The Lobbying Bill – due to complete the Lords committee stage before Christmas – is intended ‘to ensure that people know whose interests are being represented by consultant lobbyists who make representations to government’. Part One provides that lobbyists must disclose the names of their clients four times a year in a public register; there will be a registrar to enforce compliance, and sanctions for non-compliance. This should make ministers more cautious about promoting policies that favour special interests, and should make special interest groups more cautious in their dealings with ministers. Those who want to engage in this type of lobbying, and can afford it, can properly be expected to bear the costs of regulation.
The desire to control this kind of lobbying goes back at least to the Neil Hamilton ‘cash for questions’ scandal in the 1990s. Hamilton, a Tory minister (for deregulation) with bracingly right-wing views (pro-hanging, anti-NHS, anti-EU, anti-immigrants, with a whiff of anti-Semitism), took brown envelopes full of cash from a PR man called Ian Greer in exchange for asking questions on behalf of Mohamed Al-Fayed. It was alleged that he had also taken cash from Mobil Oil to propose amendments to legislation that affected the company. Hamilton lost a libel action against the Guardian, which had exposed him, and after a parliamentary inquiry found him guilty he resigned as an MP, and took the Calvary of TV celebrity, with his redoubtable wife, Christine, at his side. He was not the only MP on the take, just the most notorious one.
But putting a definitive stop to this sort of thing is only one purpose of the bill. Part Two has nothing to do with such abuses, and has drawn fire from numerous civil society groups, churches, charities and NGOs which believe that the regulatory burdens it imposes on them will prevent them from campaigning effectively during election periods. The bill introduces extensive amendments to the Political Parties Elections and Referendums Act 2000 (PPERA), which had itself caused difficulties for some campaigners. PPERA required many groups engaging in ‘non-party campaigning’ to register with the Electoral Commission and limited their spending during the ‘relevant period’ before a general election (the ‘relevant period’ is 365 days before an election – fine if Parliament runs for its five-year fixed term, but if an election is called early it’s not clear how the rule will apply). The new bill takes this regulation much further.
Part Two was introduced without consultation and its early stages were rushed through Parliament. Only one day was allocated for the committee stage even though the government produced amendments at the last minute. Graham Allen, the chair of the Political and Constitutional Reform Committee, criticised its ‘hysterically fast progress’ and claimed that the bill had not been considered properly. ‘Parliament has been disrespected,’ he said. ‘Parliament has been abused.’
The bill would reduce by 50 per cent the amount an organisation is able to spend during the ‘relevant period’ before a general election unless it is registered as a ‘recognised third party’ with the Electoral Commission. Many smaller organisations will now be drawn into the regulatory regime, by spending just £5000 in England, or £2000 in the rest of the UK. The bill also reduces the maximum amount an organisation can spend during that ‘relevant period’ by 60 per cent, from £988,500 to £390,000. The threshold and the maximum spend are to include staff and production costs, and possibly contributions in kind, such as voluntary work, so the actual campaign spending would be lower still. It also introduces tight limits on what can be spent in individual parliamentary constituencies.
The worst part of the bill is the most obscure. Under PPERA, expenditure is controlled only in relation to ‘election material made available to the public or a section of the public’, defined as material that could reasonably be regarded as intending to affect the prospects of parties or candidates who are for or against particular policies during an election campaign. The bill replaces ‘election material’ with ‘election purposes’, defined apparently more broadly as ‘for the purpose of or in connection with’ affecting the prospects of candidates. What does ‘in connection with’ mean, and how is a campaign group to know whether its activities are outside the law?
The following expenses, whether in money or time, are among those that qualify for registration: any form of advertising in any medium; unsolicited material (except to registered donors, subscribers or active supporters); rallies and public events; canvassing or market research to obtain polling information; and press conferences. Imagine that you are a small charity dedicated to the relief of poverty in, say, Camden. With an election due in May 2015, your ‘relevant period’ starts 12 months before. You want to inform the borough’s residents that they have neighbours who can’t afford both to eat and to keep warm; there are families living in overcrowded B&Bs; employers who aren’t paying the minimum wage. You aren’t backing any of the candidates or parties, but all of them have made poverty a theme in their manifestos and campaigns. You want to send out fliers and hold meetings. You rely on volunteers. You calculate that the value of their time and your cash expenses add up to more than £5000. If you register, you must declare any ‘reportable donation’ in detail. If you don’t comply, you’re liable to civil and even criminal sanctions. Someone in your organisation will have to spend time ensuring that procedures are being followed.
It is obvious that charities of all sizes campaign on matters of public policy: they may not be political organisations, but they inevitably deal with political issues. If they produce material ‘in connection with’ promoting the electoral prospects of politicians who share their views about poverty in Camden, or about the evils of landmines, or global warming, they will not escape regulation. This won’t make their work impossible, but it will take up time. It may also put off willing and honest people from helping to promote causes they believe in. It will deter charities from engaging in campaigns at a time when the public are most likely to be receptive, because they know their votes may bring about a change in policy. For larger organisations, compliance will take up a disproportionate amount of time and resources, requiring complex and expensive recording and auditing procedures.
These measures have nothing to do with stopping bent MPs and ministers accepting money in order to influence policy. The House of Lords Constitution Committee has argued that the changes are unnecessary: the Charity Commission and PPERA already keep charities and lobby groups in order and the bill would constitute an unjustified additional burden. An ‘explanatory note’ claims that the bill ‘increases transparency in relation to spending by non-parties by requiring them to publish and record more information about their spending, donations, accounts and board members’. The government here gives transparency disproportionate weight as against the harm that the bill is likely to cause.
A case can be made that the lack of clarity in the key provisions imperils the right to free expression under Article 10 of the European Convention of Human Rights and Fundamental Freedoms (the last three words are often left out – they shouldn’t be). Legislation like this gives weight to Geoffrey Robertson’s quip that speech in the UK is not free, it’s very expensive. But maybe there’s more to it. While it may be difficult to impute a darker purpose to this legislation (and executing dark purposes may require a level of competence not always reached by those in power), what is discernible is a dark outcome, especially when you combine this bill with other moves to restrict challenges to government policy. Chris Grayling, the minister of justice, has criticised charities and ‘professional’ campaign groups which use judicial review to challenge ministers’ decisions: hence the draconian limitations to be imposed on judicial review. Appeal rights are being taken away from people refused admission to the UK and those facing deportation. The castration of legal aid puts access to justice out of reach for most people. We have more secret courts, thanks to the ludicrously named Justice and Security Act 2013. The last thing we need is a law that exposes the directors and trustees of charities and campaigning bodies to the risk of criminal sanctions if they speak out at election time.