider that an affront to democratic debate, not something that would enhance it.
There’s no evidence yet of undue influence
British governments of all colours, but particularly centre-right ones, are reluctant to regulate unless there is an overwhelming case for doing so. The Coalition has shown no such prudence with this Bill. No one I have spoken to has been able to think of any instance where a non-party group has wielded undue influence on an election outcome in the UK, and at the last general election no registered campaigners came close to breaching the existing expenditure limits. The contorted justification used by Cabinet Office officials is that there might be a ‘perception’ of undue influence and that without stronger regulation ‘the behaviours underlying this perception will continue to damage the legitimacy of the system of government’. What behaviour? What damage? No evidence is provided for their assertions.
My conclusion is that the Bill is a big government solution to a problem that doesn’t exist. It gold plates existing restrictive regulation which already mitigates a small risk of US-style front groups emerging in the UK. All those who value the vibrancy and quality of British public debate should oppose it. We have become used to having to calibrate our freedoms against our security, and most of us are willing to accept proportionate state intervention to protect society. This is no such case. This is a trade-off between the freedom of civil society to hold politics to account, and the discomfort of politicians who would prefer an easier life.