David Allen Green: The Lobbying Bill threatens new, illiberal regulation for blogs like ConservativeHome

David Allen Green is a lawyer and journalist. He blogs at Jack of Kent and can be found on Twitter here.

The government has a plan about making politics better for all of us.  In particular, it has a proposal about regulating election campaigning by those other than formal political parties and actual candidates. 

The plans are contained in a draft Bill, with the dreadful name of the  “Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill”.  The Bill is comprised of three parts, each of which is ridden with problems.  That part which concerns Conservative Home and many other organisations, including charities, is Part 2 on “non-party campaigning etc”.

This part broadens significantly what will be meant by “election campaigning”.  Under the 2000 Act currently in force, it means the production and publication of election materials.  This is a fairly narrow definition. 

However, the Bill proposes a radical widening of this, and so sets out in a “Schedule 8A” a list of a whole range of  matters which are to be classed as being subject to regulation if done for “election purposes”.  It then, in turn, sets out a wide definition of “election purposes” which includes, remarkably, things done which may have an impact on an election, whether it was intended or not.  And if this was not wide enough, it covers not only current elections but any elections in the future.

With this expansive definition, any organisation which campaigns on anything which could one day have an impact on an election campaign, intended or not, is potentially caught-up. If so, then that organisation comes under strict spending rules, which are enforced by means of a range of criminal sanctions.  In effect, these third party organisations will be treated as if they are political parties. They will be regulated, and regulated hard.

Even the Electoral Commission, who would be charged with policing the rules are concerned and have said: 

• the Bill creates significant regulatory uncertainty for large and small organisations that campaign on, or even discuss, public policy issues in the year before the next general election, and imposes significant new burdens on such organisations
• the Bill effectively gives the Electoral Commission a wide discretion to interpret what activity will be regulated as political campaigning. It is likely that some of our readings of the law will be contentious and challenged, creating more uncertainty for those affected. While we as the independent regulator should be free to decide when the rules have been broken, and how to deal with breaches of the rules, we do not think it is appropriate for us to have a wide discretion over what activity is covered by the rules
• some of the new controls in the Bill may in practice be impossible to enforce , and it is important that Parliament considers what the changes will achieve in reality, and balances this against the new burdens imposed by the Bill on campaigners

The sentiment behind these plans can be pitched in commendable terms: of course, well-financed entities should not be able to unduly influence election campaigns without any check. But on close inspection, other than in respect of the creation of actual election materials such as adverts and so on, it is incredibly difficult to define what it means to influence an election campaign without catching a lot of others who campaign on issues legitimately. And a wide range of campaign groups and charities being able to promote specific policy goals is a public good: it makes electors less dependent on the traditional parties and news media.

The draft legislation has already been severely criticised. It is likely to be amended substantially when it comes before the House of Commons on 3 September. 

Readers of ConservativeHome, and of other similar websites, should keep an informed interest in how the Bill progresses. But unless the government re-thinks its proposals, then a number of bodies – such as Conservative Home – are going to be caught up in misconceived and illiberal legal regime.