Charity lawyer warns new lobbying bill poses 'existential threat to charity campaigning'

Rosamund McCarthy, Bates Wells and Braithwaite

Charity lawyer warns new lobbying bill poses 'existential threat to charity campaigning'5

Governance | Vibeka Mair | 21 Aug 2013

Rosamund McCarthy, a partner at Bates Wells Braithwaite, has said new laws on non-party campaigners will have a “chilling effect” on charities campaigning, and could be in breach of article 10 of the Human Rights Act.

She warns that the threat is not only to large charities, but also to coalition and grassroots local activity, as each entity, no matter how small, has to report the entire spend on campaigning in the run-up to a general election if it is considered to be for 'election purposes' in law.  

This week a number of civil society groups have warned that the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill will severely restrict civil society campaigning.

For the example, the Trades Union Congress has said it contains clauses which will make organising its 2014 annual conference a criminal offence.

The bill makes some key changes to the regulation of campaigning by non-party organisations for 'election purposes' in the year before a general election. Breaching them would be a criminal offence.

The bill does not significantly alter the test of what is an election purpose. However, it dramatically widens the scope of activities that are caught.

It also slashes the spending limit for third-party campaigners to £390,000 and widens the list of costs included in expenditure limits. Unlike political parties, staff time has to be allocated for all activities including media activity, transport and events. Presently only costs of election-directed material, and leaflets and adverts are regulated.

Breach of the Human Rights Act

McCarthy told that the risk was that charities could campaign on existing policies such as welfare benefits, housing, retention of the Human Rights Act or climate change and if this position was adopted by one party, and not another, it could be seen to enhance the standing of a party and therefore affect the results of an election.

In the last election it might have affected, for example, the Royal British Legion military covenant. “This will have a chilling effect on civil society and its freedom of expression,” she warned. “It’s also a possible breach of Article 10 of the Human Rights Act.”

She added: “Charities should remember that because of the European elections, the regulated period for the next election begins in January 2014. The expenditure limits are ludicrous for the period of time up until May 2015.

“My view is that perhaps the Cabinet Office must not understand the range of non-party campaigning and how organisations engage. It is not just charities that could be caught - it could also affect trade associations and business bodies such as the Federation of Small Businesses.”

Cabinet Office: charities not prevented from supporting policies

But a statement from the Cabinet Office said: "We are not significantly altering the test that relates to what charities or anybody else spend campaign money on.

"The changes do not prevent charities from supporting policies that are also advocated by political parties. A charity’s activities would only be caught by the provisions in the Bill if they were doing so ‘for election purposes’.

"If they are campaigning for election purposes then it’s right that they are covered by the regulatory regime."

Existential threat to charity campaigning

But, McCarthy has dismissed this. “Yes, the current test, which is already deeply problematic for charities, is not fundamentally changing but there has been a breathtaking widening of the activities that are caught as well as a dramatic reduction in the threshold.”

She adds that the definition of “election purposes” potentially catches situations in which there is no intent to support a political party.

“The aim of charities campaigning is that all political parties and candidates adopt their policies. This would be the win-win for them.

“Unlike a political party they are not looking for the ‘killer’ policy, so they should not be penalised if their policies do not have cross-party support.

“At the very least the huge uncertainty and the cautiousness of trustees who do not want even the suggestion of criminal liability, could be a major deterrence from planning campaigns.”

She says: “Part 2 of the bill either needs to be amended radically or derailed in its entirety. It is an almost existential threat to charity campaigning.”

NCVO has also expressed similar concerns. Writing in a blog this week, policy officer Elizabeth Chamberlain, said the bill’s definition of election campaigning was so wide that ordinary charity activities could be caught.

NCVO plans to meet Cabinet Office officials this week.

Wendy Cartey
Surgery Practice Manager
2 Sep 2013

We have taken part in many wars in order to give support to those whom we feel do not live in a democracy. I cannot understand why any government should wish to deprive its citizens of the democratic right to peacefully express an opinion and it is disturbing that anyone should even think of such a thing. I am so relieved that 38 degrees enables us to have the right of reply. Already, together, we have achieved so much.

30 Aug 2013

‘for election purposes’.

Is that a wide or broad brush approach?. Even with the comments by the Cabinet Office, this still does not clarify the situation.

The simple questions to be asked are, does 'for election purposes' cover campaigning (on any issues) whether they are inline with the specifics of a political party or not, even when it is an indirect support for an issue or a policy which does not directly interfere with (or do so in collaboration with) a specific political party or a specific politician. Just because agreement is made out towards a policy issue or simply a public interest issue, simply does not mean that any campaigning is for 'election purposes' - I am thinking that this must have a strict and express operational effect, a literal approach.

If it does not have that approach, even when considering the government's margin of appreciation, it may well fall foul of being in breach of Art 10 echr.

Finally, whilst the campaigning spending limits of 390,000 for third party campaigners (clearly the ones who would be captured by the Bill) does this limit take into account that different issues and different political policies,
require a different approach, such differing approach resulting in differing spending levels which may fall above the limit prescribed. If the limit prevents spending on an issue and this effects the right of the body to impart with it's political ideas, even this could fall foul of the conventional rights.

Mr. N.Ridley
24 Aug 2013

I am a member of, and regular donor to, several charities whose aims I support It is therefore important to me as an individual that these organisations are able to press the case for their particular endeavours in political and non political terms. To suspend, frustrate or criminalise such endeavours I would see as a direct and deliberate attack on my freedom of expression and personal rights.
And overall one can see this Bill as an open and direct attack on the functioning of the democratic system under which we all thought our electoral system worked, while enhancing the position and power of the political classes.
This Bill must be stopped in its tracks, in its entirety.

Janet Payne
22 Aug 2013

Instead of just discussing and being disgruntled with some of the new moves by government, I'm supporting 38 degrees in their efforts to keep Britain a nation to be proud of.

Carl Allen
21 Aug 2013

Good analysis but charities must consider their campaigning activities pose a threat to many politicians e.g. politicians who espouse a ... what I believe over the evidence gathered, politicians who believe their friends deserve a second chance but not others re ask many a jailed looter.

Thus charities have become fair game from a political viewpoint when hunting season is open i.e. election. And perhaps from that viewpoint, as many can be shot should be shot to ease the burden when the hunting season is closed.


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