3 March 2015

By Keith Ewing, President, Institute of Employment Rights

Many readers will recall the great controversy that was provoked by the clumsily entitled Transparency of Lobbying, Non-Party Campaigning etc Act 2013 at the time it was passed. It is clear its purpose was to clear the pitch for the Tories, to allow them to dominate the election with their city-fuelled war chest.

Opponents – especially on the left – were to be gagged. So the Act introduces new controls on trade unions and other groups. If a union wants to spend more than £20,000 in the election in England (or £10,000 in Scotland or Wales), it must comply with more detailed and onerous disclosure and reporting rules.

In addition, trade unions are now subject to new restraints on how much they can spend in the election, regardless of how much is in their political funds, and regardless of the size of the union. At the national level each union can only spend up to £390,000 nationally.

This limit applies widely to any expenditure that can ‘reasonably be regarded as intended to influence voters to vote for or against political parties’. This overall limit is the subject to other limits – no more than £9,750 can be spent in each constituency – presumably to prevent unions and others using their budgets to flood particular seats.

Otherwise, there is a final limit in the sense if the spending is ‘targeted spending’, it is subject to a limit of less than £40,000. ‘Targeted spending’ means spending ‘on regulated campaign activity that can reasonably be regarded as intended to influence voters to vote for one particular registered political party or any of its candidates’.

Good luck trying to distinguish ‘targeted spending’ from other forms of ‘controlled spending’. But if a union wants to incur targeted spending in excess of the £40,000 or so limit, it will need the consent of the political party on behalf of whom it is undertaken, and will count as part of the party’s spending limit.

These provisions are wide-ranging and far-reaching. But as suggested there are loopholes and areas of unregulated activity. One loophole that appears to survive from the law introduced in 2000 is that trade unions are free to contact their members with election messages, including who to vote for messages.

This expenditure is not regulated. Controlled expenditure applies only in relation to activity aimed at the public, or a section of the public. As the Electoral Commission’s Guidance makes clear, this does not apply to material addressed by a trade union to its members.

This is because for these purposes, trade union members are not regarded as members of the public. According to the Electoral Commission, activities and communications ‘aimed exclusively at your members or committed supporters will not meet the public test and so will not be considered regulated campaign activity’.

Crucially this is a power that can be carefully targeted on marginals, where trade union members may make a difference in constituencies where there have been large local government redundancies or dissatisfaction with the health service. There is nothing to prohibit carefully targeted messages from unions to members encouraging them not to vote Tory.

The other major exception is explicit rather than implied. This is the exception for newspapers, which is of course a massive boost for the Tories. Not only can they outspend the other parties, and not only have their critics been gagged, but they can now rely on their reptiles in the press to weigh in with unlimited resources on their behalf.

The press battle will of course be greatly distorted with the great bulk supporting the Hard-Right (the Tories) rather than the Soft-Right (One Nation Labour). Trade unions will not be able to redress the balance with adverts in newspapers to correct the distorted messages, because of the limits on their campaign spending, which will be thinly stretched.

But there is nothing to stop trade unions engaging with the press on the Left to ensure that the message gets out. As the authoritative voice of the Left, this is an opportunity for the Morning Star to play a much bigger role, to enjoy much greater trade union support, and massively to increase its circulation, before, during and after the election.

It is true that trade unions will be constrained by the Gagging Act from increasing substantially their political adverts in the Morning Star. But there are lots of other things they could do to boost circulation and get the message out. So, it would be possible to increase their investment in the paper, it would be possible to publish op-ed pieces by leading officials, and it would be possible to sponsor special issues.

We have already had a fantastic example of special issues in the form of the employment rights issue last month. That could be sent to the home of every trade unionist. It provides a template for other issues, such as health, public services and local government, human rights and civil liberties, responding to UKIP and the far right, Europe, TTIP, and so on.

The Gagging Act is of course not the only limit on trade union election spending, with spending limits directed specifically at candidates rather than parties being covered by the Representation of the People Act 1983. But there are media and press exceptions there too.

It is true that care would need to be taken about the content of any messages sent to members or the location and substance of any meetings, in order to avoid liability under the 1983 Act. But this should be easy enough, provided the message to members focuses on the party rather than the candidate.

This article first appeared in the Morning Star on 28 February 2015