Campaigning during elections

This is an overview on campaigning and the Lobbying Act.

Organisations which campaign and call for political change could potentially be covered by the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014. It is generally known as the Lobbying Act, although many campaigners raising concerns in 2013 (when it was a Bill) referred to it as “the gagging law”.

To be clear: I am NOT a lawyer, and this information is NOT legal advice. My experience is in the actual work required to comply (or not) with the Lobbying Act. I did the electoral compliance for Quakers in Britain for the 2015 and 2017 elections. I also used to work for the Electoral Commission (I drew local government boundaries, back when that was part of the EC), so I have a very good idea of what they would consider to be a sound rationale.

The Electoral Commission guidance is on their website. If you are running joint campaigns, you may find my additional information on joint campaigns useful.

What the Lobbying Act does

During elections, political parties are required to follow rules about the amount of money they can spend contesting the election. The Lobbying Act is ostensibly designed to prevent a political party from running up against their spending limit, setting up a supposedly separate group, and getting that group to campaign for them. Unfortunately, the Lobbying Act does not appear to fulfil this purpose, but does create a serious issue for genuinely independent organisations and individuals campaigning for political change.

The risk is that any organisation or individual could be perceived as being covered by the Lobbying Act. They would be required to register with the regulator, the Electoral Commission, if they spent more than about £25,000 across the UK on campaigns which were perceived as trying to influence how the public voted. The Lobbying Act is a badly written piece of legislation which runs the risk of trapping people it was not supposedly set up to restrict.

What you need to know

The key information that any individual or organisation needs to know is:

  • The regulated period is the entire year before a general election, and is retrospective.
  • Each piece of work is measured against two tests, the public test (ie, is this just for your own supporters or is it for the general public, and everything which is available on a public website is deemed “public”) and the purposes test (would a reasonable person think you are trying to get them to vote for a specific candidate).
  • You need to register as a non-party campaigner if you spend more than £20,000 in England, £10,000 each in Northern Ireland, Scotland and Wales (which, due to the fact that it is measured by constituencies and England has so many, actually means only about £25,000 across the UK).
  • You have broken the law if you spend more than about £400,000 across the UK.
  • The Lobbying Act breaks activities down into marketing, rallies and events, staff time, media, election material, and overheads.

In email correspondence with the Electoral Commission in spring 2019 I received these guidelines to the purposes test, quoted word-for-word below as five key points:

  • Call to action to voters – is your campaign encouraging people to vote in a particular way at an election?
  • Tone – is it positive or negative about a political party or category of candidates?
  • Context – are you campaigning on an issue that will make a voter think of a particular party or category of candidates?
  • Timing – are you campaigning close to the date of an election?
  • How a reasonable person would see your activity – would they think your campaign is intended to influence voting choices?

The correspondence I received went on to say (I paraphrase slightly): “Not all campaigning about political issues in the regulated period will meet the purpose test and be regulated. This is because a campaign can be on a political issue but not been about elections or voting. Political campaigns could, for example, be reasonably regarded as intended to influence government or Parliament and not voters.”

The reputational risk of being investigated by the Electoral Commission shouldn’t be ignored. The Electoral Commission is a small organisation which focuses on political parties, and as a result does not have a good sense of how grassroots campaigns work or any real understanding of non-centralised organisational structures. It would be very easy for there to be misunderstandings potentially leading to bad press or even to fines.

Deciding whether you are covered by the Lobbying Act

Do your activities fall under the remit of the Lobbying Act? There are three different factors in working out how to approach the Lobbying Act – whether you really are covered by the Lobbying Act, whether the public/media perception is that you are covered, and whether the regulator assumes that you should be covered. If you’re not covered, no one else thinks you’re covered, and the regulator assumes you’re not covered, everything is fine. However, if the regulator assumes that your activities do fall under the Lobbying Act but you think they don’t, you do need to communicate clearly your reasons for NOT registering.

Essentially, the Lobbying Act is measuring the cost of activities. This does include donations in kind, meaning that if you were given a large meeting space for free or below the market rate, that goes on your spreadsheet as something you “spent”. If you hold a big event, then being leant audiovisual equipment and staging would certainly count at the market rate. The Electoral Commission have previously said that celebrity guests giving a free appearance counted at their usual market rate. This means that holding a free and open concert at a rally/event would certainly count under the Lobbying Act.

(For protest groups – if we talk about direct action, then I don’t know whether the cost of occupying a space would count in the same way. It could raise some interesting questions about what a donation in kind was and potentially about the political neutrality of the police if by allowing protesters to stay on a site longer than strictly necessary they had inadvertently supported a campaign which a reasonable person could not distinguish from party politics.)

Communicating your decision on whether to register

Many large charities or campaigning organisations have a “not registering” message ready for the Electoral Commission. If they do not have one, they should.

The message should generally run along the following lines:

“We have carefully considered the campaigning work that we have undertaken during the regulated period of xxx to xxxx. [For general elections this is a year, for European Parliament elections this is four months.] We have considered the two tests outlined in the Lobbying Act.

“A significant proportion of our work is with committed supporters. We send emails only to those who have confirmed that they support our declaration and wish to be part of our network of supporters. While some social media content is public, our groups require similar confirmation of support. Because we ask individuals to become part of our organisation before providing them with leaflets, we judge that around x% of our printed material costs and x% of something else costs could be considered to fall under the remit of the Lobbying Act.

“We have also considered whether our campaign passes the purposes test, and specifically whether a reasonable person would assume that we were calling for the general public to vote a specific way due to a specific policy. While we share some broad policies and aims with some political parties, there is considerable disagreement about the measures needed to achieve these. Furthermore, our campaigns clearly ask for elected representatives to change their minds, not for members of the public to change their elected representatives.

“Having considered activities we have undertaken during this regulated period, including rallies, printed material, overheads and staff time, we consider that only a very small part of these activities falls under the remit of the Lobbying Act. The combined cost of these activities is well below the registration threshold of £20,000 in England, £10,000 each in Northern Ireland, Scotland and Wales. We have therefore not registered with the Electoral Commission as a non-party campaigner.”

In addition to this message, most large NGOs should have either/both a calculation showing how they arrived at this conclusion, or a serious-looking letter from a lawyer saying that the campaign doesn’t fall under the Lobbying Act. The lawyer’s letter is both expensive and (in my personal opinion) little more than a confidence trick. However, it may be worth having that confidence trick. If you are interested in approaching lawyers, I recommend Bates Wells Braithwaite. Lawyers wouldn’t be able to advise on the nuts and bolts of exactly how to comply with the Lobbying Act, only on whether a specific campaign falls under it or not.

I would personally recommend that smaller campaigning groups also write a message similar to the one above, and do a calculation showing how you arrived at this conclusion. The ideal way to produce these papers is to have them as part of a board/trustees briefing.

If you think you do need to register, then you may need to have a message ready for your supporters/members. This may be an easier task, as you know the words which are likely to speak to them. You would be explaining that you are complying with the Lobbying Act and that this does not mean than you are a political party. It is possible to say that you are complying in order to show how ridiculous the legislation is, and to continue to lobby government to change it.

Consequences of registering

The immediate consequence of registering with the Electoral Commission as a non-party campaigner is paperwork. It is a fiddly process and involves a large number of spreadsheets. I have undertaken this process twice for Quakers in Britain, and have then met both the Cabinet Office and the Electoral Commission itself to explain what the process of collecting the relevant data actually meant.

The Electoral Commission has the power to fine organisations and individuals, and has done so. Greenpeace was fined £30,000 for NOT registering and Friends of the Earth was fined £1,000 for registering late.

If you work out that you have theoretically “spent” more than about £400,000 on activities which fall under the remit of the Lobbying Act then you have broken the law. This is as yet untested legislation.

Finally…

In my personal view, the Lobbying Act is a pernicious and illogical piece of legislation. It is a generally accepted rule that legislation should not be retrospective, yet the Lobbying Act is retrospective. Regulation is undertaken by the Electoral Commission, who are understaffed and have little understanding of how either traditional NGOs or grassroots organisations operate. In my opinion, this lack of understanding makes it more likely rather than less likely that the Electoral Commission would challenge a grassroots direct action organisation.

This blog post is entirely my own opinion, and is not legal advice in any shape or form. I’m happy to answer questions. If you have a specific query, contact me at howtodissent@gmail.com.

Update of 27 Sept: when the new guidance came out on 23 September, there was a slight change from the previous guidance in how the amounts are calculated. Previously all five categories were subject to both tests, but now staff time and overheads are not required to meet the public test – essentially giving them a rating of 100%. I have added a short section in the step by step guide (below) explaining how I think you should deal with that in the calculations.

Templates to download and use: 

The Electoral Commission guidance is on their website. If you are running joint campaigns, you may find my additional information on joint campaigns useful.

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