When the Government published the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill just prior to the summer recess it was met with widespread condemnation. This company has decried the lack of a statutory Code of Practice to underpin the proposed Register of Lobbyists and the Bill’s fitness for purpose, excluding as it does the need for many ‘lobbyists’ to be registered, is seen as meaning that the Bill will prove ineffective. There is also the issue that most of the recent lobbying ‘scandals’ have not involved lobbyists at all but MPs and Peers inexcusably abusing their positions to make a quick buck.
But unfortunately bad legislation like this often claims many victims. Beneath the rows over the register of lobbyists and the blatant politicisation of this Bill via the Trade Union clauses sits the dangerous and potentially toxic Part 2 of the Bill with its focus on ‘third party groups’. Third party groups for the purposes of electoral law are in effect those bodies which sit alongside political parties and which fundraise or campaign with a political purpose. They must be registered with the Electoral Commission and their activities are monitored and regulated. They are a million miles away from the arrangements which we see in the US where Political Action Committees, or so-called Super PACs, are able to raise significant sums of money and attract media attention on behalf of their chosen Party. Nonetheless they are a relevant and accepted part of the British electoral system.
What this Bill does however, and which has today been highlighted by the National Council for Voluntary Organisations (NCVO) in a letter to Cabinet Office Minister Chloe Smith MP, is to blur the lines between third party groups and other organisations seeking to get across a message or a position. Examples given by the NCVO include charities campaigning against a bypass or a health charity arguing for further restrictions on tobacco companies but the range of examples that could be provided are myriad.
The crux of the problem is the extension of the Political Parties, Elections and Referendums Act 2000 so that expenses above a de minimis threshold made by an organisation in the 12 months preceeding a General Election can be deemed in breach of regulations governing non-political activity. Crucially this includes shifting the burden of proof so that organisations can inadvertently infringe the rules just by appearing to endorse a political party or individual candidate’s position.
The Bill says that the Electoral Commission will prepare a Code of Practice governing the type of expenditure included in these regulations but by then the power of the state to prosecute charities for campaign material will be a reality.
The dangers of this should not be underestimated and nor should the prospect of this passing quietly into law. This company has been involved in the passage of scores of Bills through Parliament and the most dangerous provisions are often those which struggle for attention beneath big national issues. That is the case here and whilst the main parties argue over the lobbying register and the trade union controls it is important that Ministers are forced into accounting for their decision to bring charities and others much closer to electoral law.