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 civilsociety.co.uk 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.