Gagging order passed and the heavy cost to democracy

Pic: Pippa Baily.

Pic: Pippa Baily.

The ‘Transparency in Lobbying, Non-Party Campaigning, and Trade Union Administration Bill’, or – as it is commonly known known – ‘the gagging bill’, was passed into law last week.

It contains three major provisions regulating trade unions, lobbying and non-party campaigning in the run up to elections, and is supposedly designed to level the electoral playing field by reducing the disproportionate influence of large, and wealthy, lobbying groups.

But – as the old adage goes – the road to hell is paved with good (legislative) intentions.

In reality the law will largely affect small organisations, charities and trade unions, to the extent that campaigners against it have argued that it is potentially in breach of article 10 (freedom of expression) and article 11 (freedom of assembly and association) of the European Convention on Human of Rights – hence the ‘gagging’ law.

Liz Hutchins, spokesperson for Friends of the Earth, said that the passing of the law was a “bad day for anyone wanting to protect the environment, save a hospital or oppose tuition fees.”

Most significantly, it changes the amount that can be spent on campaigning before an organisation is required to register with the Electoral Commission to just £20,000 and imposes funding caps on non-party organisations in the run up to elections.

But such restrictions are not unheard of in western democracies. In fact, they’re actually quite common. The problem lies more with which organisations they are applied to.

Firstly, in-house lobbyists – who account for 80% of lobbying activity in the UK – are exempted from most of the law’s provisions, meaning that for the majority of the wealthiest and most powerful lobby groups it’s business as usual.

Secondly, part 2 of the law extends the definition of “election campaigning,” as outlined in the Political Parties, Elections and Referendum Act 2000, to include any organisation whose campaigning could affect the outcome of an election, regardless of original purpose, including charities.

The implementation of such a definition is a little problematic. How does it differentiate between electioneering and everyday business? If, say, the aims of a charity like SHINE, who campaign to improve education for disadvantaged children, coincide (which I hope they would) with the policies of a political party, does their advocacy become “election campaigning”? And who decides?

Worse still, applying electioneering funding caps to charities is utterly unnecessary. Charity law already prevents charities from campaigning for and against candidates or political parties in the UK.

Part 3 of the law requires that trade unions keep an up to date list of membership – on the face of it, a reasonable and fairly innocuous requirement. However, beyond the obvious administrative difficulties of keeping such a record, the law has serious implications. Controversial in the wake of last year’s blacklisting scandal, it means that trade union members will be unable to claim anonymity. It will also involve some employers in union membership processes, therefore entitling them to raise legal complaints – a potential threat that could give employers the upper hand in negotiations.

In essence, a Bill that was supposedly intended to preserve free speech by preventing large and wealthy lobbying groups from exercising disproportionate influence, has become a Law that does just the opposite.

It appears that, at least momentarily, Parliament has forgotten that an independent civil society is a prerequisite for the democracy in which it operates.

Of course there is some small satisfaction in that, ironically, the campaign against the gagging law has brought together activists from disparate and sometimes contradictory causes to exercise the very rights that are being compromised.


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