Lobbying Act and the third sector in Scotland - independent research findings

Introduction

Passed by the Conservative-led coalition government in January 2014, the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 (better known as the ‘Lobbying Act’) significantly amended campaign and election law in the United Kingdom. Passed on the bases of “transparency” and “cleaning up politics”, an array of actors across civil society have since condemned the Lobbying Act for being unenforceable, ineffective, and unworkable. Numerous parliamentary, professional, and scholarly studies are currently underway to assess the efficacy of the Lobbying Act in relation to its stated goals and purpose. To date, however, research has been disproportionately focussed on lobbying and campaigning at Westminster compared to the devolved administrations in Scotland, as well as Wales, and Northern Ireland.

The 2015 General Election was the first in which the Lobbying Act applied. Further, Scotland will hold its parliamentary elections in May 2016. As civil society plays a key role in Scottish policymaking processes, understanding how the Lobbying Act has affected non-party campaigners in Scotland is paramount. This will enable these organisations to campaign most effectively, and will also inform the creation of Scotland’s own forthcoming lobbying legislation.

To evaluate the Scottish perspective, interviews were conducted with representatives from 39 third sector intermediary bodies and organisations from around Scotland in the immediate aftermath of the U.K. General Election (May-July 2015). Interviews were then analysed and combined using the framework method for qualitative data analysis, and used to generate research findings as well as policy recommendations.

Key Findings

The UK Lobbying Act has had a material impact on the Scottish third sector

Most research participants cited concerns about the Act, and its provisions have conferred undue burdens because organisations have had to invest additional time and resources to ensure compliance with the law. This is diverting energy away from organisations achieving their charitable goals.

Half of the research participants reported being concerned about the Lobbying Act

Three main concerns arose from this study: confusion about the ambiguous definition of the purpose test, concern regarding the ‘catch-all’ nature of the legislation, and uncertainty about what would happen if an organisation actually contravened the Lobbying Act.

Due to the Lobbying Act’s lack of clarity, organisational perceptions of what the Act ‘does’ are as important (if not more so) than the actual regulations.

This sentiment was especially persistent amongst smaller organisations that lack the resources to properly understand the law, and it has resulted in them refraining from engaging in essential lobbying activity.

Lobbying Act guidance documents were not clear, nor were they satisfactorily disseminated to Scottish third sector organisations.

The Electoral Commission’s guidance was widely considered unclear, which resulted in additional uncertainty. It was also not widely distributed. Per a Freedom of Information request, only 8 organisations in this research received the Electoral Commission’s guidance, and seven of these were the English rather than Scottish branch.

The Lobbying Act may threaten the Scottish third sector’s willingness to collaborate.

While this research confirmed that Scottish organisations work together in a variety of capacities, the Act’s regulations may threaten coalition working because organisations (especially smaller ones) reach amended spending limits much quicker.

The Lobbying Act has conferred some benefits.

While the Act has created a net negative impact, some participants reported that increased bureaucratic measures had made them more aware of employee and financial activities, and also led them to develop more effective communication and campaign strategies.

Recommendations 

The Conservative’s recent election victory precludes the possibility of repealing the Lobbying Act at this time. Thus, the following recommendations represent a pragmatic approach that aims to strengthen existing legislation and inform forthcoming legislation, whilst ensuring that Scottish third sector organisations and other non-party campaigners are able to influence public policy in Scotland without undue hardship.

The Lobbying Act should be amended to disaggregate third sector lobbying activity from that of other lobbying entities

The one-size-fits-all approach has proven unsatisfactory. The current definition of the purpose test should be amended to be more subjective, and it should also be applied on a case-by-case basis (accounting for the type and remit of organisation, size, annual turnover, etc.

Spending thresholds must be amended to ensure that they do not unduly affect joint campaigns

This will entail establishing a threshold up to which joint campaign expenditures are exempted, which the Civil Society Commission recommends at £50,000. Up to that point, national campaign spending would still count toward the limits for individual unregistered organisations (£10,000 in Scotland).

Charities and other third sector organisations must be consulted regarding the development of amendments and guidance concerning lobbying activity.

More participative practices will legitimise the drafting process, thereby resulting in more robust amendments and guidance. A key component of this is including smaller organisations to ensure that forthcoming documents are truly beneficial for the entire third sector

Statutory bodies must standardise and improve practices for disseminating information related to the Lobbying Act among relevant stakeholders

This will entail fostering closer working relationships with membership organisations like SCVO, who have access to large networks. Further, it will require breaking the pervasive silo mentalities between statutory bodes to ensure that the guidance is uniform, understandable, and easily accessible.