The Transparency of Lobbying, Non Party Campaigning and
Trade Union Administration Bill
House of Lords Second Reading
Tuesday 22 October 2013
This briefing sets out our views on Part 2 of the Bill which amends the rules that
apply to “non-party campaigners” in the run-up to elections. These are people or
organisations who are not standing for election, but whose activities could
influence voters at elections. We are responsible for monitoring and enforcing
compliance with the rules on non-party campaigning that promotes or prejudices
the electoral success of political parties and groups of candidates.
Non-party campaigners (also known as “third parties”) are regulated under the
Political Parties, Elections and Referendums Act 2000 (PPERA) because of what
they do, and not because they are a particular type of organisation. Unlike
political parties, non-party campaigners often have many other objectives beyond
expressing views on political or policy issues. The Commission believes that,
where significant non-party campaigning takes place, this should be transparent
and properly regulated. However, the nature of non-party campaigning means
that changes to the rules can have significant consequences and need careful
consideration.
Issues that Parliament will want to consider in relation to Part 2 of this Bill
include:
 The overall impact on campaigners of widening the scope of regulated
activity while reducing the amount that campaigners can spend before
they have to register, and reducing spending limits

Whether the new controls on spending at constituency level will be
workable in practice, and how Parliament expects the new regime to be
enforced
For further information, please contact Warren Seddon, Public Affairs Manager
on 020 7271 0632 or [email protected].
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This briefing is divided into the following sections:
 Key points for Second Reading
 Impact of Part 2 of the Bill
o The impact on electoral events
o The impact on campaigners
o The implications for enforcing the rules
o The impact on the Commission
 Annex - campaign scenarios
Key points for Second Reading
Context on non-party campaigning
1. Earlier this year we published a briefing1 setting out the scope of the current
non-party rules and how much regulated activity has taken place at recent
elections. At the 2010 general election, 33 non-party campaigners registered.
Ten of them did not report any spending, and the remaining 23 reported
aggregate spending of around £3m in the year before the election. As a
comparison with the largest parties in the UK Parliament, the Conservative,
Labour and Liberal Democrat parties reported spending around £31m on
national campaigning over the same period, and candidates standing for
these parties reported spending around £21m in the four months before the
election.
2. We published a regulatory review of party and election finance in June 2013 2
which recommended that more types of non-party campaigning activity
should be regulated, but emphasised that changes should be considered
carefully, for the reasons described above. We share the concerns
expressed by the Commons Political and Constitutional Reform
Committee and the Joint Committee on Human Rights about the timing
of the Bill and the absence of pre-legislative scrutiny. If this Bill is
enacted, the changes will apply to the 2015 UK Parliamentary general
election and will apply to campaigning from May 2014 onwards, allowing only
a matter of weeks for organisations to prepare prior to the introduction of the
new regime.
1
Briefing note on non-party campaigning rules
http://www.electoralcommission.org.uk/__data/assets/pdf_file/0004/155380/Briefing-on-thirdparty-campaigning-in-the-UK.pdf
2
A regulatory review of the UK’s party and election finance laws: recommendations for change
http://www.electoralcommission.org.uk/__data/assets/pdf_file/0008/157499/PEF-RegulatoryReview-2013.pdf
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Part 2 of the Bill
3. The Bill changes the scope of what spending by non-party campaigners is
regulated, and also places new controls and requirements on that activity. At
Commons Report stage the Government amended the Bill’s definition of
regulated spending. The amendments have helped to clarify the scope of the
controls, but do not address wider issues about Part 2 of the Bill that we and
others have raised. In particular, we expect that Parliament will want to
consider further the cumulative impact that Part 2 of the Bill will have on
non-party campaigners, taking into account the scope of controlled
spending and the effect of lower thresholds for registration as a campaigner,
lower spending limits, new limits on spending in constituencies, issues around
how the rules should be enforced, and concerns about administrative
burdens.
Scope of controlled spending
4. The Bill covers spending on defined activities (including advertising, leaflets
sent to the public, websites, rallies and events, press conferences, market
research and transport). All relevant costs are covered, including staff costs
(which are not regulated for political party spending).
5. In response to concerns raised by us and others, the Government amended
the Bill at Commons Report stage to change some of the definitions of those
activities, and to provide that spending on those activities is only regulated if it
“can reasonably be regarded as intended to promote or procure electoral
success” for parties or groups of candidates. These amendments were
helpful in clarifying that the scope of Part 2 of the Bill covers campaigning that
can reasonably be seen as intended to influence people’s voting choice. This
has reduced what we saw as an overly wide discretion for us to determine the
scope of the regime in our guidance. Because the Bill brings some kinds of
activity into the regime for the first time, we have said to the Government that
the wording of the amendments needs further consideration and testing.
Following debate at the Lords Second Reading, if we conclude that further
changes to the definition of controlled spending would be helpful, we will brief
the House as soon as possible.
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6. The Government’s amendments clarified that as under the current rules, the
Bill will regulate campaigning activity on policies and issues that can be
reasonably regarded as intended to promote electoral success. This applies
even if the activity also seems intended to achieve other things, or does not
mention any party or candidates. In some circumstances, a charity
campaigning on policy issues may therefore quite legitimately fall within
the scope of the rules on non-party campaigning, even though its activity
is fully compliant with the restrictions that charity law places on party political
campaigning.
7. We think these controls on campaigning that is not explicitly ‘party political’
are a necessary part of the regime. Without them, it would be easy to evade
the rules by framing political campaigning in terms of policies. For similar
reasons, we do not think the rules should exclude particular types of
organisations, such as charities or voluntary bodies, as this would create
opportunities for political campaigners to evade the rules and would reduce
transparency. However, the necessarily wide scope of the definition of
controlled spending makes it particularly important to consider the
overall impact on campaigners of Part 2 of the Bill, including the
registration thresholds and spending limits. The annex to this briefing
gives examples of how we anticipate that the non-party campaigning rules as
amended by the Bill could apply to scenarios involving policy pledge cards, a
public rally and a regional press launch of a policy report.
8. Debate in the Commons and outside Parliament has demonstrated that many
people are confused about the scope of the Bill as amended, and how the
provisions will relate to policy-based campaigning. As the regulator, we are
clear that the scope of the current and future rules is as we have
described above.
Registration thresholds
9. The Bill cuts the ‘thresholds’ that determine how much non-party campaigners
can spend on regulated activity, in the year before a UK Parliamentary
general election, before they have to register with us. The threshold falls from
£10,000 to £5,000 for spending in England, and from £5,000 to £2,000 for
spending in Northern Ireland, Scotland and Wales, accompanied by an
expansion of the scope of regulated activities covered under the regime.
10. Registered campaigners have to comply with a set of regulatory requirements
that the Bill expands significantly (see ‘Impact on campaigners’ below). The
threshold changes will therefore create significant new burdens for small4
scale campaigns and for us as the regulator. It is important that regulatory
controls on non-party campaigning should be proportionate to the scale and
impact of campaigning. Our view is that, as the Commons Political and
Constitutional Reform Committee recommended in its report on the Bill, the
current registration thresholds should be restored unless the
Government can show the need for the reductions.
Spending limits
11. The Bill reduces the total amount of regulated spending that non-party
campaigners can incur in the year before UK Parliamentary general elections
by between 60% and 70%, to £319,800 in England, £10,800 in Northern
Ireland, £35,400 in Scotland and £24,000 in Wales3.
12. We do not have evidence that campaigners have been stopped from
campaigning by the current limits at past General Elections. However, our
discussions with campaigners since the publication of the Bill indicate that the
new limits, particularly outside England, may result in a significant reduction in
the activity of certain campaigners when taken together with the wider range
of regulated activity, compared to what they would have undertaken in the
past. In the light of the Bill’s revised definition of regulated spending, we
expect that Parliament will now want to consider what spending limits
provide the appropriate balance between freedom of expression and
controls on undue influence.
Constituency spending limits
13. The Bill introduces new limits on regulated spending in relation to parties or
groups of candidates (but not individual candidates) that has an effect in
some constituencies but “no significant effect” in others. The limits are
£9,750 in each constituency over the year before a UK Parliamentary general
election and £5,850 in the 4-5 weeks after Parliament is dissolved. As with
the national spending limits, we expect Parliament will want to consider
whether these limits are appropriate.
3
The current rules on non-party campaigning mean that where several
organisations campaign together on an issue and jointly incur spending, their
total spending counts against each organisation’s individual spending limit.
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Enforcement of the new regime
14. The combination of lower registration thresholds and spending limits, new
constituency limits, and the wider scope of regulated activity, is likely to create
a much higher level of allegations of breaches of the rules by non-party
campaigners than at previous elections. We are particularly concerned
that the constituency controls may be unenforceable within the
timescales of an election, given the difficulty of obtaining robust evidence to
determine and sanction breaches.
15. We have asked the Government to clarify how it expects us to enforce the
new constituency controls, and in particular whether it anticipates that
enforcement will take place ‘after the fact’ as is usual with breaches of the
rules on election campaign spending or that we should be in a position to take
action more quickly. We have not yet had a conclusive response and there
was little opportunity for debate on these provisions during the Commons
stages of the Bill’s passage. The answer will have important implications for
us and campaigners, which are discussed further in the next section of this
briefing. We expect that in debate on the Bill, Parliament will want to set
out its expectations of how the new rules should be enforced.
Other requirements and administrative burdens
16. The Bill introduces other new restrictions and requirements for campaigners,
including limits on targeted spending that supports a political party, pre-poll
reporting of donations, and publication of accounts. It is important that
these are workable and proportionate. We have concerns about many of
the Bill’s requirements as drafted, and are discussing these with Government
(see ‘impact on campaigners’ below for examples).
Our regulatory mandate
17. The Bill includes a change to our regulatory remit. The Commission’s Board
and Accounting Officer were not consulted on the change, and we are
concerned that it has been brought forward without consultation or clear
rationale. We are particularly concerned that the introduction of a “duty … to
take all reasonable steps” to ensure compliance, in place of the current
function of taking such steps as we consider appropriate, will increase the risk
of challenge to any of our regulatory decisions, including those involving
political parties. This in turn will affect our ability to deal promptly with
spurious or politically motivated and unfounded allegations. The Commons
Political and Constitutional Reform Committee’s report on the Bill
recommended that the change should be removed from the Bill pending
consultation with us, and we support this.
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Impact of Part 2 of the Bill
The impact on electoral events
18. The rules on non-party campaigning that promotes or prejudices the electoral
success of political parties and groups of candidates apply to a “regulated
period” in the run-up to certain elections. The regulated period at UK
Parliamentary general elections is usually 12 months, and at elections to the
Scottish Parliament, the National Assembly for Wales, the Northern Ireland
Assembly and the European Parliament it is usually 4 months. The police are
responsible for dealing with breaches of the rules on non-party campaigning
for or against individual candidates which only apply in the final weeks of
election campaigns.
UK Parliamentary general election
19. The first election when the new rules will apply is the UK general election
expected in May 2015. The regulated period during which spending is
controlled will run from 23 May 2014 to 7 May 2015. This will begin
immediately after a separate regulated period for the European Parliament
elections at which the current rules will apply4.
Other elections
20. The Bill’s changes to the definition of regulated spending and to the
registration thresholds will apply to campaigning at elections to the Scottish
Parliament, Welsh Assembly, Northern Ireland Assembly and European
Parliament. The wider scope of activities covered will also effectively reduce
the spending power of campaigners at these elections, although the Bill does
not reduce the spending limits or impose constituency controls at elections
other than UK Parliamentary general elections.
Referendum on independence for Scotland
21. The regulated period for the UK general election expected in May 2015 will
overlap with the regulated period for campaigning at the referendum on
independence for Scotland. The Bill as introduced in the Commons raised
concerns that the changes it made could affect referendum campaigning. We
think that the Government amendments in the Commons remove the
4
The current PPERA rules provide that campaigning at the next UK Parliamentary general
election will be regulated from January 2014 onwards, under a combined regulated period that
also covers the 2014 European Parliament elections. The Bill provides that the current rules will
apply to the European Parliament election regulated period from January to May 2014, and the
new rules in the Bill will apply to the period from 23 May 2014 until May 2015.
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uncertainties that were created by the Bill as introduced. It was helpful that
the Government confirmed at Commons Report stage that “the Bill does not
have an impact on referendums”.
The impact on campaigners
22. Since the Bill extends the rules to cover activity that we do not currently
regulate, over the summer we discussed how the Bill as introduced could
apply in practice with over 40 organisations across the UK including
campaign groups, charities, trade unions, faith groups, political parties, legal
advisers, umbrella bodies, trade associations and other regulators. We are
grateful to these organisations for giving us their time. Our comments on the
Bill do not of course represent the views of anyone other than the
Commission.
What the changes mean for campaigners’ plans
23. For campaigners to understand whether and how the Bill will affect their
activity in the year before May 2015, they will have to do the following:
(1) assess whether any of their planned activity will fall into the new list of
categories covered by the Bill and whether it can reasonably be seen as
intended to promote the electoral success of a political party or
candidates;
(2) estimate the likely costs of those activities, including staff costs etc5;
(3) estimate whether the costs relate to activity in particular constituencies;
(4) consider whether their plans include coordinated campaigning with
other organisations, because under both the current law and the Bill, the
total coordinated spending will count towards the individual spending limit
of each campaigner; and
(5) decide whether their planned spending will exceed the threshold that
requires them to register with us
(6) check that their planned spending will stay within the reduced spending
limits across the UK and the new spending limits for activity in
constituencies.
5
In this respect both the current rules on non-party campaigning and the Bill (schedule 3 ‘new
schedule 8A’) differ from the rules on political parties, whose staff costs relating to national
campaigning are not regulated (schedule 8, paragraph 2(1)(d) PPERA)
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24. It has been suggested to us that the impact of the Bill’s changes to the scope
of the non-party controls, taken together with the lower registration thresholds
and spending limits could be particularly significant in Scotland, Wales and
Northern Ireland, where civil society has often had a prominent role in the
development and discussion of new policy and legislation in recent years.
Registration and administrative burdens
25. The Government’s Impact Assessment for Part 2 of the Bill estimates that the
changes to registration thresholds will lead to between zero and 30 additional
campaigners needing to register in 2015 compared to 2010. It is difficult to
estimate the likely level of additional registration that may be required
because of the widened scope of regulated activity and the reduced
thresholds proposed by the Bill, but this appears likely to be a severe underestimate on the basis of our discussions with campaigners.
26. The Bill will clearly increase the regulatory burden for registered campaigners.
The Impact Assessment states that the estimated cost of compliance with the
Bill changes for registered campaigners will be in the range from zero to
£800. This assumes among other things that campaigners will need two
hours to become familiar with the new definition of regulated activity because
it is “a relatively clear and simple requirement”, and that a day of additional
information recording will suffice to deal with the new requirement. On the
basis of our experience of the effort that campaigners need to make to
comply with the current rules, and of our discussions with organisations that
may be affected by the new rules, we do not think these estimates are
credible.
Complying with new spending limits
27. The Bill will require more organisations than at present to consider whether
they will be affected by the rules, because of the reduced registration
thresholds and widened scope of regulated activity. The fact that the definition
of regulated spending covers campaigning activity on policies and issues that
can be reasonably seen as intended to promote electoral success means that
organisations will need to take a judgement on whether their planned
activities will fall within this definition. This is not always straightforward, and
we expect that a significant number of organisations will want to seek our
advice on their plans in addition to consulting our guidance documents. The
number of organisations undertaking small-scale campaigning affected by the
rules would be reduced if the registration thresholds are set at a higher level.
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28. The Bill’s changes also mean that non-party campaigners will need to control
and manage their spending at both national and constituency level in order to
comply with the spending limits. Most non-party campaigners are not
organised by Parliamentary constituency.
New reporting requirements for donations and campaigners’ finances
29. The Bill introduces a new requirement for registered campaigners to submit
regular reports before the election of donations received towards their
regulated spending. It also requires organisations to submit a statement of
accounts covering the regulated period with their post-poll spending return,
unless other legislation already requires them to publish accounts of a certain
standard.
30. These new requirements are largely modelled on those that apply to political
parties. Our recently published regulatory review included recommendations6
to simplify the donation reporting rules for parties, and if these are adopted for
the proposed new regime they would help to reduce the new burdens
imposed on campaigners. We are in discussion with the Government about
this, and about the scope to reduce the burdens imposed by the new
requirements on statements of accounts.
The implications for enforcing the rules
31. Since rules on campaign spending at elections were first introduced for
candidates in 1883, enforcement activity has generally taken place after the
poll, rather than during the campaign. This is consistent with the approach the
law takes to other aspects of elections, such as corrupt and illegal practices
not relating to campaign spending. In late 2010 the Commission was given
access to a range of civil sanctions for breaches of some criminal offences
relating to campaign spending by political parties and non-party campaigners,
including “stop notices” that can be used where we have grounds to suspect a
serious breach of the rules. The 2015 UK Parliamentary general election will
be the first one at which we have these sanctioning powers.
32. As noted in the previous section of this briefing, the changes introduced by
the Bill are likely to create a higher level of allegations of breaches than at
previous elections. They also raise questions about Parliament’s view of the
need for investigative or enforcement action to deal with breaches of the rules
during the campaign, rather than after the poll. We think this is likely to be a
6
Paragraphs 3.9 – 3.20.
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particular issue in respect of the new constituency spending limits. It has not
arisen in the same way at previous elections, because political parties’
national campaigning is not subject to constituency limits, and we do not have
a sanctioning role for breaches of spending rules by individual candidates, or
those campaigning for or against them.
33. The new constituency controls will require us to respond to allegations about
campaign activity in any of 650 constituencies over a 12 month regulated
period. Even if we were given significant extra resources to deal with this, we
anticipate that it will be challenging to obtain robust evidence to determine
and sanction breaches in specific geographical areas, for example, regarding
the effects of a leafleting campaign or mobile advertising in different
constituencies. This in turn means that it is likely to be difficult to demonstrate
that a breach meets the necessarily high test for using a stop notice to
intervene to halt campaigning activity.
34. It is therefore important that the Government and Parliament set out clearly
their expectations of how the non-party rules should be enforced by the
Commission, so that we can consider the resource implications and whether
our investigative and enforcement tools are fit for purpose in this new context.
The impact on the Commission
The Commission’s resources
35. The Government’s Impact Assessment acknowledges that we are likely to
need additional resources in order to regulate the new rules. For the reasons
outlined above, we think its resource estimates are significantly understated,
and will discuss this with the Speaker’s Committee on the Electoral
Commission which is responsible for our funding.
The Commission’s regulatory remit
36. As noted above, the Bill includes a change to the Commission’s regulatory
remit on which we were not consulted. The change could add further to our
workload, particularly by making it harder to deal promptly with unfounded
allegations.
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Annex - campaign scenarios
This annex gives examples of how the non-party campaigning rules could apply
to three campaigning scenarios. Some of the types of non-party activity
described here will become regulated for the first time under this Bill.
The examples provided are not comprehensive and provide an early indication of
how aspects of the new regulatory system could work in practice, based on our
current understanding of the Bill. These examples are purely illustrative and will
not apply to all campaigners’ activity, because the nature of the current rules and
the regime as amended by the Bill means that the facts of each case will
determine whether spending is regulated.
A ‘pledge card’ campaign
An organisation wants to raise public awareness about its views on a
controversial policy issue before the UK general election. It publishes a
pledge card of policy commitments that it wants candidates and political
parties to support.
Could this be regulated?
 Depending on how the organisation uses the pledge card, the spending
could reasonably be seen as intended to promote the electoral success of
parties or candidates that share a view on that issue.
 The costs of “election material” that could be seen in this way are
regulated under the current rules.
An example of what would be regulated: The organisation asks candidates
about their views on the policy commitments. It sends members of the public a
leaflet about its preferred election policies, including a list of candidates or
political parties that supported the pledges. It also asks candidates to pose for
photos holding a pledge banner and publishes these photos. In our view,
spending on these activities can reasonably be regarded as intended to promote
electoral success for candidates who advocate particular policies or hold
particular opinions.
What does this mean for the organisation?
The organisation will have to record the costs of producing, publishing and
distributing its pledge card campaign. If the costs exceed the registration
threshold (£5,000 in England or £2,000 in Scotland, Wales or Northern Ireland) it
will have to register with the Electoral Commission.
However, if the organisation only shared this material with its members rather
than the public, the spending on this activity would be exempt from the PPERA
rules because it is not distributed to the public. Alternatively, if the organisation
published its list of policy commitments and simply asked the public to discuss
the issues with all their local election candidates, this is unlikely to be regarded
as intended to promote the electoral success of parties or candidates that share
those views.
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A regional campaign about an infrastructure project
Several organisations are working together to campaign on a regional
infrastructure project. They want to launch a public report and hold a press
conference about their preferred solution. Several parties and candidates
have already outlined a range of conflicting views on this project.
Could this be regulated?
 Depending on how the group of organisations expresses its views in the
report and at the press conference, the spending could reasonably be
seen as intended to promote the electoral success of parties or candidates
that share a view on that issue.
 Activity that is considered to be “election material”, including documents
distributed to the public, has been regulated under PPERA since 2000.
 Press conferences and media events will become regulated for the first
time under this Bill.
An example of what would be regulated:
The organisations publicly distribute a report that describes the support that
current MPs and local candidates have given to the group’s preferred solution. At
the press conference, the group’s speakers also talk about the support given to
their campaign from high profile stakeholders in the community, including
thanking MPs and candidates for their work to back this solution.
Our initial view is that some spending on these activities can reasonably be
regarded as intended to promote electoral success for candidates who advocate
particular policies or hold particular opinions7.
What does this mean for the group of organisations?
The UK general election will be the first time that constituency based spending
limits are applied to third party campaigners.
The organisations will have to comply with these spending limits of £9,750 for
each constituency that is inside the region affected by their campaign or £5,850
per constituency for the 4-5 weeks after Parliament has dissolved. For example,
if the campaign affects a region which has 5 constituencies inside it, their
regulated spending in each constituency will have to be kept within the above
limits.
The current rules on non-party campaigning that is jointly planned do not change
under the Bill. These rules mean that where several organisations campaign
together on an issue and jointly incur spending, their total spending counts
against each organisation’s individual spending limit.
7
Because this kind of non-party activity is not currently regulated, we have not developed
guidance on what spending relating to press conferences is likely to be regulated and this sets
out our initial view
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A public rally
A national organisation plans a public rally to draw attention to concerns
about a policy issue on which political parties have different positions.
Could this be regulated?
 Depending on the campaign’s messages, the event could reasonably be
seen as intended to promote the electoral success of parties or candidates
that share a view on that issue.
 Public events will become regulated for the first time under this Bill.
An example of what would be regulated:
The organisation has campaigned on this policy issue for decades, and
organises a rally every year. This time, they want to invite politicians and
candidates who share their concerns about the policy issue to speak at the rally.
Our initial view is that at least some of the costs of this activity are likely to be
reasonably regarded as intended to promote electoral success for parties or
candidates who advocate particular policies or hold particular opinions 8.
What does this mean for the organiser of the march?
The 2015 UK Parliamentary general election will be the first time that public
rallies not organised by political parties will be regulated under PPERA.
If the event has effect across England, Scotland, Wales and/or Northern Ireland,
the national spending limit will apply (e.g. £10,800 in Northern Ireland). If the
event has only a local effect, the organisers will have to comply with the relevant
constituency spending limit(s) which allow. £9,750 for each constituency
affected, or £5,850 per constituency for the 4-5 weeks after Parliament has
dissolved.
Then the organisers will have to count up all associated costs (including publicity,
transport, security and infrastructure costs such as policing and first aid).


If the rally receives lots of advance publicity at the last minute and it
appears that attendance will be high and therefore transport and security
costs will increase, the organisers will have to keep a close eye on their
spending limit
If the costs look likely to exceed the spending limit, the organisers will
need to seek advice about altering or cancelling the event
8
Because this kind of non-party activity is not currently regulated, we have not developed
guidance on what spending relating to the rally is likely to be regulated and this sets out our initial
view
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