Legislation currently going through parliament which was supposed to address parliamentary corruption scandals may end up gagging community groups, including anti-racists, instead.

In the wake of a rash of corruption scandals which revealed the ubiquity and dominance of corporate interests at Westminster,[1] the government was forced to take action to regulate corporate lobbying. It used the opportunity to incorporate new legal restrictions on unions’ funding of the Labour party. The result is the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill, published and given its first reading in the House of Commons the day before parliament broke up for the summer. What no one had anticipated was the inclusion in the Bill of draconian new restrictions on so-called ‘third party’ campaigning, which will leave campaigns against racist electioneering particularly vulnerable.

Critics including Transparency International and Spinwatch agree that the Bill, whose only attempt to regulate lobbyists is to create a register (and even that will exclude most lobbying), will do little or nothing to improve transparency or to curb the influence of corporate interests over policy. Graham Allen MP, who chairs the Political and Constitutional Reform Committee, described the anti-lobbying provisions as a ‘dog’s breakfast’. But it is the provisions of Part II of the Act, dealing with ‘election campaigning’ by third parties, which have caused widespread alarm – among anti-racists and migrant support groups as well as the voluntary sector generally and human rights lawyers, who have expressed concern about curbs on freedom of political expression. The TUC believes that ‘campaigns against racism could count, as they may discourage support for extremist parties.’ There is real concern that in the year before an election – just the time when parties tend to turn up the heat on immigration and race issues – national anti-racist campaigns run by a coalition of unions, civic and faith groups will be impossible if the Bill goes through.

The changes

The main changes to the current regime which regulates election campaigning by bodies which are not political parties in the year before national and EU elections, are:

• an expansion of regulation from expenditure for ‘election materials’ to any expenditure ‘for election purposes’, including staff and research costs;
• a broad definition of ‘election purposes’ which could catch any organisation which seeks to influence public opinion;
• a dramatic lowering of the spending threshold which triggers a requirement to register with the Electoral Commission;
• hugely increased bureaucratic burdens on registered bodies, including weekly reporting of donations during an election period;
• a massive reduction in what registered bodies can spend in an election period, with criminal sanctions for overspending.

Ever since the Political Parties, Elections and Referenda Act 2000 came into force, campaigning organisations seeking to influence national and EU elections have had to register with the Electoral Commission if they spend over a certain amount on election materials (£10,000 in England and £5,000 in Scotland, Wales or Northern Ireland). Registered organisations must stick within spending limits of just under £1million for the United Kingdom, and have to account for their expenditure at the end of election campaigns. The changes make it likely that any group, including charities and trade unions, which campaign against racism as part of their wider work, will be forced to register in order to continue their work during the year before a general or EU election.  

The new Bill’s provisions are opaque and difficult to follow, as they take the form of amendments to the previous legislation, and the sections describing constituency limits on spending are technical and complicated, featuring mathematical formulae. But what is clear is that the Bill seeks to extend regulation to any ‘campaigning’ activity defined as being ‘for election purposes’ – not just the production of election materials, as is currently the case. The section describing ‘election purposes’ – which will be subject to regulation – seems on the face of it to follow the previous formulation, referring to promotion of a party or candidate (including disparagement of others). But the Explanatory Notes to the Bill go much further, stating that what constitutes ‘election purposes’:

‘does not rely solely on the intent of the third party; the effect of the expenditure must also be considered. Any campaign expenditure which satisfies the definition outlined by [the section] will be counted as controlled expenditure, regardless of whether those incurring the expenditure intended it (or also intended it) for another purpose.’[2] (our emphasis)

This means, as anti-fascist group HOPE not hate has said in a briefing, that ‘every organisation which seeks to influence public opinion, in the twelve months before a general election, either directly or as a consequence of its actions, will now be covered. This will include charities, think tanks, trade associations and even blogs and websites.’

Any organisation spending £5,000 or more during an election year ‘for election purposes’ in England (£2,000 in Scotland, Wales or Northern Ireland) will have to register with the Electoral Commission, on pain of criminal sanctions. The total includes costs of research, costs of organising events and even staff costs – although political parties are not required to include staff costs in their return as the government accepts it would be too difficult to work out!  Also included as ‘controlled expenditure’ are aggregate costs of joint campaigns – this means that each organisation participating in a joint information campaign about racist parties or candidates, for example, would have to include the whole cost of the campaign in its expenditure.

Bureaucratic burdens

Although registration with the Electoral Commission allows organisations to spend on ‘election purposes’, the limits of what they can spend have been slashed. HOPE not Hate, one of the very few organisations to register under the current law because of its work combating the BNP at elections, points out that it will be limited to £390,000 across the UK in an election year (including all the costs referred to above), while the BNP (or UKIP) can spend £18.96 million in the same period. Spending in one constituency is limited to £9,750 in an election year – a limit which prevents effective local campaigning against racist parties. If this limit had been in place in 2009, the BNP might well not have been defeated in Barking and Dagenham in 2010.

The new provisions will impose huge new burdens on registered organisations. Instead of having to report at the end of the campaign, they will have to report on expenditure and donations quarterly, and weekly in a general election following the dissolution of parliament. All this regulation will act as a significant deterrent to any political campaigning, or even commentary, by anti-racist groups.

Media interviews or politics blogs ‘for election purposes’?

Despite the huge impact the Bill will have on all voluntary sector organisations which include some campaigning in their work, Part II was not put out for consultation before publication, the Bill’s second reading was on 3 September, just days after MPs returned from their holidays, and the Bill’s committee stage is scheduled for 9-11 September, leaving no time for thought or informed debate. Even the statutory body given the responsibility for overseeing the new provisions, the Electoral Commission, was not consulted on the detail of the Bill’s provisions.

The Commission has forcefully criticised the government for creating ‘significant regulatory uncertainty for large and small organisations that campaign on, or even discuss, public policy issues’ in the year before a general election, and for imposing ‘significant new burdens’ on such organisations.[3] Campaigning groups, it says, will have to assess whether any of their planned activities will fall within the new definition of ‘election purposes’; estimate the likely costs of these activities, including staff costs, and how far the costs relate to particular constituencies; consider whether their plans involve coordinated campaigning with other organisations and if so, the total costs of the campaign (which will be unknowable); decide whether they need to register with the Electoral Commission; and ensure that they stay within the reduced spending limits.[4]

Two of the examples the Electoral Commission gives are of relevance to anti-racist campaigns. The first is of a voluntary organisation with expertise in a particular policy area, which is asked by media organisations for its views on issues and parties’ policies. Would the costs of setting out the organisation’s views in response to such requests count as ‘for election purposes’, the Commission asks. If so, a proportion of the salaries of its press and policy teams would be regulated, and the organisation would have to register. In the second example, the Commission asks: would a blog commenting on politicians’ views and activities during an election year be considered ‘for election purposes’ so that production costs and a proportion of maintenance and promotion of the website would have to be counted? As the Commission points out, a few thousand pounds’ worth of staff time over the year on political issues could mean being drawn into the regulatory regime and the fearsome bureaucratic burdens it brings.

During the second reading debate on the Bill in the House of Commons on 3 September, the minister presenting the Bill, Andrew ‘the NHS is safe in my hands’ Lansley, now leader of the House, sought to deride the criticisms and to maintain that the test for ‘election purposes’ is the same as before. But in the same speech, he repeatedly referred to actions ‘whose intention or effect’ was to favour a particular candidate. It is obvious that condemning racist electioneering has the effect of favouring the candidates who don’t do it – but nowhere did Lansley get to grips with, or even demonstrate awareness of, this contradiction.

Charities too?

The Cabinet Office has apparently claimed that charities are not affected by the new law. But leading human rights lawyer Helen Mountfield QC has advised that the Bill is not clear on this, and uncertainty about what the law requires is likely to have a ‘chilling effect’ on freedom of expression, by putting small organisations and their trustees/directors in fear of criminal penalty if they speak out on matters of public interest and concern.

Despite the concerns of campaigners, charities, faith groups and unions, the Bill went through its second reading and is scheduled to end its Commons stages by mid-September. If it is passed, it will do untold damage not only to the anti-racist movement but to grass-roots democracy in the UK.

Related links

Read the Bill here

Transparency International

Spinwatch