The next six weeks in the United Kingdom will see a spree of election campaign activities, as politicians, pundits, academics and citizens weigh in on the issues at stake in the upcoming snap election on June 8.
Many NGOs, advocacy groups and development organizations which normally serve as a bedrock of expertise on international development and the role of the U.K. overseas will be remaining quiet, however, in fear of falling foul of ambiguous legislation.
“We were all set to publish our most recent report, it was scheduled to go out soon. But not anymore. See you in eight weeks.”— Anonymous U.K. advocacy organization
Under a new law introduced in 2014 — widely known as the Lobbying Act — anything “that could reasonably be perceived as being intended to influence an election” can count as campaign activity, and would fall under the relevant regulations, including requiring an organization to register as a campaigning group and limiting how much it can spend during the campaign period. This means that any published report, event, social media campaign or speaking engagement associated with any issue that might come up in an election is at risk of violating the rules.
NGOs and civil society organizations warned at the time the legislation was passed that it would unduly restrict their activities. Greenpeace recently revealed that it was fined 30,000 pounds for failing to register as a campaigning group in the run-up to the 2015 election, after campaigning for sustainable fishing policies to be included in the parties’ manifestos.
While Greenpeace claims its failure to register was a deliberate act of protest against the law, many NGOs say the uncertainty means they are likely to tone down their activities this time around.
“There is a real concern that public messages during election campaigns may be misinterpreted either intentionally or unintentionally,” Tamsyn Barton, chief executive officer of the U.K. NGO network Bond, told Devex.
“Ultimately this impacts upon free speech, which is a double blow if organisations with relevant and needed expertise on an election issue are unable to contribute to the debate,” Barton said.
The Commission on Civil Society and Democratic Engagement reported that 34 out of 36 organisations that gave evidence on the act stated they had unanswered questions, especially regarding the definition of terms such as “reasonably regarded” and “altered or increased activity.”
An untested law
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Organizations described the act’s effects on the 2015 general election as “chilling.” They worry that contentious issues could fall under its purview, including debate around spending 0.7 percent of gross national income on overseas aid; the U.K.’s impending exit from the European Union; and issues relating to refugees and migration.
As a result, many organizations opted out of contributing to the last general election, a strategy that some representatives told Devex they plan to take up again.
One employee of a U.K. advocacy organization spoke to Devex on condition of anonymity, concerned that talking about the Lobbying Act itself could be perceived as a violation, as candidates decide whether to include its revision in their manifestos.
“We were all set to publish our most recent report, it was scheduled to go out soon,” the employee told Devex. “But not anymore. See you in eight weeks.”
Complicating matters further, the act’s “regulatory period” for campaign activities is one year prior to the election. With a snap election coming up in just a few weeks’ time, this means that organizations must now retroactively assess and report any activity that might have touched on issues that could come up in campaigns.
Barton pointed to the cost of such an endeavor, and the limited budgets of many nonprofit organizations in the U.K. “We also need to bear in mind the cost of seeking legal advice, which can run into thousands,” she said.
“Not all organisations can afford to pay for legal advice [on whether their activities could fall foul of the legislation], especially smaller civil society organisations and charities. Ultimately this is money which could be used to help tackle climate change, poverty and humanitarian crises.”
Lord Robin Hodgson, a Conservative Party peer who submitted a report on the act with suggested amendments in 2016, told Devex he also took issue with the way the act handled snap elections.
“What happens when you have an unexpected general election? How can a charity deal with that if they didn’t know a general election was going to happen, and the regulatory period began June 9, 2016?” he said. “I do hope very much that the Electoral Commission, who accepted my recommendations too, will bear in mind the particular position charities find themselves in when we have an election out of the blue,” he said.
Hodgson’s report received praise from the sector, particularly his suggestion to reduce the regulatory period from one year to six months. He told Devex the report was accepted by the government but has yet to be prioritised in the legislative calendar.
“We are waiting for legislative time to be available,” he said. “I would say it will take a very long time indeed because we’re going to be obsessed about Brexit, and there will be very few legislative slots, and of course this is the sort of thing that only comes to the top of the agenda when elections take place.”
‘Getting on with it’
Despite the ambiguities, Hodgson advised that organizations pluck up their courage in the face of the election, and take comfort in the Electoral Commission’s commitment to enforce the law carefully.
“I think there is the council of despair which some charities adopt. The reality is that you are entitled to lobby in pursuance of your public benefit objectives,” he said.
“I personally believe that if you were a charity and you were spending whatever your business-as-usual budget is, and you continue to use that during the election period, I doubt if the Electoral Commission will go after you,” Hodgson said.
“Campaigning during election time is a critical and legitimate part of what our members do.”— Tamsyn Barton, CEO of Bond
During the last election, Bond also encouraged organizations to keep up their usual workflow, regardless of the campaign rhetoric, and advised them to “continue campaigning on the policy issues that you have a history of working on.”
“Campaigning during election time is a critical and legitimate part of what our members do — how else can organisations ensure that those who are vulnerable and marginalised have a voice?” Barton told Devex. “It’s an important part of any healthy democracy. I would hope that any political party that is serious about protecting civil society space around the world would commit to revising the act in their manifestos.”
Asked how the Electoral Commission might assess an organization’s activity in the months prior to the election’s announcement, a spokesperson pointed to the most recent guidance for the snap election, advising that organizations err on the side of caution by registering as a campaigning group with the Commission, which is free of cost.
“We are unlikely to consider enforcement action against non-party campaigners that have taken prompt steps to register, even if their regulated spending is already in excess of the registration threshold,” the spokesperson said.
Rather than opt out, the Commission advises: “If you are not sure about whether spending is regulated, you should consider whether registering will remove the risk of your breaking the spending rules.”