Friday, 3 October 2014

Campaigning on the ECHR and the Lobbying Act

The Conservatives' plan to scrap the Human Rights Act, replace it with a British Bill of Rights, and repeal the ECHR is scary and already ruffling the feathers of human rights campaigners.

Respected media and human rights lawyers have been writing about the Conservative plan, already questioning its legality and how they can think this is a good idea. 

But how will the Lobbying Act apply, if anyone wants to campaign against it?

The third sector has spent most of this year up in arms with the prospect of the regulated period set out by the Lobbying Act (Transparency, of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014) coming into force in September and hampering their campaigning activities up until General Election.

There was never any real need to be too concerned about charity activity during the regulated period. There are one or two grey areas in the Electoral Commission guidance, but they relate to a vague point of law (definition of reasonable person) and it remains unlikely that the Electoral Commission will investigate every complaint made against charities campaigning during the period, unless there is a case where said charity is also openly breaching charity law (which would warrant an investigation by the Charity Commission). The majority of UK registered charities is law-abiding and will sail through this period without any problems.

However, the Lobbying Act doesn't only relate to charities - anyone who is a "non-party campaigner" or "third party" may be subject to it. That includes an individual registered to vote/resident in the UK, a UK-registered company, UK-registered bank, UK-registered Limited Liability Partnership (law firms), trade union, body incorporated by Royal Charter, and the list goes on.

If you're not yet familiar with what happens during the regulated period, here's a flavour: there are spending limits for regulated activity nationally and per constituency, and even if you don't register as a campaigner, you may be subject to those limits if you carry out regulated activity. Confused?

For example, if an individual, group of individuals, registered company or law firm decides to campaign against the Conservatives' manifesto pledge of scraping the HRA, repealing the ECHR, which would inevitably lead to the UK exiting the European Union, they would be carrying out regulated activity, according to the EC's guidance to the Lobbying Act.

Ultimately, any campaigning against this policy would happen with the intention of making people vote anything other than Conservative - that objective coupled with public activity (production or publication of electoral material, press conferences and other media events, spending money on travel related to your campaign, canvassing and market research, public rallies and events), would meet both the public and purpose tests set out in the Act.

That means anyone wishing to campaign agains the Tory policy of scraping the HRA and repealing the ECHR, if a registered campaigner, would have to abide by the £9,750 spending limit per constituency, and inform the EC if intending to spend more than £20,000 nationally. The money you spend nationally counts towards your spending per constituency (divided by the total number of UK constituencies, 650). You have to keep records of all expenses above £200, and might not be allowed to receive individual donations higher than £500.

Arguably, these are not very tough rules to abide by. But for anyone willing to put their heads above the parapet to campaign against the controversial Conservative policy, here's a sobering thought: if you manage to raise £500,000 to campaign nationally (you would be a hero if you managed to raise that much money anyway), you will be close to meeting the target of spending per constituency, which means you wouldn't be able to target individual constituencies during your campaign.

If your intention was only to target constituencies, to be able to do any meaningful campaigning, you would have to raise nearly £650,000, to keep you close to the spending limit, but would not be allowed to campaign nationally on top of that. The Conservatives have a possible number of 75 target seats and it is likely they will spend £100,000+ (including money spent in the lead up to the regulated period) on each of those seats alone. If the anti-HRA/ECHR policy is the driving force of their manifesto, that is what you would be up against as a campaigner.

If you were to campaign on their target seats alone, you would need a lot of money. If you were to campaign nationally against the policy, without doing constituency work, it's unlikely you would achieve meaningful results in terms of election outcome - you would also be battling the vast reach of a large section of the media that seems to think these changes are a good idea.

In addition, if you're not a registered campaigner - that's likely to apply to individual campaigners or small companies - you cannot spend more than £20,000 in England and Wales, £10,000 in Scotland if you're carrying out regulated activity.

Individual lawyers, twitter crusaders and newspapers can still make noise against the Conservatives' dreadful plans. But one other consequence of the new rules imposed by the Lobbying Act is that anyone voicing their concerns by carrying out a "media campaign" will be constantly on their toes, wondering when the rules will start applying to their activities.

Of course, if you're not brave enough to face these constraints, you had better start hoping hard the Conservatives won't get a majority in May 2015*.

You can find the full guidance from the Electoral Commission on general election non-party campaigning during the regulated period here.

*Maybe not that hard - a Conservative majority looks unlikely. But you never know.

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