We recently responded to an independent review being carried out by Lord Hodgson of Astley Abbotts on the new third party campaigning rules. This post sets out the approach we took to the new system, and some concerns we have with the way the new rules work in practice.
Last year new rules were introduced by the Lobbying Act for all ‘non-party campaigners’ – which includes charities – to regulate campaigning activities ahead of General Elections. See previous blogs here, here and here.
In debates on the legislation the National Trust argued that significant changes were needed which would allow improvements in transparency and accountability without undermining the positive role that charities play in enabling informed public policy debate. The National Trust has a long history of reasoned contributions to policy matters which affect our cause, using our expertise across a wide range of policy areas.
Most recently the National Trust has:
- Sought changes to the Planning Bill through a “Planning for People” campaign. Over 200,000 members of the public showed their support by signing our petition, resulting in changes to the Bill by the government. Our work was grounded in our experience as a champion for a strong, effective land use planning system since the 1920s.
- Supported calls for rethink of the government’s proposed changes to the arrangements for the ownership and management of the public forest estate. This was grounded in our experience as one of the largest public owners of forests and woods in the UK.
- Challenged the government to go further in the designation of Marine Protection Zones following the decision to downscale the extent of the new network of MPZs. Our advocacy was based on our experience of direct engagement in the process for identification of potential MPZs and as a partner in establishing the first MCZ in UK waters off Lundy.
- Have proactively engaged in the design and routing of HS2, working with local authorities, parish councils, communities and HS2 Ltd to improve the quality of the scheme and to ensure that the future needs of the communities and places affected are taken into account.
When considering the new system, the National Trust looked at the Lobbying Act and Electoral Commission Guidance which goes with it, and, as we did not intend to spend big sums of money on or commit large amounts of staff time to public campaigning, decided we were unlikely to be impacted.
Even if we had been planning to run a campaign, the rules that apply to charities on political impartiality – which we support – are fairly comprehensive. It is hard to imagine a situation where a charity is abiding these rules, but falling foul of the electoral campaigning rules.
This leads us to question whether having two sets of regulation is unnecessary red tape for charities, and to suggest that the existing system to ensure the impartiality of charities inside and outside of election periods is sufficient and proportionate.
Whether or not the Government chooses to exclude charities from the scope of these rules in future, we also have concerns with the detail of the new system. In our view there are examples where the new guidance is not clear, and risks preventing organisations from undertaking issue-based campaigns which do not intend to support one party or candidate over another.
For instance, the guidance proposes these two questions ‘Are you campaigning on an issue that is prominent in public debate? Are you campaigning on an issue that clearly represents an area of difference between political parties? We think it is possible that an organisation may be doing both those things, but still acting in a way that is politically impartial.
The current test is whether an organisation is spending money on an activity that can ‘reasonably be regarded as intended to promote or procure electoral success’ for a party or candidate. It would seem fairer to apply a test of the organisation’s actual intention, because the ‘reasonably regarded’ test could capture bodies who acted in good faith, but whose actions had unintended consequences.
It does seem to us that the Lobbying Act has had a chilling effect on the charity sector. Although some of the tests that apply in the new system are not that different from those in the previous one, the introduction of the Act and the expansion of what constitutes ‘campaign activity’ has created some problems for charities.
For a charity, the process of considering whether or not to register with the Electoral Commission, assessing whether planned activity may or not fall under the scope of the Act, making recommendations and taking these through governance processes is an onerous one. Karl Wilding of NCVO’s blog on their process helps to illustrate this.
One of the great strengths of charity campaigning is working in partnership. In addition to the rules that apply on coalition spending, generally speaking the fact that different organisations have different governance arrangements, sign off processes and define levels of acceptable risk differently with regards to the Lobbying Act seems to have added a further potential barrier to partnership working.
We have fed our views into Lord Hodgson’s Review, and look forward to seeing his conclusions.