A ‘chilling effect’? The Transparency of Lobbying etc. Act 2014 and charity campaigns

Charities have reported a ‘chilling effect’ of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 (‘the Act’). This Act limits the amounts they can spend on certain campaign activity during the election period.[1] Some charities consider these caps excessive and advocate scrapping the Act. Rightly so?

The Act

Charities often campaign for legislative or policy change. The Act regulates such activity during election periods if it can reasonably be regarded as intended to influence voting behaviour. This includes campaigns for or against particular political parties or categories of candidates, but also campaigns on specific issues where the position the charity advances can be associated with one or more parties or categories of candidates. The Act modified the provisions of the Political Parties, Elections and Referendums Act 2000 (PPERA): it reduced the amounts that charities can spend on campaigns and increased the range of regulated activities.[2] The Electoral Commission has produced detailed guidance on the rules that apply to non-party campaigners, including charities, in the run-up to the 2015 general election.[3]

A ‘chilling effect’

The Act, a number of charities argue, not only limits their freedom of expression but also restricts them in carrying out important democratic functions: campaigning on behalf of marginalised and vulnerable people, and scrutinising government. The Commission on Civil Society and Democratic Engagement, led by Lord Harries and supported by over 150 charities, campaigned against the Act’s provisions on non-party campaigners throughout its passage through Parliament. This Commission published a report suggesting that many charities are now cautious about campaigning on politically contentious issues to avoid legal challenges and reputational damage. The report also notes how charities need to divert resources from their core objectives to ensure they comply with the new rules, and are less inclined to form campaign coalitions. The Commission therefore recommends repealing the Act. A group of 160 charities have since written to party leaders to call on them to do so in the next Parliament, as well as review PPERA.

No simple matter

But a solution may not be as easy as that. Few would dispute charities’ freedom to represent the interests of groups that would otherwise risk remaining voiceless. Yet it is hard to ignore that the Act also serves an important purpose: its stated intention is to ensure outside influences do not have a disproportionate impact on politics and elections, by subjecting them to expenditure caps and making them more transparent.[4] This way, the Act attempts to prevent vested interests from by-passing the rules on political party funding and spending by redirecting money to non-party campaigns.

What next?

Charities see the Act as a restrictive regulatory burden, but others have expressed concerns about it too. The Labour Party has declared an intention to repeal it. And the Guardian reported on concerns that the Act may be unenforceable because it is unclear exactly which organisations and activities it covers. Organisations engaging in large campaigns are often short-lived, which further complicates enforcement.[5] But repeal is not the only available option for reform: changes to spending limits and the definition of regulated activities are potential alternatives.

It is against this background that Lord Hodgson, appointed by the Government, will carry out a review of the working of the Act (due to report before November 2016).[6] It remains to be seen what the next Parliament will hold for non-party campaigners.

Elise Rietveld

[1] The ‘regulated period’ is usually 365 days but for the 2015 general election runs from 19 September 2014 to 7 May 2015. This reduction enabled the Electoral Commission to draw up guidance taking account of the new rules

[2] For a summary of the changes produced by the charities affected, see this analysis of the law by the Commission on Civil Society and Democratic Engagement. See also Campaigners and Part 2 of the Transparency of Lobbying etc. Act 2014, Commons Library Standard Note, 18 February 2015

[3] The Charity Commission has also published guidance to advice charities on rules on political campaigning

[4] The Deputy Prime Minister Nick Clegg, HC Deb June 2013 c1373; Cabinet Office Press release, New bill to bring more transparency to politics, 17 July 2013

[5] Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill, Commons Library Research Paper 13/51, 27 August 2013, p. 25

[6] Transparency of Lobbying etc. Act 2014, Part 2, s39