Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill
Summary of QC’s opinion (September/October 2013)
1st legal opinion: sought after HoC Committee stage
The instruction was to consider the compatibility of the Bill with the European Convention on Human Rights – specifically Article 10 (the right to freedom of expression) and Article 11 (the right to freedom of assembly and association). The Bill’s compatibility with aspects of UK constitutional law was also considered.
One effect of Part 2 of the Bill will be significantly to expand the types of expenditure which will constitute “controlled expenditure”, to the extent that they are incurred “for election purposes”.
Such expenditure will include staffing costs, advertising, unsolicited material, the publishing of any manifesto or other document setting out the policies of any party or candidate or the third party’s views of the same; market research or canvassing conduced for the purposes of ascertaining voting intentions; the provision of facilities in connection with press conferences or other dealings with the media; transport of people with a view to obtaining publicity in connection with an election campaign (i.e., a campaign conducted by a third party for election purposes); and rallies and other events organised in connection with an election campaign.
And “election purposes” is expansively defined as meaning for the purpose of or in connection with promoting or procuring electoral success for, or otherwise enhancing the standing of: one or more particular registered parties; one or more registered parties who advocate (or do not advocate) particular policies; and/or one or more candidates who hold or promote (or do not hold or promote) particular opinions or policies. Significantly, activities may fall within the scope of things done “for election purposes” even though they do not involve any express mention of a party or candidate.
In addition, Part 2 changes the expenditure limits of what a registered third party can spend in the 12 months running up to a general election. It lowers both the total expenditure limit from £998,500 to £390, 000; but also the threshold at which a third party is required to register, from a spend of £10,000 to £5,000. The restrictions are even tighter in the devolved nations.
For the first time, the Bill introduces constituency limits, controlling the amount that can be spent by a registered third party in a Parliamentary constituency in the year before a general election.
The concern is that the proposals in the Bill will:
•significantly restrict the ability of charities and other organisations to engage in political campaigns or policy debates; and
•generally help insulate the Executive and, to an extent, the Legislature, from external criticism.
This is because the scope of costs and activities falling to be controlled as “political expenditure” is to be significantly broadened; and at the same time, the permissible allowance for such expenditure is to be significantly reduced. This is in addition to the imposition of more extensive regulatory burdens in the form of registration and reporting requirements for third parties, each of which will now apply at lower financial thresholds than previously.
At paragraph 48 of the legal opinion, it is stated: “In our opinion Part 2 of the Bill infringes Articles 10 and 11 of the ECHR.”
This conclusion is based on an assessment that the infringements contained in Part 2 are neither “prescribed by law”, nor “necessary in a democratic society”.
The lack of clarity surrounding Part 2 means that it is not sufficiently precise and accessible to enable an individual to foresee, to a degree that is reasonable in the circumstances, the (penal) consequences which breaching them would have.
The provisions are judged “not necessary in a democratic society” because they are “disproportionate”, being both “unduly burdensome and too wide”.
The opinion concludes:
“…no convincing case has been made (nor, in our opinion, could one be made) to justify significantly reducing the cap on permitted expenditure whilst simultaneously significantly broadening the scope of the expenditure limited by that cap. Nor has any convincing case been made (nor, in our opinion, could one be made) to justify the chilling effects of the Bill (described above) in terms of the ability of third parties to engage in political discourse.”
Part 2 is further deemed “unconstitutional” in breaching the ECHR, as enshrined in the Human Rights Act – a statute which is considered to be “a constitutional measure”.
2nd legal opinion: opinion sought following publication of government amendments to Part 2 – following Bill leaving HoC
On the 2nd Day of Report Stage in the House of Commons, amendments tabled by the Government were accepted into the Bill, relating to Part 2.
The amendments concerned the meaning and scope of “controlled expenditure” and the limits to expenditure in the run up to a general election.
The definition of expenditure “for electoral purposes” has been replaced by expenditure which “can reasonably be regarded as intended to promote or procure electoral success”.
The definition of the activities which will be captured and considered as “for electoral purposes” has, in the view of the legal opinion, in fact been broadened.
The legal opinion concludes that their concerns expressed in the first opinion have in fact been “strengthened rather than weakened by the recent amendments”.
The reasons given for this conclusion are:
•the concept of “for electoral purposes”, albeit replaced with different language by the amendments, still has the effect of being “highly uncertain”, to the extent of being regarded as “pernicious”:
-the language of the Bill continues to establish a test which is based on an objective view of what expenditure can “reasonably be regarded” as intended to achieve, rather than a test based on the actual intentions of campaigners
-it contemplates expenditure being “controlled” even if no mention is made of a candidate or political party , or even if it was clearly spent for a primary purpose which was not electoral
•the Government’s new amendments do not address the disproportionate nature of the Bill’s provisions:
-the burdensome reporting requirements remain
-the list of activities which will give rise to “controlled expenditure” has been broadened.
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*NB. The full documents detailing the QC’s opinion are available on request.
Published 22nd October 2013