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There has been a united, determined campaign against the gagging impact of the Lobbying Bill on the part of voluntary groups and NGOs. Some will therefore think it a shame that a minority of charities, and the Charities Aid Foundation, have at this late stage chosen the path of seeking exemptions for themselves rather than focussing on the wider considerations.
An exemption from lobbying legislation for charities alone is wrong in principle and likely to be unworkable in practice, as the Charities Commission set out in a carefully worded briefing to peers yesterday [see below], the day before amendments from Lord Harries are put on behalf of a huge swathe of NGOs gathered under the umbrella of the Commission on Civil Society and Democratic Engagement (CCSDE).
The reason so many object to the 'charity exemption' route is that it divides those with or without charitable status, it implicitly suggests (to those who want to read it this way) that charitable status is an adequate criterion for deciding whether an NGO is gagged or not, it allows different standards/mechanisms for different non-party groups, it opens up the possibility of people seeking to manipulate charitable status itself, and overall it will be seen as representing a move towards the 'Victorianisation' of charities retreating from speaking out on politically contentious policy issues.
Unlock Democracy suggest that the charity exclusion could "open up the very real potential for corporate lobbyists to exploit this loophole and actually set up charities to create the type of Super-PAC style funds that this Bill is purported to address".
Practically, the Charity Commission points out that an exemption raises serious resource issues for itself, and possibly for charities, given the increased overall scrutiny that is being applied. The idea that this lets charities off the hook of government attempts to suppress critical voices in civil society is misguided. There is a much deeper and wider political problem here.
Politically, the exemption move, proposed by a former Thatcher minister (Lord Mackay of Clashfern, who served as Lord Chancellor from 1987-1997) with the acquiescence of leading Lib Dems, is also unhelpful, many believe. It detracts from the wider critique of the Bill and its impact on civil society, democracy and free speech. It will be used by some peers to undermine attempts at more substantial reform of this damaging and poorly constructed piece of legislation. The best that can be said is that the charity exemption idea is partly well-intentioned, but naive.
It is important to recognise that most charities have not supported the amendment on exempting charitable bodies, because they want a regulatory system that works for everyone.
Ministers have now heard from the Commission on Civil Society and Democratic Engagement, the Electoral Commission, the Charity Commission NCVO and individual charities and NGOs in considerable detail on why they think it is not the right option.
Charity Commission briefing to peers on 14 January 2014:
We are aware of the recent amendment laid to exempt charities from the requirements of the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill and, as the regulator for charities in England and Wales, felt it was important for members of the House of Lords to be aware of the Charity Commission’s position on this issue. The points made below are consistent with the position the Electoral Commission has taken in their most recent briefing.
1.1 Charity law and electoral law – the current situation:
Charities must never support political parties or candidates for election. A charity can engage in campaigning to influence public policy but only in the context of supporting the delivery of its charitable purposes. We recognise that there are some circumstances where a charity’s activities can adhere to charity law but may still require them to register with the Electoral Commission during an election period. Indeed, during the last General Election a small number of charities did register with the Electoral Commission. Due to the increased awareness and scrutiny of this area we believe that this number may increase, regardless of the change in the scope of activities and limits that this Bill proposes. Our guidance for charities on campaigning and elections is on our website here http://www.charitycommission.gov.uk/running-a-charity/your-charitys-work...
1.2 Effect of an exemption on public trust and confidence in charities:
The Charity Commission believes in keeping the burden on trustees and charities to the minimum that is consistent with effective regulation. We do, however, have concerns about the practical implications of a charity exemption from the requirements of this Bill. This would create different requirements for charitable and non-charitable organisations: it is possible that anyone wishing to avoid the requirement to register with the Electoral Commission and the restrictions on political campaigning set out in the Bill might seek to exploit this difference by trying to apply for charitable status before an election period, or by trying to use existing charities as a vehicle for what would otherwise be activity regulated under electoral law. We do not believe that, in the best interests of public trust and confidence in charities, an exemption for charities is the most appropriate method for the regulation of charities during an election period.
1.3 Potential resource implications of an exemption:
Our budget will have seen a 50 per cent reduction, in real terms, comparing 2015/16 to 2007/8. We believe a complete exemption for charities, along with the already increased scrutiny and interest that publicity surrounding this Bill has caused, could increase volumes and workload to a level that we may not have the capacity to absorb. If an exemption were to be agreed, we would need to analyse the likely impact of this on our already stretched resources and extra resources may be needed to increase capacity.
1.4 Co-ordinated guidance for charities that need to understand if they are covered by the rules:
The Charity Commission and the Electoral Commission have committed to producing co-ordinated guidance along with a joint introductory guide for charities ahead of the regulated period for the 2015 General Election should charities not be exempted. We are sensitive to the particular help that some charities may need to comply with both electoral and charity law. In the past we have worked closely with the Electoral Commission to ensure their advice for charities on complying with electoral law and our guidance on charities and political campaigning in an election period is aligned and have continued to work closely together throughout the passage of this Bill.
* Lobbying bill amendment withdrawn after Charity Commission opposition | Third Sector: http://www.thirdsector.co.uk/Governance/article/1227461/lobbying-bill-am...
* More on the Lobbying Bill from Ekklesia: http://www.ekklesia.co.uk/
© Simon Barrow is co-director of Ekklesia. Follow him on Twitter @simonbarrowTweet