I am giving evidence to the Independent Commission on Civil Society and Democratic Engagement this afternoon.
A diverse coalition of prominent charities, campaign groups, academics, think tanks and online networks has launched an independent Commission in response to concerns about the Government’s Lobbying Bill.
The Commission on Civil Society and Democratic Engagement will investigate the impact of the proposed legislation following independent legal opinion that it will have a ‘chilling effect’ on charities and campaigning organisations speaking out on issues of public concern ahead of general elections.
Here is my statement:
OPENING STATEMENT OF MR TOM BURKE CBE TO THE INDEPENDENT COMMISSION ON CIVIL SOCIETY AND DEMOCRATIC ENGAGEMENT, COMMITTEE ROOM 18, HOUSES OF PARLIAMENT, OCTOBER 14TH 2013.
1. My name is Tom Burke. I am the Chairman of E3G, Third Generation Environmentalism. I am also a Visiting Professor in the School of Laws at University College, London. I have a number of other business, civil society and academic affiliations and previously served for five years on the Executive Committee of the National Council for Voluntary Organisations. I have worked on public policy issues for forty years in government and business as well as the voluntary sector and ran for Parliament in 1983 and 1987. I am appearing before you today in my personal capacity.
2. Part 2 of this Bill is misconceived in intent, carelessly drafted and being promoted with such indecent haste as to call into question the motives of its promoters. Its provisions are both an assault on the fundamental democratic right of citizens to hold their elected representatives to account and an affront to natural justice.
3. Its purpose is to prevent third parties from spending more than a very strictly limited amount of money on influencing the outcome of an election. But how is seeking to influence on the outcome of an election to be practically distinguished from seeking to influence public policy or from holding elected representatives to account for their votes in Parliament? The point of electing representatives to Parliament at all is to influence the content of public policy. Charity law has for a very long time provided a workable test for making this distinction by making it illegal for charities to support specific candidates or parties in their activities. No good argument has been advanced for not applying this well understood test to all third parties. There may be a case for requiring greater transparency as to who is spending what during an election other than political parties but this has not yet been made. Had Part 2 of the Bill focussed on this issue, for which there is at least some argument in principle, it would not now be running into the difficulties that have made it so controversial.
4. The promoters have consistently argued that fears that the Bill would inhibit democratic rights are exaggerated. They argue that it was not their intention ‘to prevent anyone from conducting their normal range of charitable and policy-based activity.’ ( Andrew Lansley ). If given in good faith these assurance seem unaware of the effect of Schedule 3 of the Bill on charitable and non-charitable organisations. The lack of clear and actionable definitions of what constitutes an ‘election material’ or ‘an election outcome’ and the absence of any clarifying case law mean that it is not possible for the Boards of Directors or Trustees of registered organisations to determine with confidence whether or not proposed activities during an election period are legal in which case they are required by electoral and company law not to approve those activities.
5. Furthermore, apart from being wholly arbitrary, the regulation of activities in the year before an election is a profound affront to natural justice. No-one knows, even in these days of fixed term parliaments, when an election will take place. Governments may lose the confidence of Parliament at any time in which case there would be a dissolution followed by an election. As the Bill stands, the activities of registered organisations in the twelve months before the date of the dissolution would be bound by the provisions of the Bill. Part 2 of the Bill would thus make people liable to criminal prosecution for activities which they could not logically have known were illegal at the time they were carried out. As well as being wholly incompatible with natural justice this provision will have the effect of requiring registered organisations to conduct themselves at all time as if they were in an election period. This could simply be remedied by applying the provisions of Part 2 only to activities carried out between the proroguing of Parliament and election day.
6. The intent of the Bill as a whole is to increase public trust in politics. I fear, at least as regards Part 2, it will have exactly the opposite effect. This is a modern version of the Combination Acts of the 18th and 19th Century. These were enacted to prevent individuals combining together to argue for better pay and conditions in their workplaces. The effect of these Acts was simply to drive collective bargaining underground and to increase mistrust and conflict between workforces and their employers. The Acts were eventually repealed when politicians of the day found dialogue to be more productive than repression. It seems this lesson must be learnt all over again. There are no more than 400,000 members of all the political parties in Britain. There are many millions of members and supporters of civil society organisations. It is now arguable who is best placed to understand and speak for the interests of our 60 million citizens. It is hard to supress the thought that the real intent of this Bill is to render the 400,000 less accountable to their fellow citizens.
October 13th 2013.