Charities may face criminal sanctions as ‘gagging law’ backdated before election | Environment


UK charities face a permanent “chilling effect” on their campaigns after the Electoral Commission said they must declare any work that could be deemed political over the past 12 months to ensure they are not in breach of the Lobbying Act.

At least one charity has been warned that if it does not, it may face “civil or criminal sanctions”.

The legislation, dubbed the “gagging law” by charities when it was introduced in 2014, regulates the amount of money organisations can spend on campaigns deemed to be political in the run up to an election.

Under fixed term parliament rules it was envisaged that organisations would know when the period of regulated spending came into force ahead of a general election.

But following Theresa May’s snap election announcement last month the Electoral Commission has announced that the regulated period came into force retrospectively – and started in June last year.

Greenpeace UK’s executive director John Sauven said the decision would have a huge impact on charities’ activities.

“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.”

The Electoral Commission has threatened to close down Greenpeace’s campaigning activity if it fails to comply with the act in the run up to this year’s election.

Last month the environmental group became one of the first organisations to be fined under the act, incurring a £30,000 fine for refusing to register as a “third-party campaigning organisation” in the run-up to the 2015 election.

Sauven added: “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 coalition, you’re 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.”

The Electoral Commission has written to Greenpeace stating that if it fails to register all its spending during the period to June last year it “may be subject to civil or criminal sanction”.

It adds: “We will be monitoring the election campaign and exercising our regulatory functions, and if appropriate our enforcement powers, to ensure it is conducted in line with the PPERA [Political Parties, Elections and Referendums Act] rules … this includes the power to issue a stop notice.”

Tamsyn Barton, chief executive of Bond, an umbrella group representing 450 development charities, said there was growing concern across the sector.

“People are extremely anxious about this. There is the administrative burden of having to go through all the work you have done over the past year to see what might be deemed “regulated” and how much that might have cost.

“Then there is the fact that organisations may have fallen foul of the law going about their legitimate business. Smaller charities particularly are very reluctant to take that risk and it inevitably risks a permanent chilling effect on their activities.”

Sophie Neuburg, a campaigner for environmental charity Friends of the Earth, said: “Huge amounts of staff time is being diverted into making sure our work complies with the Lobbying Act. We’re being forced to spend our donors’ money on needless bureaucracy. Smaller charities simply don’t have the resources to do this and are therefore too scared to campaign before the election – their voices will simply be lost.”

The Conservative government led by David Cameron passed the act as a result of high-profile corporate lobbying scandals. It amended existing rules on non-party organisations introduced in 2000 requiring groups to register with the Electoral Commission if they plan to spend more than £20,000 in England or £10,000 in the rest of the UK on so-called “regulated activities”. Critics say the government’s definition of these activities is so broad it can include any activity that could be interpreted as political.

The act was condemned by a coalition of 160 charities – including the Royal British Legion, Save the Children, and the Salvation Army – as well as a cross-party coalition of politicians when it was introduced.

A government-commissioned review led by the Tory peer Lord Hodgson made several recommendations, including a call to distinguish between activities in support of a political party and civil society groups campaigning on matters of public interest. He also recommended tightening the definition of what constitutes a member of a lobbying group.

Greenpeace has sent the Electoral Commission a letter before action, threatening to take the matter to the High Court unless it reconsiders its position on what can count as regulated expenditure during the period before the snap election.

Sauven added. “The government’s own review warned about these risks, yet ministers ignored them. 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.”

A spokesman for the Electoral Commisison said: “Any individual or organisation is entitled to campaign at the general election. Rules are in place which mean that non-party campaigners that intend to spend above a certain amount must register with the Commission if their campaigning activities could be reasonably regarded as intended to influence people to vote for or against political parties or any particular category of candidates. We have written to a range of organisations and individuals to remind them of the law.”

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