Find the original article here, in Civil Society magazine.
How do you reduce 120 campaigners to a state of disbelief? Judging by the number of open-mouthed stares at a public meeting on the Lobbying Act with the Electoral Commission on Tuesday, curbing their right to campaign is a good way to start.
Charities and campaigners have debated for months exactly how bad the Lobbying Act will be when it bites on 19 September, the day after the Scotland referendum. But now we have the Electoral Commission’s full guidance it is clear that the Act’s effects really will be as we expected: very bad.
First off is the sheer length of the guidance. 292 pages (I have counted) takes a long time to read and digest, specially when any mistaken interpretation might just land you or your board in trouble.
We are told by lawyers that the guidance is inconsistent at times. Following the barrage of questions asked directly to the Commission yesterday it seems that no-one is really clear what the answers should be.
The ‘purpose test’ which decides whether the Act applies to a non-party campaign should in principle be very simple. If your campaign is intended as a proxy campaign to encourage people to vote (or not to vote) for a party or candidate, then it should be regulated. And if not, it shouldn’t be affected. But digging in to the depths of the law and the guidance, things are far from being so simple.
Then we have the question of the ‘committed supporter’. The Act only sets out to regulate campaigns that are directed towards members of the public. But what then do we make of the many organisations who sign lots of people up to private mailing lists without asking for any money from them? The Commission’s workaround is to invent a new category – the ‘committed supporter’ – and say that emails or messages to them won’t count. But I can immediately think of several ACEVO members whose innovative means of communicating with their supporters don’t clearly fall on one side or another of that definition.
Many other ambiguities exist that there isn’t space to list here. But the general upshot is that the guidance isn’t clear and there’s no sign of it becoming clear in time for campaigners to plan their work before the election.
So what to do?
We have seven and a half months from 19 September to 7 May in which to operate under the Act’s constraints. In fairness to the Electoral Commission we know they were given a terrible law to enforce. During the Act’s progress through Parliament they briefed fairly consistently that they didn’t think parts of the Act could really be implemented. They are happy to help and will always be on the end of a phone call or an email if you or your organisations are in any doubt about your campaigning. Yet that doesn’t excuse the ambiguities of this sprawling morass of guidance.
Our best approach as campaigners is very probably to continue exactly as we had always planned to do. By all means staying mindful of the Act and its big-picture implications, making sure that our campaigning is clearly related to our charitable or campaigning objectives. But we must not fall prey to its ‘chilling effect’.
More fundamentally than this, it is high time that this debate was shifted into more positive terms. The focus in the last few months has been on the negative picture for charities and campaigners doing their good work in tough times. We have rightly spoken out about the Lobbying Act, about gagging clauses, about the causes of poverty and against the Charity Commission’s increasingly loud rhetoric about political campaigning and about Muslim charities.
The election is a golden opportunity to show to the country how our sector can work as a force for good. We mustn’t feel deterred from speaking out and we mustn’t feel afraid of demanding new safeguards from politicians to protect our free speech in the long term.
If, on the day that new MPs are sworn in after the 2015 election, a few more of them have a positive attitude towards civil society being ‘political’, then that we will know that our campaigning has been worthwhile. I would call that progress.