Criticism was voiced when the Transparency of Lobbying Act was first introduced but how have the provisions affected charities in the run up to the general election?
The “Transparency of Lobbying Act” amended and expanded the scope of rules that already existed under the Political Parties, Elections and Referendums Act 2000 (PPERA). Those rules require non-party campaigners to register with the Electoral Commission if they exceed a registration threshold for expenditure which might reasonably be regarded as intended to promote or procure (or prejudice) the prospects of particular parties or candidates, including candidates united by policy position (described by the Electoral Commission as the “purpose test”).
In our experience, many charities are self-censoring their campaigning activities to avoid satisfying the “purpose test”. So, for example, charities are avoiding publication of policy commitments made by political parties or candidates in support of the charity’s agenda, due to concerns that this would pass the purpose test.
Charities are also incurring expenditure on advice and internal compliance, either to ensure that they do not need to register with the Electoral Commission, or to ensure they comply with rules regulating reporting of expenditure and donations once registered.
What are the particular concerns of charities?
Rightly or wrongly, many charities are concerned that registering with the Electoral Commission could be construed as suggesting that they are inappropriately politically biased. Charities are prohibited from supporting particular political parties or candidates a matter of charity law, as they are not able to exist for political purposes. However, the purpose test is an objective test of what a reasonable third party might think was an intention of an activity, rather than a subjective test of what the intention was in fact.
Charities are also concerned by the ambiguity of the rules, which can make it difficult for them to determine whether proposed activities are regulated.
What sanctions could a body face if they were found to have breached the provisions of the Act?
PPERA contains a number of civil and criminal sanctions. The Electoral Commission is able to issue compliance notices and stop notices requiring organisations in breach of the rules to take or stop particular actions in order to ensure compliance with the Act. The Electoral Commission can also issue fines of varying levels depending on the seriousness of the breach. The Commission can refer serious breaches for criminal investigation by the police, which could in very serious cases result in unlimited fines or imprisonment for an individual responsible for the breach.
Could a charity been held to be in breach of its constitutional documents if it is unable to pursue campaigning activities which its trustees believe would advance its charitable objects as a result of the Act?
Activities undertaken by charities in pursuit of their charitable objects must be pursued for public benefit and in accordance with applicable law. It is, therefore, unlikely that a charity would be in breach of its charitable objects where it takes, or does not take, a particular course of action in order to ensure compliance with legal obligations such as those under PPERA.
It is also relevant that PPERA does not prohibit regulated activity (apart from at levels of expenditure likely to be relevant only to a minority of charities), it requires registration with the Electoral Commission if expenditure is incurred on regulated activity over a prescribed threshold.
Have there been any positive outcomes as a result of the Act?
Arguably, the “Transparency of Lobbying Act” has resulted in an overdue public debate about transparency in political fundraising and about the changing nature of civil society engagement in politics. The campaign against the Transparency of Lobbying Act has also been a strong example of the strength of the non-party campaigning sector, uniting many unlikely bedfellows in opposition to the Act!
Although charities have been vocal on the issue, lobbying organisations have been less publically opposed to the Act. Has the Act had less of an effect on third-party lobby groups?
The non-party campaigning rules under PPERA, as amended by Part 2 of the “Transparency of Lobbying Act”, do not apply to private lobbying activities. Generally, only public-facing campaigning activities are regulated.
Part 1 of the “Transparency of Lobbying Act” introduced a statutory register of lobbyists, but these new rules apply only to consultant lobbying of Government ministers and senior civil servants, meaning that they have not had an impact on in-house, private lobbying.
Posted on 31/03/2015 in Legal UpdatesBack to Knowledge