The parliamentary struggle over the UK government’s gagging bill, which has overshadowed Westminster in recent months, is all but over. And the end result is bad news for British democracy.
Yesterday ministers secured their final victories against freedom of speech campaigners. Their plans to make it much harder for charities to get their voices heard during election periods – exactly when their contribution is needed most – are about to become law as a result.
The transparency of lobbying, non-party campaigning and trade union administration bill, to give it its full title, has troubled civil liberties activists from start to finish.
Its attempted clampdown on the public affairs industry by forcing third-party lobbyists on to a statutory register, has been roundly dismissed because in-house lobbyists – the vast majority – are simply not included.
This flawed solution to the bill’s main target has been accompanied by a brutal attack on the voluntary sector. The government’s aim was to force small-scale charities, community groups and the like on to a complicated regulatory regime.
Such would have been the chilling effect of this law that most local-issue campaigning during elections would have been stifled when it came to election time. No surprise the legislation was dubbed the ‘gagging bill’.
As it was, bitter opposition to the proposals finally forced ministers to the negotiating table. Instead of lowering the threshold at which charities must begin reporting their activities to the Electoral Commission watchdog, it was increased to £20,000.
This was a major concession. There were other, smaller retreats too, on how long ‘election time’ actually means — it was reduced from one year to 7.5 months — and by excluding some costs like spending on translation into Welsh, or security, from controlled expenditure.
Ultimately, though, these alterations failed to change the bill’s big impact: that important voices encouraging politicians to make promises, and then holding them to their word, are to be stifled.
The Lords did its best to limit the damage. It inflicted embarrassing defeats on the government, which meant when the bill returned to the Commons yesterday MPs had to vote on whether or not to overturn the changes.
As the bill was being debated in the Commons chamber the atmosphere was one of resentment and frustration from the opposition benches — and a smug superiority from ministers. They knew they had already won the war. Now they were about to win the last of its battles, too.
A critical division came over staffing costs. For the bigger household names, like Countryside Alliance or Oxfam, this really matters.
The gagging bill is reducing the total amount a campaigning group can spend in a general election period from £988,000 to £390,000. Say it employs ten staff on a £20,000 salary — by including the staffing costs, the amount actually available to spend on leaflets and demonstrations and advertising is slashed still further.
Yesterday the government whipped its MPs against the Lords amendments. Groups like 38 Degrees had been mobilising their members to urge wavering MPs to rebel. In their offices earlier this week, staff expressed delight as the number of emails sent to backbenchers who’d previously expressed disquiet shot upwards.
Back in parliament, the mood at this campaigning onslaught was grim. One MP I spoke to was so worked up he got his staff to forward me the emails as they came in, to demonstrate just how disruptive they were. The flood which followed was, indeed, deeply irritating – about 50 poured in over the course of just a couple of hours.
Elsewhere, a Tory veteran even phoned up the police to complain about a group of activists wanting to petition him at his home. The bitter irony of this didn’t pass unnoticed.
Ultimately, all the efforts to sway the Commons didn’t make much of a difference. When it came to a vote the coalition’s majority was reduced to 32. But it still won, and the Lords’ improvements were consigned to history.
What caused this diminishing of our democracy? It’s mostly the result of those in power simply not caring much for the views of others. The latest reports from Downing Street indicate that senior No 10 strategists are desperate to find ways of reducing the pledges which candidates make during general elections. It’s much easier to avoid breaking promises, after all, if you haven’t made them in the first place.
And yet that is exactly what democracy, and free speech in Britain, are about: the ability to highlight when politicians are not sticking to their commitments, and the opportunity to encourage them to stick by a cause. Charities are a vital part of this, but the gagging bill is undermining their ability to make the case.
The result is not so much a law which makes it almost impossible for small-scale charities and voluntary groups to campaign during general elections, but one which merely makes the lives of their employees more difficult and awkward.
At the end of it all, democracy in Britain has got just a little bit worse. Our future elections will be slightly poorer affairs than before. The country we were in 2013 is not the country we shall be when, in a short while, the Queen finally hands royal approval to her government’s gagging bill.
Even after months of bitter opposition from the charities on the receiving end of the British government’s gagging bill, ministers are refusing to accept their reforms are threatening to undermine the “very fabric of democracy”.
That is the worry from the alliance of charities and other campaigning groups who will be hit by changes being pushed through in what the government insists should be called the “transparency bill”.
Such is the scope of the reforms in the legislation, which is now working its way through the Lords, that a whole range of campaigning activity will face intimidating regulation – and all the strangling paperwork that goes with it.
Democracy is about a struggle for power between competing political parties. But the electorate can only make up its mind if third-party groups make their voices heard on the most important public policy issues of the day.
If the government gets its way it is going to become much harder for that to happen. The list of groups which will be affected is endless: those attempting to save a threatened local hospital, or block the High Speed 2 rail project in constituencies on the proposed route, or trying to combat extremism in constituencies where far-right parties are threatening to make progress, are all set to be affected. There are many, many more examples.
Ministers claim they only ever wanted to make life tougher lobbying groups, rather than make their work virtually impossible. “It doesn’t matter what the bill was meant to do,” Baroness Hayter, the Labour frontbencher leading the fight against the bill in the Lords, says in reply. “Its intent may be transparency, but the effect of it is what’s worrying.”
The opposition’s complaints about the bill have forced minor concessions here and there. Ultimately, though, none of them change the fact that if the gagging bill passes it will be much, much harder to raise important issues just at the moment when they need to be highlighted.
Peers took over the struggle from MPs this autumn. They didn’t look to be making much progress until Lord David ‘Rambo’ Ramsbotham tabled a procedural motion which would have slowed up the bill’s progress through the Lords. A governmental panic ensued. Ministers met with Ramsbotham three times in a single morning. With the coalition facing defeat if it came to a vote, a six-week hiatus was announced.
It was a miserable concession. Opponents, who had wanted a pause of at least three months, weren’t placated at all. They were frustrated that, instead of holding a formal consultation, officials instigated a series of meetings with affected parties. One charity campaigner said he was asked again about the objections he’d already raised. “They said ‘oh no, it couldn’t possibly apply’,” he remembered. “I said, ‘are you sure?'” The ministers replied: “Well, yes, maybe…”
It is that uncertainty which remains at the heart of the issue. There is no single measure which is being fought over. Instead the cumulative effect of the reforms is what Hayter calls “tying them in red tape” – a combination of measures which makes it much more likely many small-scale groups will simply decide not to bother campaigning at all.
“The danger is the regulation it introduces will be so complex, ambiguous and demanding in terms of time that many small organisations will just not do it,” says Pete Mills, policy and research officer at Unlock Democracy. “They’ll be so worried about falling foul of the rules they’ll just stop campaigning altogether. That would be very dangerous in the run-up to an election where this kind of debate is most valuable.”
This week the bill is receiving detailed scrutiny in the Lords. After two reports from the Commission on Civil Society and Democratic Engagement demanding changes, the government does look set to increase the spending threshold over which campaign spending becomes regulated. By how much will, of course, be critical. Ministers are also conceding they will hold a review of the system after the next general election.
Both these promises have been met with cynicism from Labour. It is enraged by the government’s failure to amend the bill this week. Instead the changes are likely to come early in the new year, when – with the disorganised crossbenchers slowly returning from the festive break – ministers are more likely to win a vote.
This is how the bigger-picture changes in the bill could become law. We could see an extension of what constitutes ‘controlled expenditure’ to cover a much wider range of activities including rallies, meetings and polling. Every group campaigning as a coalition could be forced to register the total spending of the coalition as a whole.
“We are talking about something which faces a criminal sanction if you break it, so I think one is right to expect a degree of certainty,” complains James Legg of the Countryside Alliance. He believes his organisation’s campaign against fox-hunting in the 2005 election would have been effectively shut down had the coalition’s changes been in place.
Legg fears that nightmare could become reality in 2015. “The government could simply say ‘we’ll introduce that now’, and that would shut us up,” he says.
The battle against the ‘gagging bill’ is not yet lost, but it’s a bleak outlook for Britain’s democracy this midwinter.
Despite the bill passing its second reading by 309 votes to 247, Sky News reported that “the comfortable margin masked significant opposition across parties.”
The Guardian provides a rundown of the key questions related to the bill, including the cause of the controversy: “Charities are unhappy that their political campaigning could fall under restrictions for the first time. Legal advice obtained by the National Council of Voluntary Organisations said it could have a chilling effect. Helen Mountfield QC warns of uncertainty about what the bill means by ‘for political purpose’, saying it could ‘put small organisations and their trustees/directors in fear of ‘criminal penalty if they speak out on matters of public interest and concern’.”
A near-united NGO sector has slammed the proposal. “The Lobbying Bill represents a real threat both to the quality of debate on public policy in this country and charities’ ability to champion the needs of the poor and vulnerable through campaigns such as Make Poverty History,” said Oxfam.
‘What began as a bid to clean up politics and make the process more transparent has ended up as an attempt to restrict people and individuals engaging in politics and exercising their democratic rights of free speech,’ said anti-fascist group HOPE not Hate.
‘The government’s rushing through a new law which, if it passes, will stop us running the type of campaigns which have made us who we are during the year leading up to elections. Put simply, the new rules will make it almost impossible for campaign groups, charities and others to campaign in the way we do during the year before elections,’ said 38degrees.
The National Council for Voluntary Organisations have now written to Chloe Smith, the minister in charge of the bill, outlining their concerns. A coalition of conservative think tanks, including the Adam Smith Institute, Big Brother Watch, Centre for Policy Studies, Institute of Economic Affairs, Taxpayers Alliance have criticised the “significant failings” of the bill: “The lack of clarity in the legislation further exacerbates its complexity, while granting a remarkably broad discretion to the Electoral Commission. The potential tidal wave of bureaucracy could cripple even well-established organisations, while forcing groups to reconsider activity if there is a perceived risk of falling foul of the law. This self-censorship is an inevitable consequence of the bill as it stands.”
Moreover, the Electoral Commission have stated the bill raises “real questions around freedom of speech” reported The Independent. “There may be circumstances where we would need to ask someone to take down a blog or a website or stop a rally from happening. That is a significant intervention for the Electoral Commission to take. [But] the change to our remit does give us greater discretion. That gives us significant concerns.”
The bill has also come in for massive criticism from the opposition, with shadow Commons leader Angela Eagle dubbing it “one of the worst pieces of legislation I’ve seen any government produce in a very long time”, the BBC reported. “It’s a sop to powerful, vested interests; a sinister gag on democratic debate in the run-up to the general election; a shameful abuse of the legislative process to make cheap, partisan points. This is a very bad bill,” she adds.
Independent columnist Owen Jones argues the bill is undemocratic: “Warnings of threats to democracy should be sparingly issued: they contain the risk of undermining an argument through hyperbole, of making us numb to genuine menaces. But be under no illusions: the Government’s catchily titled Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill is an audacious stab at many of our hard-won democratic freedoms.”
Meanwhile, Conservative MP Douglas Carswell adds that the bill does little to tackle the problem of lobbying: ‘My main concern, however, is what is not in this Bill. Big corporate interests serious about changing public policy don’t mainly focus on Parliament. They go up the road to Whitehall. It is there that the nexus of influence between big corporate interests and big government lies. The Bill does little to change any of that, and fails to sort out the revolving door between big Whitehall departments and various vested interests. Who inputs directly into the civil servants as they draft policy and rules? Who has a quiet word with the new non-executives at the department? We do not know.’
Labour’s Stephen Doughty, in one of the more colourful addition to the Commons debate, stated that the bill has “whiff of Zimbabwe”.
Andrew Lansley, sponsor of the bill has defended it as tool for making “our democracy more accountable”: ‘The Transparency Bill has three key aims: to make it clear who is lobbying the Government and for whom; to make third-party campaigning at election times subject to clear rules; and to provide assurance that trade unions know who their members are.’
Chloe Smith also attempted to calm some of the charities’ fears: “At the 2010 General Election, very few charities were registered as third parties. Provided they continue to campaign as most of them always have – that is, they are not promoting the electoral success or otherwise enhancing the standing of parties/candidates – charities will not be affected by this legislation,” Smith added.
You can read a transcript of the Commons debate here , or watch it here from 12.47.