As the dust begins to settle on yet another turbulent poll, many commentators have already begun speculating on whether the next vote might not be far away. With Theresa May’s authority seriously undermined and the Conservative Party dependent on DUP support to maintain a wafer-thin majority in Parliament, few would be willing to bet against the next election coming before the year is through.

But what does this turbulence and uncertainty mean for charities, businesses, campaigning organisations and others wishing to push forward their agenda, in the context of renewed concerns over the chilling impact of the Lobbying Act?

Simon Steeden, partner at Bates Wells Braithwaite, says:

“This election has raised further questions as to whether the current rules governing non-party election campaigning are fit for purpose.

“Fifty charities wrote to all of the political parties during the campaign, expressing concern about retrospective regulation imposed by the ‘Lobbying Act’.”

“The hung parliament means that the spectre of another vote will be ever present, and campaigners will be assumed to be on constant election footing. For example, it could mean that the regulated period for the next election begins today, meaning that campaign groups have to potentially start counting expenditure today.”

“As a result, concerns about retrospective regulation will be supercharged, and reform of the Lobbying Act must become an urgent priority.”

Orwellian regulation?

The snap election campaign clearly highlighted the unfair nature of rules regulating non-party election campaigning, and their chilling effect on civil society engagement in policy debates during an election campaign.

The rules governing non-party campaigning were expanded in 2014 by the controversial ‘Lobbying Act’, which introduced a year-long regulated period prior to a general election. During that period, spending on activities ‘reasonably regarded’ as intended to promote the electoral success of parties or candidates can result in requirements for organisations and individuals to register with the Electoral Commission and comply with extensive controls over their spending and donations.

Though raised as a concern during the passage of the legislation, it took the snap election to highlight the retrospective nature of the regulated period when a ‘fixed term’ Parliament is cut short. In Orwellian drafting, it soon became clear that organisations’ spending was potentially regulated for a period of one year prior to the election, despite the election being called only two months before polling day.

The prospect of retrospective regulation of activities undertaken when there was no reasonable prospect of a general election before 2020 culminated in over fifty charities writing to political parties outlining their concerns about the legislation’s chilling impact on charitable engagement with important policy debates.

Despite clear deficiencies in the law, some non-party campaigners carried on campaigning relying on the safe assumption that spending incurred before the election was called generally could not ‘reasonably be regarded’ as intended to influence an election that was not expected to be held for years.

In the aftermath of the snap, the case for Lobbying Act reform is becoming unanswerable

The uncertain new political landscape will soon supercharge this debate. Already non-party campaigners were concerned that they could never be sure when an election would be held, meaning that the spectre of regulation would be ever present. The aftermath of the election can only exacerbate that concern, with the prospect of another election likely to hang continuously over a fragile government. When that election comes, it may be much harder to rely on a blanket assumption that spending before the election was called will not be regulated, because organisations might ’reasonably be regarded’ as being on a constant election-footing. Some campaigners are already asking whether the next regulated period starts today.
All of this highlights clearly the critical need for reform of legislation which has recently been described by a United Nations Special Rapporteur as “likely to have serious ramifications if adopted by less democratic states whose intention is to repress civil society”. In an independent review of the non-party campaigning rules last year, Lord Hodgson suggested a package of reform, including the suggestion that the regulated period be reduced to four months. The snap election and its aftermath have demonstrated that the need for such reform is now both pressing and unanswerable.


Posted on 09/06/2017 in Legal Updates

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