Free speech, costly consequences – what next for the Lobbying Act?

It’s four years on since the introduction of the “Transparency of Lobbying, Non-Party Campaigning and Trade Union Act 2014” (better known just as the “Lobbying Act”).

And yet, many of us are still grappling with the boundaries of what’s permitted – and what isn’t – ahead of a general election.

A chilling effect

At a workshop last month, led by the good folks at Campaign Collective and hosted by Universities UK, myself and colleagues from across the sector were challenged to consider the perils and pitfalls of lobbying and influencing for English universities.

The Lobbying Act is now (in)famous for having tightened up the rules for so-called non-party campaigners (disproportionately affecting charities – which are expressly permitted under charity law to campaign to further their charitable objectives), risking what has been described as a “chilling effect” on legitimate participation in political debate. Many universities have charitable status, and the rules apply to any providers who choose to participate in non-party campaign activity – so the effect of this is significant. While some will be familiar with the concept of a pre-election hiatus period (between the announcement of an election and election day) and the frustrations it can cause – for example, having to postpone the much anticipated findings of government-funded research – the restrictions imposed by the Act are much more wide-reaching and have many potential consequences.

According to a survey undertaken by the Sheila McKechnie Foundation, 87 per cent of charities believe that government measures, such as the Lobbying Act, are threatening the legitimacy of campaigning, and 63 per cent observe greater caution amongst senior managers and trustees. With an ever-increasing number of universities choosing to invest in public affairs as a means of achieving strategic objectives and advancing collective arguments about the wider value of higher education, now more than ever we need to find the right balance and approach to our activities within the political sphere.

Easier said than done?

One of the major stumbling blocks thus far for the Lobbying Act is that the rules are complex to interpret and apply. The provisions come into force during any “regulated period” ahead of an election, so for UK parliamentary elections, this period lasts for one year. That seems straightforward, but bear in mind this can be applied retrospectively in the case of a snap election (as was the case in 2017), making it nigh on impossible for organisations to guarantee compliance.

Next, to determine whether an action counts as regulated campaign activity, there are two gateway tests set by the Electoral Commission;

• The “purpose test” i.e. could the activity be regarded as intending to influence voting behaviour?
• The “public test” i.e. are these activities observed by the public?

This may include, for example, embarking on a new and different campaigning priority during the regulated period, or speaking out after the event on policy decisions that align more closely to one political party than another. Another consideration is how the tests are applied – the rule of thumb is that they apply only if a reasonable person thinks they would. Are you feeling reasonable?

Given the plethora of issues on which universities speak out about on a daily basis, often extending far beyond higher education to many areas of research expertise, it is easy to see where the risks lie.

What does this all mean for universities?

While these conditions present a number of new challenges and considerations for all those affected by the Act, there are particular challenges for universities in seeking to abide by the rules – firstly, there is a lack of tested application of the Act within an HE setting from which we can learn, leaving a sense for many that they are feeling their way; secondly, there are (at least) two key tensions between the Act and the priorities of universities.

Straight in at number one, we have academic freedom – fundamental to the endeavour of universities, the freedom for academics to explore and comment freely on ideas without risk of reprisal is core to our purpose and mission. Yet the Lobbying Act is a blunt instrument in this respect, making no allowances for this distinct feature.

Next, we come to free speech on campus – while the ink is still wet on a recent parliamentary report concluding that fears of this coming under threat are exaggerated, there remains a high level of vigilance from various quarters to ensure that the premise of free speech is protected in universities. Again, the Lobbying Act risks challenging this premise, by placing restrictions on what can and can’t be said in a public space ahead of an election.

Risks of non-compliance

The Electoral Commission’s emphasis is to encourage charities to adhere to the rules, so their first step in the case of non-compliance would be education and support. Beyond that, financial penalties may be imposed. Greenpeace became the first to be sanctioned under the Act for refusing to comply in the lead up to the 2015 general election and was fined £30,000.

However, the conditions under which organisations might be penalised remain unclear and, for universities in particular, there is an absence of any case law guiding us as to how the rules might apply. Take a hypothetical example – a university might, for instance, publish publicly-funded research on social attitudes towards Brexit only for a snap election to be called. Should the evidence then be used more widely by one political party than another, then what happens? As things stand, the activity may meet the criteria for both the purpose and public gateway tests, yet is a commonplace and indeed likely scenario for many academic institutions.

What next?

While it is too late to influence the provisions of the Act, and in any case seeking allowances for universities may appear self-serving given that there are many reasons why we would want to stand alongside others in protecting the principles of participation in democratic debate.

Instead, what might be helpful is improved guidance as to how the rules can be interpreted and applied. As a sector, we can help this endeavour by providing examples to the Electoral Commission – for instance, to seek clarity on how we can ensure that academics have the freedom to speak out in their areas of research expertise, even if it is political in flavour; or how we can continue to provide legitimate platforms for the exploration of ideas, while remaining within the parameters of the law.

Let’s hope that in time – with the help of some good case law and a good helping of common sense from all those reasonable people – the view becomes clearer for the universities and all those affected by the Act. In the meantime, Campaign Collective’s Freedom to Campaign guide is an excellent tool to help us stay on the right side of the tracks.