The passing of the Lobbying Act is set to make this year’s general election one of the toughest yet for charity campaigners to navigate.
The Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014, to give the Act its full title, became law last January and places a raft of new regulations on the way charities campaign around general elections.
From September 2014 to the general election on May 7 charities spending more than £20,000 in England, or £10,000 or more in other parts of the UK, on activities that can “reasonably be regarded as intended to influence voters to vote for or against political parties” must register with the Electoral Commission as non-party campaigners.
Once registered charities must submit details of their campaign spending and activity to the Commission. Those that meet the Act’s financial threshold and fail to register run the risk of legal action if a complaint is made that their campaigns intend to influence voters.
The Act has been widely condemned among the charity sector, with ACEVO and others calling for it to be repealed. The Labour Party is the only major political party to back its axing, although the Lib Dems and Conservatives have pledged to review it after the general election.
A key concern in the sector is it will create a chilling effect, with charities putting campaigns on ice for fear of flouting the Act. Another concern is it places an extra financial burden on charities in terms of legal advice and staff training.
Alison Talbot, a partner in law firm Blake Morgan’s charity team, says evidence is already emerging that charities are shelving campaigns due to the Act.
She says: “A few of our charity clients have put a moratorium on any new campaigns, any contact and links with MPs and anything that could be seen as political.”
But are these charities being over cautious? Simon Francis, vice chair of the Public Relations Consultancy Association (PRCA) charity group and director of Claremont PR believes so.
“The advice the PRCA gives is not to be cowered by the Act’s complexity and to keep calm and keep campaigning. If a charity can prove its campaigning is part of its long term goals and is not political then they should have nothing to worry about,” he says.
Advice Francis gives charities to minimise the risk of prosecution under the Act is keep good records of campaign costs and any contact with politicians.
“A lot of well run charities do that anyway as they would always want to know the time and costs involved of a team being involved in a particular campaign,” he adds.
Such evidence gathering could prove vital in a climate of increasing political opposition to charity campaigning, says ACEVO policy officer George Bangham.
“The Act has got to be seen in the context of other government rhetoric about charity campaigning, around food banks for example, and other issues such as gagging clauses in public service contracts,” says Bangham.
But charities also need to be on their guard against political supporters, says Talbot.
“A charity’s cause could suddenly become a politician’s pet project, which could mean they end up being suddenly aligned to a party at the whim of a politician,” she says.
She urges charities to ensure they can prove their commitment to a cause is long running and pre-dates a politician’s or party’s recent interest.
Another criticism of the Act is that it is unnecessary, as the Charity Commission already regulates political campaigning in the charity sector.
Jay Kennedy, head of policy of the Directory of Social Change, bluntly refers to the Act as “a pointless duplication of bureaucracy.”
Francis adds the Act’s focus on charities is baffling, as most experienced charity campaigners, who have the resources to meet the Act’s financial threshold, will know that aligning with one political party is foolhardy.
“The more cross party support you have the more likely it is that your campaign will be implemented after the election,” he says.
Since the Act was implemented the Electoral Commission has produced a range of guidance for charities on areas such as social media campaigning and the importance of record keeping.
But for Kennedy the key guidance charities should be looking at is instead from the Charity Commission, in particular its document Speaking Out – guidance on campaigning and political activity by charities, which is also known as CC9.
“This document should be your first port of call as it offers clear specific guidance on areas such as launching a manifesto. The key to both Charity Commission rules and the Lobbying Act is to tie your campaigning to your objectives,” says Kennedy.
So far there is a lack of interest among charities in registering with the Electoral Commission, with just five making the move as of January this year.
Bangham says this may indicate a growing confidence among charity campaigners that they will not fall foul of the Lobbying Act.
However, NCVO policy manager Elizabeth Chamberlain anticipates this confidence may ebb away as the general election date gets closer and many more charities will look to register.
“As issues such as welfare reform and poverty become more prominent I would expect more charities to consider registering as a pre-emptive measure. I think many more would rather register than be seen to be in breach of the law,” she says.
Kennedy also anticipates growing interest in registering with the Electoral Commission. “There has been a phony war until now. Everyone was building up to the period of regulation in September. But nothing has really happened since and there is still a little bird on the shoulder of charity campaigners whispering doubts in their ear,” he says.
Stonewall is among the five charities to already register with the Electoral Commission. Sam Dick, the charity’s campaigns director explains it registered because “we felt it was better to be safe than sorry,” adding, “I’d rather spend time registering than waste donors money on fines. It was a pragmatic decision about risk.”
He says the Act has not led to campaigns being shelved or a chilling effect but has made Stonewall “think twice about our campaigns, making sure it leads to meaningful change. The Act has added that extra layer of strategic thinking,” he says.
James Cooper, head of government affairs at the Woodland Trust, another of the five charities to register, says it made the move “in the spirit of transparency” even though it is opposed to the Act and wants to see it repealed. He is adamant the Act will not curtail its campaigning. He adds that in the run up to the general election the Trust still intends to “challenge candidates on what they will do to ensure their prospective constituents benefit from woods and trees.”
The other three charities to register are The RSPCA, Hyperlipidaemia Education & Atherosclerosis Research Trust UK and The League Against Cruel Sports.
Of these RSPCA has set up a separate company specifically to register, called RSPCA Campaigns Ltd. A key factor in this decision was the RSPCA’s specific status as a charity set up under a private Act of Parliament, which is not among the list of organisation types that can register with the Electoral Commission. But Talbot says it also makes it easier for the RPSCA to track campaign spending.
She says: “If you are a large organisation it becomes far more difficult to ring fence specific campaign spending. I can see real merit in keeping it separate.”
Whether a charity decides to register or not with the Electoral Commission Bangham hopes all charities continue to campaign vociferously to support their causes ahead of the general election and not feel intimidated by the Lobbying Act.
“The voice of the charity sector needs to be heard loudly and it’s vital that charities do not feel deterred from campaigning,” adds Bangham.
Joe Lepper is a freelance journalist