Monday, October 07, 2013

Gagging Bill Update

I had a tremendous volume of comments from constituents on the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill, which is currently going through parliament and reaches the report stage this week. On Saturday, I had a meeting with John Hemming MP, who has so far supported the Bill. 



The campaign group 38 Degrees has been organising a number of public meetings with MPs to express this broad concern. Unlike his LibDem colleague Julian Huppert, who has agreed to attend a public meeting in Cambridge, Hemming declined to attend a meeting planned for later this month and instead organised his own meeting last Saturday. Conveniently, he didn't confirm the location or time until lunchtime on Friday and also then decided to close attendance to those who had already expressed an interest. A contact made me aware of the meeting and I went along - I'm a constituent myself and as an elected representative, I have to raise the views of my constituents. 

UPDATED - John hasn't refused to attend a future meeting. 

When I arrived, a member of John's staff recognised me, asked me to take a seat and we started with two other constituents present, although three more turned up during the assigned hour. As John had originally limited attendance to 17, my presence did not deprive anyone of a seat and the other attendees were happy for me to stay. We had what I thought was a reasonable and good-humoured discussion of the issues around the bill, largely focussing on section two, which deals with the impact on charities. John has agreed to take back a request to increase the registration level back to £10,000, but he's not looking at increasing spending limits and/or asking that the range of activities be reduced or more clearly drawn. Sadly, he was very dismissive of the value of the legal opinions obtained on the bill - from a specialist solicitor and a QC, although John's own performance in the legal system is rather chequered

That hasn't stopped John spending a surprising amount of time calling me a gatecrasher and accusing me of preventing others from talking to their MP. I've Storifyed the twitter exchange. Really, this is a classic case of the standard LibDem technique of playing the man not the ball. All the more peculiar in that he has written that it is a "basic freedom of speech is to be able to speak to your MP about a subject" and he was happy to use parliamentary privilege to bust a super-injunction. Indeed, he even managed to get some publicity shortly after he was first elected about defending freedom of speech. All the more peculiar that he would be so happy to support this repressive measure.  

Why are the LibDems so eager to support the bill? The photograph illustrates why. They are running scared of students seeking vengeance and the trade unions. As Unlock Democracy's Alexandra Runwick put it
"It is explicitly partisan and is now being rushed through Parliament with very little scrutiny. Huge uncertainty is being created both for the voluntary sector and for the Electoral Commission. As its stands the proposals will have a chilling effect on campaigning
The Bill requires the registration of consultant lobbyists, but not in-house lobbyists - it exempts 80% of the lobbying business and ignores 90% of what lobbying firms do on a regular basis. Ministers and senior civil servants currently release records of meetings with lobbyists from particular firms, but we don't know who the consultants work for. The bill should at least put this right, but along the way it also introduces controls over other third parties and increases regulation of trade unions. The genius is that it won't stop those with power gaining privileged access, it won't stop Lynton Crosby being in a position with the capacity to influence government policy, but it is likely to prevent charities and campaigning groups from carrying out their role. This government, true to form, has failed to stand up to power. 

Labour's shadow leader of the Commons, Angela Eagle, has said that 
"we are clear that this is no way near enough. Labour remains concerned about a wide range of the Bill's proposals which would have a chilling effect on the quality of the national debate. The Government is using this legislation to try to insulate themselves against legitimate criticism in the run up to an election"
It regulates a tiny part of lobbying activity, but could gag charities, trade unions, residents' groups and even bloggers by imposing spending limits on campaigning in the year PRIOR to a regulated election. A regulated election would certainly be a general election, but could include elections to the devolved assemblies, the European Parliament or even local authorities, if parliament so decrees. Even considering general elections, although the date for the 2015 election is set, there is still a possibility that the government could collapse - this means that it is impossible to know exactly when that year actually begins. All charity expenditure would have to be considered as to whether it might be considered to fall within the law.

Imagine a campaign to save a local hospital that would naturally seek the support of local representatives or candidates. Publishing a photograph of the candidate standing beside a banner supporting the hospital would be bound to bring their activities into the regulated sphere, if it were to fall within the regulated period (and you can't know when that period will actually be). 

John Hemming thinks that charities will be unaffected by this. 



True, but that misses the point completely. At no point has anyone said that charities should be involved in party politics. They are involved in campaigns to further their charitable interests - think of Shelter, the RSPCA or the NSPCC. Along with many others, they have a considerable voice in policy discussions and rightly so. 

The National Council for Voluntary Organisations sought counsel's opinion from Helen Mountfield QC of Matrix Chambers.
An organisation will not be charitable if its purposes are political (in the sense of advocating a particular party or change in the law). However, as the Charity Commission guidance CC9 explains, provided it guards its independence from political parties, a charity can undertake political campaigning or political activity in the context of supporting delivery of its charitable purposes. This can include campaigns for changes to law or policy where such change would support the charity's purposes. Although such campaigning cannot be the continuing and sole activity of the charity, it can be the only or main activity for a period of time, provided it always remains in pursuit of the charitable purposes.
The opinion also raises several cases where the barrister considers that routine campaigning activity could fall into the regulated sector and pointed out that the range of activities regulated is so broad, that charities could even end up having to include the cost of time given by volunteers in their returns, as well as more routine communications with their supporters. 

The way the bill is written, it creates vast areas of uncertainty and risk and if there is one thing that trustees and managers of charities don't like, it is risk. It is far more likely that these groups will withdraw from public engagement than risk being caught out. Remember that they can't know for sure when the regulated period will begin, so will have to assume that any potentially relevant campaigning spend is appropriately monitored. I spoke only this afternoon to somebody who works with small campaigning group and this was precisely the concern that they raised - the trustees and management would withdraw from anything connected to public policy if it brought them into this regulated environment. 

Ed Miliband asked the government to think again and Labour MPs voted against the Bill when it last came before the House. Sadly, the only two MPs in Birmingham who supported the bill and opposed Labour's amendments were Tory Andrew Mitchell in Sutton Coldfield and Tory Liberal Democrat John Hemming in Yardley. 


There is an unprecedented alliance of opposition to this bill. The Taxpayers Alliance called it "a serious threat to independent politics that will stifle free and open democratic debate." Greenpeace have described it as "the most pernicious assault on campaign groups in living memory." The British Medical Association raise concerns over freedom of expression and say that it would be "very regressive if organisations were unable to speak out about poor care in the run-up to an election." Grassroots bloggers at LabourList, ConservativeHome and LibDem Voice have criticised it and there's even been an unholy alliance of Guido Fawkes and Owen Jones in opposition. Nothing this government has done has raised this level of anger from across the entire range of the political spectrum. Even the Electoral Commission have raised concerns - they weren't consulted on their role and are worried about whether they can even enforce the law, as well as the legal challenges that they consider inevitable when action is taken. 

Given the level of concern, Andrew Lansley has agreed to amend the bill and those proposals were published on Thursday. They haven't met with universal support, however. 

The Association of Chief Executives of Voluntary Organisations were quick off the mark.
"The government is clearly keen to show it is listening to civil society, but these amendments don't prevent the Bill curbing freedom of speech around elections. The Bill greatly increases bureaucracy for civil society groups in the year before an election, by halving the spending thresholds above which organisations have to register with the Electoral Commission. It also drastically restricts civil society's spending on public campaigns in election years. The public wants legislation that makes politics and corporate lobbying more transparent. Instead this Bill makes almost no change to lobbying rules while punishing civil society for a loss of trust in politics that is not its fault."
The Chief Executive of the NCVO added
“the proposed amendments put forward by the government will mean that much campaigning activity by charities and other voluntary groups will still be covered by this excessively bureaucratic and burdensome regime. The amendments leave a great deal of uncertainty and ambiguity. In short, many organisations including small community groups, will be required to consult the Electoral Commission before undertaking campaigning activity in an election period in order to ensure they are not falling foul of the new regulations.”
We have an unholy alliance, now we have the complete opposite, as thirteen religious groups let rip, including the Salvation Army, the Methodists, Islamic Relief, CAFOD, Reform Rabbis, the Church of Scotland, the Muslim Council of Britain, Christian Aid and the Quakers. 
"Following legal advice and a statement from the Electoral Commission, we remain concerned that despite the Government’s proposed amendments we still do not have the necessary legal certainty that Part II of this Bill could not be applied to a wide range of legitimate campaigns, despite such activities being intended to be party politically neutral. We are concerned that this Bill does not adequately safeguard the activities of religious organisations and that there is a very real risk that non-biased political activity will be captured by the resultant Act."
38 Degrees have an initial legal opinion from a solicitor, Ros Baston, who has specialised in election law. She notes that
"the changes do not assist the clarity of the proposed regulation, results in new uncertainties and do not address concerns of grassroots or charitable organisations without formal paid subscribers that communication with their own supporters will be covered."
Speaking to the Independent, she added
"It appears that the Government has been taken aback by the level of opposition and has spent the past few weeks on a headless chicken run. Unsurprisingly, this has resulted in amendments that mystify more than they enlighten."
Even the lobbyists aren't happy. 
Iain Anderson, the director of the Cicero lobbying group and chair of the Chartered Institute of Public Relations, said: "The amendments have not changed the scope of the Bill's impact on the lobbying industry. It shows that they [ministers] are not listening. There has been no change to the definition of those who lobby, and who they lobby. Rational arguments and Parliament's wider concerns are being ignored."

1 comment:

John Hemming said...

I did not refuse to attend the meeting on 26th. No-one has given a time or location, however. I simply said it would be best to have a meeting beforehand.

We disagree on the effect of the legislation. I don't think it will stop charities. You do.

I note you have selectively storified the twitter exchange.