Campaign groups under ‘permanent threat’ from Lobbying Act
Greenpeace has warned that the Electoral Commission has turned the controversial Lobbying Act into a ‘permanent threat’ to civil society campaigning by failing to consider the special circumstances of a snap election in its guidance.
The warning comes after the Commission sent the environmental group an extraordinary letter threatening to shut down Greenpeace’s campaign activities.
The Lobbying Act, dubbed the ‘charity-gagging law’ when first introduced in 2014, was widely criticised for having a ‘chilling effect’ on civil society at the last general election because of its lack of clarity and overwhelming bureaucracy. A government-commissioned review called for it to be reformed, but no action has been taken.
The Act imposes restrictions on the amount of money charities and campaign groups can spend on loosely defined political activities in the lead-up to an election. But in an extraordinary letter to Greenpeace, the Commission now states that the regulated period when the spending limit applies kicked in as far back as June 9th last year – a whole ten months before a snap election was called.
Greenpeace is warning that the effect of the letter could be to put any sizeable campaign group in breach of the law if they campaigned in the past 12 months on issues that were relevant to the political debate.
The Commission has declared the start of the regulated period to be June 2016 despite the fact that the snap election was called out of the blue in mid-April. The announcement came after numerous reassurances from the Prime Minister herself that no vote would be held until 2020 in line with the Fixed Term Parliament Act, which the Conservative manifesto has now pledged to scrap.
The commission’s letter goes as far as threatening to shut down Greenpeace’s campaign activities unless the group complies with the legislation retrospectively – by registering under the Act and not spending more than a set amount on political campaigning since June 2016.
Greenpeace has responded with a letter before action, threatening to take the matter to the High Court unless the Commission reconsiders its position on what can count as regulated expenditure during the period before the snap election.
“The Commission implies that since a snap election can be called at any time, there is now no fixed start or end date to the regulated period. It’s as if the Lobbying Act and its spending cap were now permanently in force, every day of every year.” says Greenpeace UK’s executive director John Sauven.
He adds: “This absurd interpretation is bound to have a significant impact on civil society as it multiplies the uncertainty and confusion already created by the Lobbying Act. If you are a fairly large campaign group or a smaller charity working in a big coalition, you’re now under permanent threat of being fined and potentially even convicted for your normal campaign activities. All it takes is for a snap election to be called and a campaign like Make Poverty History could be in breach of the law. There’s a real risk many charities will pull out of the political debate for fear of being caught up in this bureaucratic and legal quagmire.”
Under the Lobbying Act, charities are obliged to register with the election watchdog if they plan to spend over £20,000 in England – £10,000 in the rest of the UK – on so-called ‘regulated activities’. These activities are so loosely defined that they can include any issue on which political parties have a policy on. 
Charities working in large coalitions are particularly vulnerable since the law imposes a collective spending limit – of £390,000 – towards which expenses from every member organisation count. Some campaign groups who have worked in coalition to raise important issues over the last year could easily be in breach of the Lobbying Act since staff costs, overheads and any other operational expenditure may be taken into account.
The Electoral Commission recently fined Greenpeace £30,000 for refusing to register under the Lobbying Act at the last general election in an act of civil disobedience.
Ministers had been warned about the potential consequences of the Lobbying Act by the government’s own review led by Lord Hodgson. The Conservative peer criticised the Act for failing to distinguish between activities in support of a specific political party and civil society campaigning on issues of public interest. He also called for the regulated period to be shortened from one year to four months, and presciently urged the government to clarify ‘the regulatory position in the event of an “unexpected” General Election’.
“The government’s own review warned about these risks, yet ministers ignored them,” Sauven added. “If neither the commission nor the government are willing to sort out this mess, our only option left is to put the matter in front of a judge. We’re not going to stand idly by as Britain’s vibrant civil society is cowed into silence by this bureaucratic and legal nightmare.”
1. Regulated activities are regarded “as intended to influence voters to vote for or against political parties or categories of candidates, including political parties or categories of candidates who support or do not support particular policies or issues”. The Electoral Commission guidance also explains that: “Campaign activity can meet the purpose test even if it does not name a particular party or candidate. For example, campaigning for a policy that is closely and publicly associated with one or more political parties can meet the purpose test. Even if you intend your campaign activity to achieve something else, such as raising awareness of an issue, it can still meet the purpose test if it can also reasonably be regarded as intended to influence how people vote.”