Lobbying Act 2014- Now in effect

10.10.14

Part II of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Act 2014 (better known as the ‘Lobbying Act 2014’) came into effect on September 19 2014. The Act significantly tightens up the rules governing the involvement of non-party campaigners, such as charities, in the run up to UK-wide, Scottish, Welsh and Northern Irish elections.

From 19 September 2014 until 7 May 2015 (the date of the next UK General Election), where a non-party organisation undertakes activities resulting in ‘controlled expenditure’, it must register with the Electoral Commission as a non-party campaigner. The threshold for ‘controlled expenditure’ is £20,000 in England, and £10,000 in each of Scotland, Wales and Northern Ireland. Where this expenditure limit is breached, organisations must register with the Electoral Commission. Once an organisation has registered, it becomes subject to campaigning expenditure limits laid out in the Lobbying Act – in respect of UK general elections, £319,800 in England, £55,400 in Scotland, £44,000 in Wales and £30,800 in Northern Ireland, and no more than £9,750 in any one constituency - and must account for its expenditure and activities to the Electoral Commission. After the 2015 UK General Election the period during which non-party campaigners will have  to register with the Electoral Commission will be in the preceding 12 months for any general election, and four months for other elections, ending on the day of the election.

The test for whether an activity comes into the category of ‘controlled expenditure’, laid out in the Lobbying Act, is whether expenditure can be considered by the Electoral Commission as “reasonably regarded as intended” to promote or oppose electoral success for one or more registered political parties, one or more registered political parties who advocate (or do not advocate) particular policies, or one or more candidates or group(s) of candidates who hold (or do not hold) particular opinions, or advocate (or do not advocate) particular policies. That the activities might be intended to achieve other purposes is not relevant.

The important thing about this test is that it is an objective test – what matters is whether the result of campaigning activities is that the campaigning organisation appears to support a political party or candidates, rather than whether the original intent was to do so. This means that charities and other campaigning organisations will have to take into account the potential effect of their campaigning activities, as the lack of intention to engage in political campaigning alone will not exempt organisations from these new rules. For example, where a candidate or political party supports a charity’s campaign upon a particular issue, and the charity includes this endorsement in its public literature, this would most likely fall into the category of activities affected by the Lobbying Act.

What are activities resulting in controlled expenditure? These might include:

  • Holding press conferences or media events;
  • Canvassing or carrying out market research asking members of the public for their views;
  • Transport;
  • Distributing material to the public or a section of the public;
  • Expenditure on public events such as rallies;
  • Associated staff costs.

Activities not covered by the Lobbying Act include direct communications with ‘committed supporters’ and politicians.

Charities will have to consider the reputational effect that registering as a non-party campaigner will have upon their support – it is possible that registration will identify a charity in the public mind with one particular political party or viewpoint, and repel supporters of alternative parties. This may lead to charities becoming more cautious in any campaigning activities or publicity events carried out in the run-up to elections. Additionally, larger charities may find that their proposed expenditure upon a campaign may be curtailed due to the new limits for non-party campaigners during the pre-election period.

In the run up to the General Election it is quite possible that charities may feel compelled to comment on political policy where they have concerns about the potential impact on specific client groups or on the charity sector in general. Those that do would be well advised to check their position under the Lobbying Act as there are penalties for non-compliance.

Guidance has been issued by the Electoral Commission and is available at http://www.electoralcommission.org.uk/i-am-a/party-or-campaigner/non-party-campaigners.

Key Contacts

For further information please get in touch with your usual Brodies contact or one of the individuals listed below:

Jackie McGuire

Alan Eccles