Friday, 13 December 2013

"The Gagging Bill"

A lot of talk recently about "The Gagging Bill", but BFTF has had to look pretty hard to find out exactly what all the fuss is about.

Fortunately, the Civil Society Commission has been set up to provide an insight into the legislation (formally known as "Part 2 of the Transparency in Lobbying, Non-Party Campaigning, and Trade Union Administration Bill") and its likely effects on the charitable and campaigning sector. The commission has been set up with the support of of over 50 prominent charities, campaign groups, community groups, academics, think tanks and online networks - and has produced a number of reports, under severe time pressure.

First Commission Report (Oct 13)
Second Commission Report (Dec 13) and recommendations
Testimonies
Examples of how the work of charities could be affected
Latest Update

First Commission Report (Oct 13)
The first report sets the scene by saying:
" It is hard to think of another issue that could unite the Countryside Alliance to the Lancashire Badger Trust, the Christian Institute to the National Secular Society, but such is the concern about Part 2 of the Lobbying Bill a remarkable unanimity has been achieved.

It is a mark of bad governance for legislation to be bounced on Parliament and those directly affected without any consultation. When matters of democracy are at stake it is a very grave error. There is no doubt, from the evidence that this Commission has gathered, that Part 2 of the Lobbying Bill risks profoundly undermining the very fabric of our democracy by significantly limiting the right of organisations – from charities and community groups to think tanks and blog sites – to speak out on some of the most important issues facing this country and the planet. Whether we agree with these organisations or not, their role is essential in order to have an informed, engaged electorate."

The Commission recognises that appropriate legislation of non-party campaigning is needed to prevent influence being gained through excessive spending or through political parties pretending to be NGO's.

The Charity Commission guidance for charities on how they should work during lections is admirably clear and states:
“A charity’s policy position on a particular issue may coincide with, or be more or less similar to, that of one of the political parties. In this case it is entirely acceptable for the charity to continue to campaign on that issue and to advocate its policy as long as it makes clear its independence from any political party advocating the same policy and does nothing to encourage support for any political party”

Clauses in the relevant current (PPERA) legislation place additional constrains on the activities of charities, but allowed enough latitude for most groups to campaign without any fundamental problem emerging

The provisions in the proposed (Part 2 of the Transparency in Lobbying, Non-Party Campaigning, and Trade Union Administration Bill) legislation significantly extend these restrictions, making it difficult for civil society to have an effective voice in the lead up to an election. As the commission says :
"The consequence of these sub-clauses is that almost anything a charity or campaigning group does in relation to advocating policies in the year before an election can be considered from the point of view of its effect on the possible success or failure of particular parties or candidates. The result is a fundamental uncertainty, which can inhibit charities from campaigning for fear of breaking the law."

Second Commission Report (Dec 13) and recommendations
The Second Report makes a series of recommendation after some consulation with NGO groups. The very tight timetable imposed on the process meant that this consultation was not as complete as it could have been. Nevertheless, the commission was able to state a number of recommendations, starting with this key overall recommendation:
"The PPERA[existing] definition, as amended by the Lobbying Bill, should be used for the 2015 General Election; but this recommendation is entirely contingent on the Lobbying Bill being amended to implement this report’s other recommendations on: registration thresholds, spending limits, constituency cap, the definition of an organisation’s supporters, and the range of campaigning materials and activities subject to regulation and staff costs."

These other recommendations are shown below:
Campaigning materials and activities subject to regulation
The wider range of campaigning activities set out in Schedule 3 of the Bill should remain but be subject to two amendments to secure alignment with the regime for political parties. First, staff costs should be specifically excluded. Second, market research and canvassing should be covered only where this relates to ascertaining polling intentions.

Registration thresholds
Registration thresholds should be increased to £20,000 in England and £10,000 in Wales, Scotland and Northern Ireland

Spending limits
Spending limits for non-party campaigning organisations should be increased to reflect the 2013 value of the limits within PPERA (i.e. PPERA limits plus inflation).

Constituency limits
Remove constituency spending limits for non-party campaigning proposed in the Lobbying Bill.

Reporting Requirements
All additional reporting requirements for non-party campaigning proposed in the Lobbying Bill should be removed.
Introduce the option of a declaration by non-party campaigns that have registered that they did not spend above the threshold. See below recommendation to reduce the regulatory burden on coalition campaigning

Coalition campaigning
Where an organisation only takes part in regulated activity as part of a single coalition, it will not have to register separately with the Electoral Commission, provided that all its relevant spending does not exceed the registration threshold and is reported through either the coalition or one of the coalition partners.

Regulation of non-party campaigning in Scotland, Wales and Northern Ireland
Increase thresholds for registration in all three regions to £10,000 and exempt costs relating to translation, security and safety from regulation.

Duration of the regulatory period
Reduce the regulatory period to six months before the poll.

Supporters
Exclude communications between non-party organisations and their supporters from activities related to ‘the public’ in the list of regulated activities. The definition of supporters should include people who have given specific consent to contact from the non-party campaigner in accordance with the Data Protection Act.

Charities and non-party campaigning
Charities should not be exempted from regulation of nonparty campaigning.

Equalities and Human Rights
Exempt from regulated spending costs associated with a)Translation to any language; b)Making documents accessible to people with physical or learning disabilities.


Testimonies
The first report by the commission contains a number of testimonies from charities and campaign groups, explaining how the proposed legislation would severly affect their ability to function:
“We believe that it would be perverse to reduce the spending limits and registration threshold in light of the increased number of regulated activities.” Scope,

“Given the fact that what we do is ‘encourage our members to participate in public life’, and that most of our campaigns are on issues which are likely to be of political contention in an election, the Bill could be interpreted to limit our total expenditure to £390,000 if staffing and other costs are taken into account. As Citizens UK’s anticipated expenditure in 2014-5 is £1.5m the impact would be disastrous.” Citizens UK,

“Most non-party campaigners are not of course organised on a constituency basis. Obtaining the information necessary to identify potential cases of non-compliance at constituency level, and particularly the evidence needed to be able to sanction breaches, is likely to be so difficult that these provisions may be unenforceable in practice.”Electoral Commission

“The red tape terrifies me... when you think about how we are funded and the money that goes to fund my position, it’s not right that it would just go to be wasted on red tape.” Shelter Cymru – Wales


Examples of how the work of charities could be affected
A letter from the National Council for Voluntary Organisations describe some possible scenarios showing how prefectly reasonably activities by charities could fall foul of the proposed legislation
1) A health charity could publish a leaflet highlighting the dangers of smoking. If smoking legislation became a party political issue in an election this activity could be deemed to have the effect of supporting a party’s campaign, and be subject to regulation.

2) A local community group could campaign for or against a proposed bypass road. If local candidates subsequently express a view on the issue the campaigning activity could be deemed to assist candidates’ election campaigns. The community group would become subject to regulation, even if it had acted apolitically and had no intention to support any candidate’s campaign.

3) A children’s charity calls for a statutory inquiry via the media in response to a major abuse scandal at the same time as one of the major political parties. This could leave them open to claims that they have inadvertently benefited that party’s election campaign


Updates


13Dec13 : 38Degrees Camapign
38Degrees, God Bless Them, are running a campaign to inform the Lords of the dangers posed by the proposed legislation

16Jan14 : Government defeated in Lords on key aspect of the Bill (info, slightly edited, from 38 Degrees):
Last night the government was defeated in a crucial House of Lords vote on the gagging law. Amendment 45, by Lord Harries’centred on staff costs for charities and campaign groups. The government wanted the gagging law to place heavy restrictions on how much campaigning work staff at charities or campaigning groups could do. That could have meant, for example, limits on how many public meetings about the NHS 38 Degrees staff could help organise. Amendment 45 removed most of these restrictions on staff.

Over 160,000 people signed the last-minute petition to ask Lords to back these important changes. It helped tip the balance and people power worked. The proposed changes were backed by Lords from across the political spectrum. Lord Tyler, an influential Lib Dem peer, joined with Baroness Mallalieu (Labour) and Lord Cormack (Conservative), to support the amendment. The government were defeated by 237 votes to 194.

The campaign is working and together we’ve got the government on the back foot. But we’re not out of the woods yet. Next week, on the 21st January, the Lords will hold their final vote on changes to the law.

Oct 2014 : Update from 38 Degrees:
The Gagging Bill is now Law. An update from 38 Degrees can be found here. In addition, here are some case studies from the Civil Society Commission showing how the bill affects charities . Some amendments were made to the Bill, but it is not clear to BFTF what they were, so have asked the local Conservative Party to advise on this.

Related articles : Amendment wording, Guardian article,

22Jan14 : MPs reverse key Lords Amendments (edited, via 38Degrees):
Lords Amendment requiring Ministers’ special advisors to record their meetings with lobbyists: Rejected by MPs (311 to 258)
Lords Amendment changing how staff costs count towards total spending limits: Rejected by MPs (310 to 278)
Lords Amendment changing scope of what counts towards constituency spending limits: Rejected by MPs (314 to 274)

"It’s pretty depressing. But it’s not over. The House of Lords will now get another vote – probably next week. They have the option to refuse to back down, and force MPs to vote yet again."

Related articles and information: The Guardian, Federation of Womens Institutes, CAB, Royal British Legion

Oh, and here is an MP behaving badly...and another one.

28Jan14 : Lords fail to reinstate amendments (edited, via 38Degrees):
"I wanted to let you know straight away. I'm afraid we lost the gagging law vote in the House of Lords this evening. That's it - it's going to become law. It couldn't have been closer. On the final vote, 245 Lords voted in favour and 245 against. Unfortunately the rules mean that in the case of a tie, the government gets its way."

31Jan14 : Will Labour repleal the Gagging Law (edited, via 38Degrees):
"There's one thing we can be pretty sure will be happening right now. The Labour Party will be weighing up whether to make an official pledge to scrap the gagging law if they win the next election. They've opposed it up to this point. Now it has become law they have to decide whether to continue that opposition."

That will be Ed Miliband's choice, and he could well be deciding in the next few days. He is more likely to make scrapping the gagging law an election pledge if he hears from thousands of members of the public telling him they want him to. So please could you send him a quick email now?"

Feb 2014 : Received a email from the Shadow Leader of the House of Commons
Presuambly sent out to everyone who responded to 38Degrees request to challenge ed Milliband, the email said:

"Labour opposed the gagging bill. We voted against the bill all the way through the Commons and Lords, and we believe wholeheartedly in protecting freedom of speech, the right to campaign and fairness in elections.

If we are elected in May 2015, we will find a way to put this wrong right. We are considering exactly how we can best achieve this, so we are taking some time to talk to our MPs, campaigners, and other experts about the next steps. "

It also requested some feedback on BFTFs views on the bill, so BFTF wrote this:

On any issue that has the government (of any colour) on one side and 38 Degrees, the Countryside Alliance, Shelter, CitizensUK, the Christian Institute and the National Secular Society on the other - I am going to favour the NGOs. And it is an outrage that the government is seeking to prevent NGOs speaking out before an election - AT THE TIME I MOST WANT TO HEAR FROM THEM. It's not right, it's not British and it's not fair.

Also received a response from BFTF's local (Labour) MP who said that :

"This badly drafted legislation could end up having a chilling effect on charities and community groups that are conducting legitimate campaigning work. This Act was supposed to clamp down on paid-for lobbyists arm-twisting govenments into making decisions in their clients' interets without proper transparency and openness. Instead, charities are being targeted for wanting to raise health, education and other public interest concerns with Members of Parliament. Thre Government has put in place legislation which is an affront to our democracy and I will continue to support calls for the Act to be repealed"

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