By Joshua Bird (Editor-in-Chief)
Various campaign scandals have plagued Westminster over the last decade. Ostensibly to avoid a political landscape akin to the US, where special interests are unduly influential, the Conservative-led coalition government passed the controversial Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014, or the Lobbying Act, in January 2014.
Founded on the basis of ‘transparency’ the Lobbying Act significantly amended campaign law in the UK by establishing a register of lobbyists, and imposing new spending thresholds and lobbying regulations for what they deem ‘non-party campaigners.’
After nearly two years since its passage, the Lobbying Act remains as controversial as ever. The main criticisms from civil society are that it does not capture the majority of lobbying activity, and it hampers legitimate democratic activity.
As the Lobbying Act has been in effect for an election cycle, it is time to assess its efficacy. The legally mandated review by Lord Hodgson is currently underway, and the Civil Society Commission chaired by Lord Harries recently released its fourth report entitled Non-Party Campaigning Ahead of Elections, where they ultimately recommended that the Lobbying Act be repealed.
While the report addressed non-party campaigning in devolved nations, there have been no studies to date evaluating the Lobbying Act from a purely Scottish perspective. Because its provisions will apply to the upcoming Scottish Parliamentary Election, understanding this perspective is crucial.
With support from the Scottish Council for Voluntary Organisations (SCVO), I conducted a qualitative study of Scottish third sector intermediary bodies and organisations in the months following UK General Election in May 2015 to determine how the Lobbying Act had (if at all) impacted the sector.
The results were striking.
First, while the negative rhetoric around the legislation may be overstated, the Lobbying Act has materially impacted charitable organisations in Scotland. Study participants said the Act has created a significant amount of extra work because they feel they now must be “careful” when developing campaign strategies. Other organisations reported the need to be constantly “checking” the guidance to ensure that they did not contravene the Act, and they described the Act as “burdensome” and “problematic”.
Under the Act, non-party campaigners must register with the Electoral Commission (the independent regulator of lobbying activity) if they plan to spend money on ‘regulated campaign activity.’ This process was also cited as an issue because it requires continuously monitoring and reporting activities during regulated periods. Not registering, however, confers additional obligations to ensure that organisations are not carrying out regulated campaign activity. Only one participant in this research reported plans to register as a non-party campaigner, although nearly all had had internal meetings about doing so. Many stated they would not be registering because they felt they did not need to, or because registering would make them look political to their service base or donors, which may create additional problems.
Overall, these additional steps have been very resource-intensive; they have forced charities to seek external legal advice, hold training sessions, and issue extra information briefs, all of which divert resources away from legitimate lobbying. Further, they have resulted in some charities having to redesign their campaign strategies, which is a time-consuming process
This research also showed that the perceptions of the Act’s regulations, that is, what organisations think the provisions of the Act mean for them, were at least as important as the actual impacts. This was due to confusion regarding the Lobbying Act and its guidance, especially the purpose test.
Participants reported working constantly to ensure that their campaign activities are non-partisan and consistent with Office of the Scottish Charity Regulator’s regulations, and many used phrases like “policy-driven” and “issue-based” to describe their lobbying behaviour. However, several small- and mid-sized charities stated that they did not have the capacity or staff to understand the Lobbying Act or the guidance, and were afraid that they might unintentionally breach certain regulations. Many specifically expressed uncertainty about how to interpret the purpose test, and what meeting it would entail. This doubt may cause them to, for example, scale back campaign efforts.
The negative perceptions may be exacerbated by the disorganised nature of the third sector. One intermediary mentioned that they felt an overall lack of awareness among member organisations regarding what the Act actually meant. Another study participant echoed this sentiment, stating that charities only start paying attention to legislation when it begins affecting them.
In addition to being unclear, Lobbying Act guidance has not been satisfactorily disseminated. Most participants had not received guidance, with one reporting they were not aware that guidance existed at all. Interestingly, intermediaries (whether intentionally or not) attempted to bridge the knowledge gaps, either with their own documents or the EC’s. While using intermediaries as information conduits between the government and third sector is promising, it may be problematic because the guidance they produce would effectively be an interpretation of an interpretation of the law. Moreover, this research showed that the scope and remit of intermediaries varies widely, which may undermine their reliability and effectiveness.
Study participants cited coalition work as a major part of day-to-day work, but the Lobbying Act’s new spending thresholds (see page 5) may negatively impact the third sector’s willingness to collaborate. This is especially problematic for smaller organisations that rely on larger ones to amplify their voices; while their campaign spending may be comparatively small, they meet the spending limits much quicker by working in coalitions. Participants said they had been discouraged or limited in their efforts to build coalitions, which has resulted in them involving themselves only in core issues rather than everything they would have otherwise done otherwise.
Finally, the Lobbying Act has produced benefits because the additional steps necessary for compliance have made organisations more aware of internal and external activities. Some participants said the Act caused them to more closely evaluate their external communications, while others reported that the additional bureaucratization increased overall awareness of what their employees are doing. Despite these benefits, the subjects in this research almost universally condemned the law.
It is clear that the Lobbying Act is producing negative outcomes for the Scottish third sector, especially smaller organisations. However, the Conservative election victory almost certainly means the Act is here to stay. With that in mind, civil society must take a pragmatic approach that enables it to lobby and campaign effectively whilst remaining lawful. In the meantime, the Scottish Government must take an evidence-based approach in drafting its forthcoming lobbying bill to ensure that Westminster’s mistakes are not replicated in Scotland. This will ensure that third sector organisations continue to play a vital role in Scottish political and policy processes.