Third-party Election Campaigning

Lord Harries of Pentregarth Excerpts

Thursday 13th September 2018 Lords Chamber

Moved by

[Lord Harries of Pentregarth]

To move that this House takes note of Part II of the Transparency in Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 and the effect it has had on third-party election campaigning.

[Lord Harries of Pentregarth (CB)]

My Lords, everyone is clear and in total agreement that third-party campaigning during election periods should be controlled by legislation—that is, campaigning by non-political bodies such as charities and pressure groups should be limited in the amount of money that they spend, as political parties are. However, there was widespread agreement among your Lordships that Part 2 of the lobbying Act, which sought to do this, was hurried and ill-thought-out legislation with no prior consultation. In response, the campaigning groups most affected by it, of all types and views, came together to form the Commission on Civil Society and Democratic Engagement, which I had the privilege of chairing. After extensive consultation with the sector around the United Kingdom, it produced four reports showing clearly the chilling effect the legislation would have on legitimate campaigning.

As a result, a number of amendments in this House were pressed to the vote. One in particular came to be accepted: that the legislation should be reviewed in the light of the experience of the 2015 general election. This was done by the noble Lord, Lord Hodgson of Astley Abbotts, who produced his very thorough and balanced report in March 2016. He made 29 recommendations but I will focus only on the six which are of most concern to the sector, plus an issue which has come to the fore as a result of the snap election last year, which revealed the retrospective nature of the legislation in such circumstances.

Recommendation 4 of the noble Lord’s report concerns how we judge whether a campaign is political. Many charities and pressure groups see it as an essential part of their remit to campaign, not least at election times. Being non-political, they are quite rightly prohibited from campaigning for a particular party or candidate. But how do we judge whether a campaign on a particular issue is party political in this way? The legislation as it stands uses the test of whether a campaign could be “reasonably regarded” as supporting a particular party or candidate. The noble Lord regarded that as unsatisfactory because it can create uncertainty in a third-party campaigning group about who this hypothetical observer might be and what they would judge to be reasonable. It can and has led them to be overtimid for fear of infringing the law, thus putting a damper on proper civil engagement. The noble Lord argued that this test should be replaced by the “actual intention” of the person undertaking the activity. Do they actually intend to support a particular party or person? The notion of intention is of course a complex one, both philosophically and legally, and the Electoral Commission was not happy about this new definition. However, I believe that the noble Lord, whom I am glad to say is down to speak next, will show how the points made by the Electoral Commission can be answered satisfactorily.

Recommendation 5 of his report concerns the public who are being addressed in a campaign. Members of an organisation who are sent material in the ordinary course of the year are not included in this category as far as registered electoral expense is concerned. In other words, organisations can continue to communicate with their members without that counting as part of their controlled expenditure during the election period. However, in this time of digital communication and social media, who counts as a member? Do committed supporters? My plea to the Government is that when they review the Act in the light of the noble Lord’s recommendations they genuinely consult the sector on this, as well as in other areas, of course. With the advent of the general data protection regulation, people now have to agree to receive information from organisations, and that may provide a category of exemption wider than paid membership but narrower and much clearer than “supporter”.

Recommendation 6 in the noble Lord’s report concerns the length of the regulated period when all expenditure on campaigning has to be accounted for. At the moment this is 12 months, a long period that involves third parties in a disproportionate amount of extra work and expenditure. The noble Lord recommended that the period should be four months, which would bring it in line with elections to the devolved institutions and the European Parliament. I am glad to say that that is supported by the Electoral Commission.

There is an added uncertainty and burden in relation to the regulated period if there is a snap election campaign, as there was in May. For the last 60 years, May has been the month of Christian Aid Week, when Christian Aid engages 20,000 churches and over 50,000 supporters in active volunteering, including knocking on doors to fundraise for the world’s poor. As Christian Aid has said:

“As the Lobbying Act unexpectedly swung into force because of the snap election, it created a red tape nightmare to cover our largest communications and fundraising activity of the year. We faced difficult calculations about whether the costs of certain materials counted in the regulated period, and whether those would have to be withdrawn or replaced at short notice and great expense. We had to create a huge amount of additional bureaucracy to monitor activities, to make sure Christian Aid Week was not seen as political. We spent a huge amount of staff time managing and recording all of this, just in case there was an accusation of being party political. We had many inquiries from supporters like: ‘Can we invite an MP? Can we organise a hustings? We’ve invited the sitting MP already, do we have to invite every candidate in the area?’ Even though MPs have been invited to their local churches for years to show their support, and the vast majority of hustings happen in churches at every election. The Lobbying Act is allegedly not intended to prevent normal charity campaigning activity, but in practice we found that it is cumbersome, unclear, high risk, and had a definite chilling effect—and thereby prevented our normal activity from being carried out”.


Recommendation 10 concerns staff costs, which have to be included in what counts as controlled expenditure. This is quite right if a staff member is employed to work full-time or mainly on a campaign, but what about the scores of people in an organisation who over a 12-month period, as it is at the moment, might have spent a small amount of time in relation to it? The result of the present legislation is an expensive bureaucratic nightmare. The noble Lord, Lord Hodgson, recommends that incidental costs and those below a certain de minimis threshold be excluded, with the Electoral Commission providing guidance as to how that should best be assessed.

Recommendation 17 concerns joint campaigning. This is another area that matters very much to the sector, for obviously it is much more efficient and effective for campaigning groups to work together if they can. However, at the moment, if they do so, each is liable to have the total expenditure attributed to it as part of its controlled expenditure. The noble Lord, Lord Hodgson, recommends that in a joint campaign there should be a designated lead campaigner, with minor campaigners being named but not obliged to register individually unless they individually exceed the spending limit, and that regulation in this area should be clear and simple to adhere to.

Let me give one example of what is involved in complying with the Act as it stands. Friends of the Earth’s declared regulated spend on campaigning activity in the 2017 general election was £43,000. However, although this included staff costs contributing to or undertaking regulated activity, it excluded—as is allowed—staff costs spent on complying with and reporting on the requirements of the Act. The complicated and time-consuming compliance requirements came at considerable financial cost. Friends of the Earth reckons that it diverted considerable resources—donated by members of the public—away from environmental campaigning, awareness raising and advocacy into bureaucracy. It estimates that these staff compliance costs ran to just over £17,000.

There is a similar story from the Quakers, who say that they had spent over the threshold limit for registering six months before the snap election was called, so when it was suddenly called, that expenditure became non-compliant. It is nonsense that the legislation is retrospective in that way.

Since the noble Lord’s report came out, two House of Lords Select Committees have come out strongly in favour of it. The Select Committee on Charities did so because campaigning is part of the lifeblood of so many charities. It stated that the recommendations,

“are eminently sensible and will provide reassurance to charities that they will not face censure for carrying out ordinary campaigning activity during election periods”.

The Select Committee on Citizenship and Civic Engagement did so because campaigning on important issues is obviously a fundamental feature of civic engagement.

Why have we not had the Hodgson report before this House? The Government have given two reasons. They are, first, because of the Electoral Commission’s doubt about the recommendation on the test of what is political from “reasonably regarded” to “actual intention”. As the noble Lord, Lord Hodgson, will show, this doubt can be met. The second reason is because of the shortage of parliamentary time, but it is essential that we have improved legislation in place in time for the next election, set for 5 May 2022. The present legislation involves third-party campaigners in a disproportionate amount of time and expenditure trying to conform to it, and it causes areas of uncertainty about whether they are conforming to the law, which may inhibit them from campaigning.

Earlier this year, the Sheila McKechnie Foundation released a report which strongly endorsed the earlier findings of the Commission on Civil Society and Democratic Engagement. It found that 68% of charities had changed their campaigning as a result of the Act and 51% said that it had affected their ability to achieve their mission. The report found that those who really lost out were the vulnerable and marginalised people whom charities worked with and supported, whose voices have gone missing from the political debate as a result.

To sum up, before the next election it is essential to: first, revise the purpose test, so that only spending on activities intended to influence voter choice are regulated, making it easier for campaigners to work out whether their activity is regulated; secondly, reduce the regulated period from 12 to four months; thirdly, change the retrospective nature of the rules so that they come into force only when a snap election is called; fourthly, improve the joint working rules so that no organisations have to report total costs, taking up the suggestion of the noble Lord, Lord Hodgson; fifthly, remove all indirect staff costs, so that campaigners have to count only activity that is wholly or mainly engaged in the campaign; and sixthly, consult seriously with third parties on how, in the age of social media and GDPR, “membership” can best be defined in a way that does not further inhibit or burden third-party campaigners.

My Lords, there are important things to be done irrespective of Brexit, and one of them is improving the ill-thought-out and chilling legislation of Part 2 of the lobbying Act. I beg to move.

--- Later in debate ---

[Lord Harries of Pentregarth]

My Lords, I thank all noble Lords who have spoken. In particular, I repeat my thanks to the noble Lord, Lord Hodgson, for his excellent report and I also thank the Minister, who has obviously put a lot of careful reading, planning and thought into his contribution to the House today. This debate has brought out the importance of bringing this legislation back and looking at it again as soon as government business allows. There is not only the report of the noble Lord, Lord Hodgson, but contributions such as that made by the noble Lord, Lord Wallace of Saltaire. There may very well be areas that are not properly covered and which need tightening up. This has accentuated the importance of bringing the legislation back.

It has been suggested in some quarters that the third-party campaigners suffer from misconceptions or exaggeration. Perhaps this is true in some cases, but it is a very good principle to listen to the people most fully engaged in work on the ground. There is no doubt that they feel very strongly—as revealed in the reports of the commission that I chaired, and by the McKechnie Foundation—that the legislation works in a disproportionate way upon them. What bears this out is the recommendation of the noble Lord, Lord Hodgson, himself. Nobody could be more objective in his approach. He has a very well-balanced report. It is entitled Getting the Balance Right but his main thrust is that, at the moment, the balance is not right. I very much hope that the Government will think again at some point and look at Part 2 of the lobbying Act as soon as Brexit allows, and certainly before the next general election.

Motion agreed.