The Lobbying Act: A Waste of

Time and Resources?

A General Election Special Report

February 2015
Karen Barker & Tim Harrison
0207 426 8888

Contents
1. Introduction
2. Methodology
3. Large investment of resources
4. Concerns over breaking the law
5. Increasing reputational risk
6. Fundamental conflict
7. How likely is a test case?
8. The positives of the Lobbying Act
9. Conclusions & recommendations

Special General Election Report

Introduction
I suspect this was a piece of legislation that got a bit out of hand they created
a monster.
-

Head of Public Affairs, health charity

Richard Grasso, the former Chairman of the New York Stock Exchange, once said: Clearly
there are always unintended consequences of any legislative or regulatory act that's taken in
the heat of battle. We are not sure whether Grasso literally meant times of war, or the
constant fray of political fighting which characterises our political systems on both sides of
the Atlantic. Whether or not the third sectors coordinated arguments against the Lobbying
Act elevate its passage through Parliament to the heat of battle is another debate, but
what our research has shown unequivocally is that this legislation has had a myriad of
unintended consequences. The main consequences are overlapping and largely stem from
the confusion of what this legislation actually means. We encountered a huge spectrum of
understandings and interpretations in our interviews and many saw it as increasing the
reputational risks that charities face. These potential risks are detailed in this report, along
with the unintended consequences.
This report grew out of nfpSynergys own efforts to understand the Transparency of
Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 (Lobbying Act).
It was passed in early 2014, and full guidance was published by the Electoral Commission in
late summer. nfpSynergy began this project by attempting to write our own guidance for
charities on which of their activities were most likely to be impacted in the run-up to the
general election. However, it soon became clear that the vagueness of some of the guidance
from the Electoral Commission actually makes creating recommendations for charities a
difficult legal issue. From conversations with members of the Charity Parliamentary Monitor,
we knew that many were seeking legal advice for their organisations. In light of this, we
realised that rather than adding to what one client called the noise created by manifold
(and often conflicting) advice issued by many third sector bodies, it would be more useful
(and interesting) to explore how charities were actually engaging with, and being impacted
by, this legislation.

Methodology
-

This report is based on 19 in-depth interviews with public affairs and campaigning
professionals working for 19 different charities in the UK. These interviews took place
on the phone between 15th October and 20th December 2014. The charities range from
some of the largest in the UK to some with an annual income of less than 1 million.
The Lobbying Act is a sensitive topic and several interviewees expressed concern that
speaking to us on the record about it could constitute a regulated activity under the
Act. Due to these concerns, we have not included any of the names of individuals we
spoke to, the organisations they work for or their specific job titles.
Interviewees are described as either Head of Public Affairs if they hold a senior
managerial position within the public affairs or communications teams, or Public Affairs
Officer if they hold a more junior role.

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Large investment of resources

There could have been far more discussion in a constructive way, without
charities now having to waste their time on interpreting the law and thus not
spending time on achieving their charitable goals.
-

Head of Public Affairs, social welfare charity

Many people we spoke to felt that the drain on resources was the biggest impact of the
Lobbying Act on their organisation. Coming to grips with this legislation has cost them
money (in the form of fees paid for legal advice) and staff time (interpreting the legislation,
attending meetings with other organisations, conferring with the Electoral Commission,
writing internal guidance and disseminating it throughout the organisation), both of which
would have otherwise been used to further the organisations charitable goals.
The amount of staff time and money spent varied widely amongst organisations, but all of
them expended some resources on engaging with this legislation, and some public affairs
professionals expressed concerns at the amount of their own time that has been required
over the past year. One Head of Public Affairs from an international development charity
explained: We have spent a huge amount of time going through every line, every phrase
and worried that for smaller organisations lacking resources, this burden could be crippling.
If an organisation does not register with the Electoral Commission, and is never subject to
an investigation, the resources invested in interpreting the Act this year are a one-off.
However, those which have registered with the Electoral Commission will face an ongoing
administrative commitment to monitor and report all regulated activities in the run-up to the
general election. The Head of Public Affairs for a social welfare charity described the
administrative burden of being registered as both overwhelming and unnecessary. She
went on to explain that she knew of at least one charity which was seeking to de-register
with the Electoral Commission as they felt the administrative burden was too heavy.
To an outsider, describing the administration associated with this legislation as
overwhelming may seem hyperbolic. After all, how much time can a bit of extra paperwork
really cost a charity? The answer is, we found for some charities, a great deal. The breadth
of activities potentially covered by this legislation means that many charities have put in
place new structures to evaluate and measure any activity which may be regulated. One
common change to internal practice included keeping a log and account of the cost for any
external communication, including Facebook posts, blogs and tweets. Another was a
tightening of monitoring of any external communication, with senior staff required to review
all external publications before they were published. In one extreme example, any blog
article by any member of staff which could be seen as political would be sent to the CEO of
the charity for review before publication. Many of the changes in structures we were told of
within organisations will have significant and lasting impacts on staff time.
An increased administrative burden may be a concern not just to those within a charity, but
also to its supporters. Our research with the general public consistently shows that donors
are not supportive of high administrative costs. Indeed, the most off-putting factor for the

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general public when considering giving to charity is too little money going to the cause.1
Charities already face significant challenges in communicating with their supporters about
the administrative necessities of running the organisation. They certainly do not welcome
any legislation that creates new administrative requirements.

Charity Awareness Monitor, nfpSynergy, 2014.

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Concerns over breaking the law

Many charities are saying 'please not us, with regard to the test case.
-

Head of Public Affairs, social welfare charity

A charity could fall foul of the Lobbying Act in two ways; intentionally or unintentionally. In
all of our interviews, it was clear that no charity would be intentionally seeking to breach it.
One interviewee explained that this was because the third sector is risk averse. This was
echoed by several interviewees, who explained that the structure and governance of
charities has a great deal of caution built into it. One Head of Public Affairs from a social
welfare charity said:

Were not going to stick our heads above the parapet. It would be a difficult thing to
square with your trustees how this would be a part of your core charitable aims.
While her organisation would support repealing the Act, she was very aware that her
trustees would not be supportive of expending charitable resources on challenging it. Many
other interviewees explained that their organisations were going to great lengths in an
attempt to ensure they would not breach the Lobbying Act and become the test case (the
first example of an organisation being investigated). In addition to the negative reputational
consequences of being investigated by the Electoral Commission, charities are concerned
that such an investigation would be a huge burden on its resources in terms of staff time
and other potentially significant costs, like legal advice. For these reasons, not a single
charity we spoke to suggested they felt willing to stick their heads above the parapet.
It therefore seems very unlikely that a charity will intentionally breach the Act. However,
there is a great deal of concern in the third sector that a charity could unintentionally breach
it. Two main ways in which a charity could do this came up repeatedly in our interviews. The
main concern that many had was that the legislation (and guidance) is so vaguely (and
therefore potentially broadly) defined that it is difficult to know which activities would breach
the Act and which would not. The second concern is that charities which are made up of
federated local branches could be investigated if one branch (or even one employee in one
branch) was in breach of the Act, whether it was intentional or not.
The first concern is fueled mainly by the vague definitions given in the guidance to this
legislation. The Lobbying Act uses two definitions to determine which activities may have
their funding regulated: the purpose test and the public test. The purpose test is defined
as:
They [the activity or campaign comprised of multiple activities] can reasonably be regarded
as intended to influence voters to vote for or against political parties or categories of

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candidates including political parties or categories of candidates who support or do not
support particular policies or issues.2
The public test is defined as:
If the activities are also aimed at, seen or heard by, or involve the public.3
The vagueness of the purpose test has led to a wide spectrum of reactions within the third
sector. Amongst the sector professionals we interviewed, engagement with the Lobbying Act
ranged from sanguine to incredibly anxious. We found that the way in which different
organisations staff (and in many cases legal teams) interpreted the purpose test determined
how concerned they were about the possibility of falling foul of the Act. One Head of Public
Affairs for a health charity was reassured by the use of the word reasonably in the
definition: What would a reasonable man do? We need to have common sense about this.
We have internal guidance, but most legal guidance is that this [the Act] is nonsense. This
manager, along with this organisations legal team, believes that a reasonable person could
not interpret any of their campaigning activities as seeking to influence voters, and is
therefore assured that the Act does not apply to them.
Many interviewees also felt this legislation had been pushed through too quickly, forcing the
Electoral Commission to scramble to produce guidance in a short space of time, meaning
there was not enough consultation. Not enough reassurance [to charities] (Head of Public
Affairs, Social Welfare Charity). Many of the larger charities we spoke to expressed concerns
that smaller charities, lacking the resources to seek legal guidance, may be frightened into
scaling back or ceasing their campaigning activities completely. The public affairs
professionals we interviewed believe passionately in the importance of charities taking part
in public life and political discourse in our society, and many felt it would be a tragedy if the
Lobbying Act obstructed the ability of any charity to do so.
Several interviewees felt that MPs may come to regret this legislation as it curtails the ability
of charities to engage with them in ways which MPs rely on. Many of the charities we spoke
to were scaling back the profile they gave to MPs who support them, with several
organisations removing the names of candidates who support their campaigns from their
websites completely.

Electoral Commission Guidance for Third-Party Campaigners. See

http://www.electoralcommission.org.uk/i-am-a/party-or-campaigner/non-partycampaigners/guidance.
3
Ibid.

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Increasing reputational risks

I suspect MPs dont realise what theyve done. And they have as much to lose as
we do.
-

Head of Public Affairs, health charity

The Lobbying Act presents serious risks to charities. The most obvious is that a charity will
break the law. Many of those we spoke to had received advice directly from the Electoral
Commission, and these organisations felt assured that, rather than taking a punitive stance
on a charity in breach of the legislation, it would work with the charity to bring them back
into compliance. In terms of worst possible outcomes, one Head of Public Affairs for a health
charity suggested a strongly worded letter was the most likely, while another Head of
Public Affairs for a different health charity was even more blunt: What are the implications
if you are seen to have gone over the line? Youd have to register. You arent going to
prison.
Although the material outcomes from an investigation are seen to be minor, the possibility
of being investigated for breaching the Lobbying Act still creates huge anxiety in the third
sector. Put simply, no charity wants to be seen to be investigated by the Electoral
Commission; being investigated for breaking the law is too far removed from representing
your beneficiaries. The reputational damage of such an investigation to a charitys brand
could long outlast the investigation itself.
In our research with influencers, we know a charity being political is seen as a negative
attribute. During our October 2014 research with journalists who work with charities, many
of them conflated political and bad when answering a question about the key barriers
faced by different charity sectors.
A journalist from the Daily Express stated that: These charities [environment and
conservation], especially ones connected to climate change (both sides) are seen as too
political and rabid in their views. Another journalist from Channel 4 News cited being seen
as overtly zealous and political in their campaigns as a key barrier for animal welfare
charities as well.4
Similarly, in our July 2014 survey of MPs regarding their views on specific charities, ,
negative views often stated that particular organisations are political. One Conservative MP,
when asked to comment on a social welfare charity, said this organisation was too political
and confrontational. Commenting on the same charity, a Labour MP also felt they were too
political.5
The quotes above are just a few illustrative examples of the hundreds of similar statements
we have collected from journalists, MPs and Peers over the years. When an organisation is
labelled as political, it is usually seen as a negative thing. It sits alongside adjectives such
as rabid, zealous and confrontational a far cry from working for beneficiaries, fulfilling
charitable goals and helping the most vulnerable in society.

4
5

Journalists Attitudes and Awareness Monitor, nfpSynergy. October 2014.

Charity Parliamentary Monitor, July 2014.

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It is therefore not surprising that charities are extremely anxious about the prospect of
being publicly investigated by the Electoral Commission, as this would almost certainly lead
to them being seen as political. As one Head of Public Affairs for an animal welfare charity
explained : This isnt a legal issue. This is a perception issue. If a charity is perceived to be
too political, this can cause lasting damage to its ability to work with journalists and MPs,
as well as to its levels of public trust. Charities are right to be concerned about this. We see
in our research that the label political does get attached more regularly to certain
organisations. Once an organisation is branded as political, it may continue to dog its brand
for years, causing lasting reputational damage.

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A fundamental conflict?
There is a fundamental clash between the Electoral Commission and the Charity
Commission. How can we register as third party campaigner with the Electoral
Commission when the Charity Commission requires us to not seek to influence
voters/be political?
-

Head of Public Affairs, social welfare charity

While some journalists and MPs increasingly view some charities as political, a large number
of the third sector professionals we interviewed stressed that not only do they believe that
charities are not political, but that being political is contradictory to the very definition of
what a charity is. The crux of this difference of opinion may be partly to do with how the
word political is defined by both audiences. Many of the third sector interviewees defined
political as seeking to influence voters in support of a particular candidate or party. This
could also be referred to as being party political. All of the people we spoke to were very
clear that their organisations would never seek to do this. The campaigning activities they
undertake are never to encourage support for a candidate or political party, but rather an
attempt to further their charitable aims. One Public Affairs Officer for a social welfare charity
explained the difference this way: On a personal level, the reason I work for charities is not
because they are party political. It is because you want raise issues with decision-makers.
This [the Lobbying Act] stops that and will stop charities being political. It changes the way I
think about my job. This person makes a key distinction between being party political and
political in the sense of engaging in the political process.
Charities often engage in the political process by highlighting issues that are of concern to or
that impact their supporters or beneficiaries. In our 2014 surveys, 96% of journalists and
77% of MPs felt it was either very acceptable or somewhat acceptable for charities to
highlight the effects of a policy on their beneficiaries. Over half (56%) of the general public
also found it acceptable (20% thought it was neither acceptable or unacceptable, and only
9% found it somewhat or very unacceptable).6 So, if highlighting the effects of beneficiaries
is seen as acceptable by a majority of people across audiences, how do charities come to be
seen as political?
From the point of view of MPs, especially those in power, it is perhaps not surprising that
some charity campaigning can feel party political. If your party has implemented policy X,
and a charity issues a statement saying that there has been negative impact on their
beneficiaries as a result of X, it is understandable (though perhaps not always reasonable)
that you may feel said charity is undermining your party. You grow angry, and accuse the
charity of being too political. The charity strongly maintains they are doing no such thing.
In the past, an aggrieved MP could have made a complaint to the Charity Commission, but
now, there is an additional avenue; the Electoral Commission. This is the nightmare scenario
for quite a few of the third sector professionals we spoke to. As one Public Affairs Officer for
a social welfare charity succinctly put it: How do you mitigate against someone making a
complaint? With this legislation, many people we spoke to felt it might only take one person
making a complaint to launch an investigation, which would prove expensive and damaging
to their organisation. Theoretically, one complaint from one angry member of the public

Journalists Attitudes & Awareness Monitor and Charity Parliamentary Monitor, nfpSynergy, 2014.

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could create an investigation by the Electoral Commission, leading to a charity being
accused of being politicalThe reputational risks are potentially huge.
There is another, more fundamental concern that many people we spoke to have; the belief
that this legislation places charities in an impossible situation. The Charity Commission
guidance is very clear that charities cannot be party-political:
A charity cannot exist for a political purpose, which is any purpose directed at furthering
the interests of any political party, or securing or opposing a change in the law, policy or
decisions either in this country or abroad.7
The Electoral Commission exists to regulate party politics. Many people in the third sector
therefore worry that registering as a third-party campaigner with the Electoral Commission
will be seen as tacitly admitting that your organisation is seeking to influence voters, the
very thing that Charity Commission guidance forbids them to do. To some in the sector, this
legislation has created an awful catch-22 whereby not registering with the Electoral
Commission could lead to an expensive and damaging investigation, but registering may call
into question their very status as a charity.

Speaking out guidance on campaigning and political activity by charities (CC9), Charity Commission,
2008. See more at: http://forms.charitycommission.gov.uk/detailed-guidance/managing-yourcharity/speaking-out-guidance-on-campaigning-and-political-activity-by-charitiescc9/#sthash.KtBbaSyx.dpuf.

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How likely is a test case?

Are the Electoral Commission waiting for complaints or actively going out
hunting for charities breaking the law? The sector stands together, but if others
start to register, then they will have to consider it.
-

Head of Public Affairs, social welfare charity

As with the other implications of the Lobbying Act, we found a wide variety of opinion within
the third sector about the likelihood of a test case . Some people we spoke to were
absolutely convinced there would be one, while others felt it was very unlikely. Without a
crystal ball, it is obviously impossible to say for certain. In an attempt to clarify the situation,
nfpSynergy submitted a Freedom of Information request to the Electoral Commission in
November 2014 and in January 2015 asking if they had received any complaints/referrals to
investigate any charities, and whether any charities were being or had been investigated.
The Electoral Commission responded on 19th January stating that they were not
investigating any charities, though they had received queries. In their own words:
Although we have received queries as to the provisions and whether certain activity or
behaviour is in compliance with the Transparency of Lobbying, Non-Party Campaigning and
Trade Union Administration Act 2014, none of these instances have identified as being a
breach of the legislation. We therefore do not refer to these as allegations or complaints
requiring investigation. On this basis, the Commission has not received any complaints or
referrals which have required investigation.
nfpSynergy will continue to submit Freedom of Information requests to the Electoral
Commission until the general election. The reality (as of 19th January) is that, despite the
anxiety and the resources directed towards this legislation by the third sector, no charities
are currently being investigated.
There are currently 45 third-party campaigners registered with the Electoral Commission,
over a third of which are unions, individuals or for-profit consultancies. The rest are charities
already bearing the higher administrative burden of being registered. If a test case does
occur, the outcome of that case would determine whether other organisations would feel
pressure to register as well. As the quote above shows, some interviewees also felt that the
more charities that registered, the more pressure the others would feel to register.

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The positives of the Lobbying Act

Some people are worried that MPs have a negative view of charities
campaigning. Because of the Lobbying Act, weve been having more
conversations with MPs about these things. Weve had reassuring conversations
with MPs.
-

Head of Public Affairs, social welfare charity

The vast majority of those we interviewed for this report felt that the Lobbying Acts impact
on the third sector had been negative. It is, however, important to note that we heard about
some positive outcomes from this change in legislation. A few interviewees felt that the
process of reviewing how their organisation vets external communications had been helpful,
and ultimately led to their organisation feeling more confident that they were employing
best practice in their communication strategies.
One interviewee (quoted above) felt that this legislation prompted conversations with MPs
which actually strengthened their campaigning relationships, because MPs were quick to
assure her campaigning team that they felt its activities were both effective and necessary.
While it is important to acknowledge that some individual charities may feel more confident
in their communication strategies as a result of the Lobbying Act, several of these charities
also pointed out that the confidence they feel could soon vanish in the event of a test case
and/or further guidance from the Electoral Commission. Many interviewees felt that charities
could only be completely clear where they stood in relation to the Act after a test case.

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Conclusions & recommendations

The Lobbying Act has loomed large over the third sector for more than a year. Many of the
public affairs professionals we interviewed were keen to see our research move the
conversation about this legislation forward, rather than simply re-iterating concerns which
have been circulating for months. We feel that summarising some of the key impacts the Act
has had on charities has been a valuable exercise, but it has also crystalised two areas ripe
for improvement: the definition of the purpose test, and engagement with smaller charities.
Our recommendations for how to improve these areas is detailed below.

Recommendation 1: Re-define the purpose test

There is a huge variation within the third sector of how people interpret and engage with
this legislation. In order to control unnecessary administrative expenditure, reduce the
possibility of a charity unwittingly breaching the act and allay the anxiety currently causing
some charities to scale back vital campaigning activities, all charities of all sizes need to be
on the same page as the Electoral Commission when it comes to how this legislation can
and cannot be applied to their activities. We believe the simplest and clearest way to
achieve this objective would be a tightening of the Electoral Commissions definition of the
purpose test.
Many of our interviewees were keen to stress that they felt the Electoral Commission had
been helpful, and it is clear that they have been actively consulting with the sector since this
legislation was passed. This recommendation is not meant as a criticism,. It is meant as a
suggestion that further consultation with the third sector is necessary in order to alter the
definition of the purpose test so that it is clear to all charities, both large and small, which
activities may or may not be regulated.

Recommendation 2: Reassure small charities

Our second recommendation is that the Electoral Commission undertakes more proactive
engagement with smaller charities to reassure them that most will be unaffected by this
legislation, as the spending threshold is set far in excess of what most might spend on
regulated activity. This engagement might take the form of guidance, webinars and roundtable events aimed specifically at charities with an income of less than 1 million. Charities
of all sizes have an important role to play as advocates for their beneficiaries and it would
be a great blow to civil society if smaller charities ceased to speak up politically because of a
lack of understanding of the Lobbying Act.

Final thoughts
The conversation surrounding the Lobbying Act is far from over. We have found from our
research that the Act has already had significant impacts on the third sector in the form of
investment of resources. How the conversation progresses will be largely determined by
whether or not there is a test case. nfpSynergys long-term monitoring of charity brands tells
us that if there is a test case, the charity in question is likely to suffer reputational damage
by being branded political, which may continue for several years. The Electoral
Commission and the Charity Commission may also have to clarify whether such an
investigation would highlight what some within the third sector see as the fundamental
conflict between the respective guidance from both bodies. While some charities have found
positive outcomes from the new legislation, such as re-evaluating their external

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communication structures, many have felt that the Act serves as a far greater hindrance
than a help.
We believe that our recommendations would serve to alleviate some of the greatest
concerns about the Act in the short term. In the medium to long term, only a test case will
truly clarify the situation. Whatever happens with the Lobbying Act in the coming months,
we hope that all charities and causes continue to be a voice for the issues, be they
vulnerable people, special places or threatened animals, which may not otherwise receive
the political attention they need and deserve.

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About nfpSynergy
nfpSynergy is a research consultancy that aims to provide the ideas, the insights and the
information to help non-profits thrive.
We have over a decade of experience working exclusively with charities, helping them
develop evidence-based strategies and get the best for their beneficiaries. The organisations
we work with represent all sizes and areas of work and include one in three of the top 100
fundraising charities in the UK.
We run cost effective, syndicated tracking surveys of stakeholder attitudes towards charities
and non-profit organisations. The audiences we reach include the general public, young
people, journalists, politicians and health professionals. We also work with charities on
bespoke projects, providing quantitative, qualitative and desk research services.
In addition, we work to benefit the wider sector by creating and distributing regular free
reports, presentations and research on the issues that charities face.

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