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«The Transparency of Lobbying, Non Party Campaigning and Trade Union Administration Bill House of Commons Second Reading Tuesday 3 September 2013 On ...»

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The Transparency of Lobbying, Non Party Campaigning and

Trade Union Administration Bill

House of Commons Second Reading

Tuesday 3 September 2013

On 17 July 2013, the Transparency of Lobbying, Non Party Campaigning and

Trade Union Administration Bill (‘the Bill’) had its First Reading. This briefing sets

out thematically for parliamentarians our views on Part 2 of the Bill, which

amends the rules covering ‘non-party campaigners’ – people and organisations

other than political parties and candidates – in the run-up to a UK Parliamentary General Election (UKPGE). Many of the changes will also affect future elections to the other UK legislatures and the European Parliament.

For further information, please contact Warren Seddon, Public Affairs Manager on 020 7271 0632 or wseddon@electoralcommission.org.uk.

Key points for Second Reading It is important that, where non-party campaigning takes place on a scale that could have a significant impact on elections, it is transparent and controlled.

Inadequate controls could ultimately result in voters losing trust in the fairness and effectiveness of the UK’s overall framework for regulating political campaigning. We regulate the general rules relating to this type of campaigning.

The Bill both widens the scope of the current rules on non-party campaigning that affects parties and groups of candidates, and imposes some additional controls on such campaigning. In our view, as drafted, the Bill raises some significant issues of workability that you may wish to explore at Second Reading.

Areas that you may wish to focus on in particular include that:

 the Bill creates significant regulatory uncertainty for large and small organisations that campaign on, or even discuss, public policy issues in the year before the next general election, and imposes significant new burdens on such organisations  the Bill effectively gives the Electoral Commission a wide discretion to interpret what activity will be regulated as political campaigning.

It is likely that some of our readings of the law will be contentious and challenged, creating more uncertainty for those affected. While we as the independent regulator should be free to decide when the rules have been broken, and how to deal with breaches of the rules, we do not think it is appropriate for us to have a wide discretion over what activity is covered by the rules  some of the new controls in the Bill may in practice be impossible to enforce, and it is important that Parliament considers what the changes will achieve in reality, and balances this against the new burdens imposed by the Bill on campaigners Background

1. Campaigning by organisations that are not political parties in the run-up to elections is an important and established part of the UK democratic process.

But itis also important that it is regulated effectively, under clear and enforceable rules, to give voters confidence that political campaigning is appropriately controlled and transparent.

2. We regulate the controls on political party and election finance under the Political Parties, Elections and Referendums Act 2000 (PPERA) and are responsible for monitoring and enforcing compliance with the current rules on non-party campaigning that promotes or prejudices the electoral success of political parties and groups of candidates. The police are responsible for dealing with breaches of the rules on non-party campaigning for or against individual candidates

3. Earlier this year we published a briefing1 setting out the scope of the current rules, how we regulate them and how much regulated activity has taken place at recent elections. In June we published a regulatory review of the current party and election finance rules which recommended some changes to the rules on non-party campaigning, including widening the scope of the activities covered by the rules 2. Our review also emphasised the need for any such changes to be carefully defined, and for the PPERA spending limits to be reassessed alongside any change to the scope of the rules. This is because changes to the rules on non-party campaigning need particularly careful consideration, and it is important that spending limits are sufficient to enable freedom of expression.

http://www.electoralcommission.org.uk/__data/assets/pdf_file/0004/155380/Briefing-on-thirdparty-campaigning-in-the-UK.pdf http://www.electoralcommission.org.uk/__data/assets/pdf_file/0003/155874/PEF-RegulatoryReview-2013.pdf See paragraphs 4.34 - 4.50

Our assessment of the impact of the Bill

4. We share the concerns that the Political and Constitutional Reform Committee expressed in July about the timing of the Bill and the absence of pre-legislative scrutiny. We have submitted written evidence to the Committee on the Bill, which makes similar points to those contained in this briefing, and are scheduled to provide oral evidence to it on the same day that Second Reading of the Bill is due be held.

5. The timing of the Bill is a particular issue in the context of regulating non-party campaigning at the 2015 UKPGE, because if it is enacted the changes will take effect by May next year, which will allow only a matter of weeks for organisations to prepare prior to the introduction of the new regime 3.

6. In our view the Government has not yet set out clearly the rationale for many of the changes in the Bill, and it is therefore hard to assess whether the Bill delivers the Government’s policy objectives. You may wish to explore the exact policy aims of the Bill at Second Reading.

7. Since the Bill extends the rules to cover activity that we do not currently regulate, we have also discussed the Bill with over 40 organisations across the UK including campaign groups, charities, trade unions, political parties, legal advisers, umbrella bodies and other regulators. We are grateful to these organisations for giving us their time. Our comments on the Bill do not of course represent the views of anyone other than the Commission.

8. We have said to the Government that we are ready to advise it on how to help the Bill achieve the Government’s policy objectives in a proportionate way, but that the Bill as drafted raises some significant concerns. These are summarised below thematically under the headings ‘Uncertainty and burdens for campaigners’, ‘Discretion and the risk of challenge’ and ‘Enforcing the rules’. Where possible we have suggested possible ways of dealing with our concerns, although in the limited time available to consider the Bill and meet with those that may be affected by it over the summer recess, we have not been able to consider or test these fully.

The current PPERA rules provide that campaigning at the next UK Parliamentary general election will be regulated from January 2014 onwards, under a combined regulated period that also covers the 2014 European Parliament elections. The Bill provides that the current rules will apply to the period from January to May 2014, and the new rules in the Bill will apply to the period from 23 May 2014 until May 2015.

Uncertainty and burdens for campaignersContext – the current rules

9. Non-party campaigners are inherently more complex to regulate than political parties. Political parties have to register with us in order to stand candidates at elections, and naturally have a strong focus on election campaigning. They are therefore relatively simple to regulate. In contrast, non-party campaigners often have many other objectives beyond expressing views on political and policy issues. In effect, they are regulated under PPERA because of what they do, and not because they are a particular type of organisation. It is therefore particularly important that the rules on what activity is regulated are clear, so that those affected by them can tell whether and how they will be regulated.

10. The current PPERA rules on non-party campaigning are relatively narrow in scope (only covering ‘election material’) and the definition of what is covered is relatively clear, so we are able to produce guidance that builds on the legislation. However, it can still be hard for campaigners to understand what activity is regulated. For instance, activity by charities (which are not allowed to be party political under charity law) can be covered. A common example is where an organisation invites prospective candidates at an election to say whether they support its views, and then issues a leaflet setting out the names of candidates who have expressed support. This will be controlled as election material if it is distributed to the public, even though those producing the material may argue that their aim is only to comment on public policy, or to influence politicians’ agendas, rather than to persuade the public to vote in a certain way.

The changes in the Bill

11. The Bill makes major changes to the current rules. The new rules are closely modelled on those that currently apply to political parties, but will have to be read and applied in a quite different context because third parties are so

different from political parties. The Bill:

 widens the range of activities that are regulated, to include rallies and events, media work, market research such as polling, and transport for the purpose of obtaining publicity (schedule 3) o all these activities will be regulated if they are carried out for “election purposes” (clause 26, see also ‘Interpreting the legislation’ below) o all the related costs of the activity will count against spending limits, including staff costs 4  reduces the thresholds for registering with us as a campaigner by 50% or more, to £5,000 in England and £2,000 in Scotland, Wales and Northern Ireland (clause 27)  reduces the limits on what a campaigner can spend on regulated activity in each part of the UK in the year before a UK general election by 60% or more, to £320k in England, to £35k in Scotland, to £24k in Wales and to £11k in Northern Ireland (clause 27)  places new controls on spending that only has a ‘significant effect’ in particular constituencies, or supports a single political party (clauses 28 and 29), and new or amended reporting requirements on donations towards regulated spending, and on campaigners’ finances (clauses 32 and 33) The impact on campaigners

12. This means that, for campaigners to understand whether and how the Bill will

affect their activity in the year before May 2015, they will have to:

(1) assess whether any of their planned activity will fall into the new list of categories covered by the Bill and the new definition of ‘for election purposes’;

(2) estimate the likely costs of those activities, including staff costs etc, and how far the costs relate to activity in particular constituencies;

(3) consider whether their plans include coordinated campaigning with other organisations, because under both the current law and the Bill, the total coordinated spending will count towards the individual spending limit of each campaigner; and (4) decide whether their plans will require them to register with us, and how to ensure they stay within the reduced spending limits.

13. This will be particularly challenging for campaigners because of the need to apply the definition of ‘election purposes’, which is new and untested in the context of non-party campaigning. In the limited time available we will aim to produce guidance to assist with this, and will offer advice on particular queries where possible, but our experience strongly suggests that it will not be straightforward to apply the new rules to many specific types of activities.

Campaigners will face additional uncertainty if there is a legal challenge to In this respect the Bill differs from the rules on political parties, whose staff costs are not regulated (schedule 3 ‘new schedule 8A’, paragraph 2 cf. schedule 8, paragraph 2(1)(d) PPERA) our interpretation of the law. These factors will create a lot of complexity and uncertainty for those who may be covered by the rules. Some brief examples of the sort of issues that may emerge under the Bill as drafted


 a small community organisation in Wales intends to campaign about a local planning issue in the year before the election. The organisation has a part-time employee whose work includes organising meetings, writing publicity material and liaising with the media. How much of this person’s work will count as ‘for election purposes’? The organisation will need to register with us if its regulated spending exceeds £2,000 and must keep within spending limits of £24,000 within Wales and £9,750 within any one constituency.

 a voluntary organisation is seen as having expertise in a policy area on which several political parties make policy announcements in the run-up to the election. The media frequently ask the organisation for its views on the issues and the parties’ policies, and sometimes invite it to provide interviewees for broadcast coverage. Will the cost of reactively setting out the organisation’s views count as ‘for election purposes’? If so, a proportion of the salaries of the organisation’s press and policy teams would be regulated and will require the organisation to register with us.

 three national organisations plan a protest march and rally to draw attention to concerns about a policy issue on which political parties have different positions. Will the event be judged to be ‘for election purposes’?

If so, the associated costs (including publicity, transport, media work, and infrastructure costs such as policing and first aid) could easily exceed a national spending limit for the year before the election, and the total spending of all the organisers could count against each organiser’s individual spending limit.

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