The government’s recent announcement on lobbying was soiled by its unexpected inclusion of an attack on trade union support for the Labour Party, writes Keith Ewing. Apparently the government is proposing that any money spent by an affiliated union campaigning at an election is to be treated as not as a ‘third party expenditure’ as at present, but as an expenditure by the Party for the purposes of electoral law. It will also count towards the Party’s electoral spending limit.The full details of this proposal are to be announced in a few weeks time as part of the government’s response to the recent lobbying scandals. But even its own backbenchers have been heard to wonder about the connection between lobbying on the one hand and trade union election spending on the other. Nevertheless, while civil servants are preparing their consultation paper, let me at this stage throw some gristle into the pot for them to chew on.
It is important to emphasise that the government’s proposal appears to be that union expenditure will be treated as Party expenditure whether or not the Party has approved it, and whether or not the Party benefits from it. As such, the proposal looks like it has been lifted straight from anti–union political funding legislation recently introduced in New South Wales, and now the subject of a legal challenge by Unions NSW in the High Court of Australia.
Not only is the Coalition’s proposal an aggressive political stunt designed to deflect attention from the government’s own failings on lobbying, it is also a disgraceful and unprecedented example of government proposing to use the power of the State in breach of ‘an established custom’ recognised by Churchill in 1948, that ‘matters affecting the interests of rival parties should not be settled by the imposition of the will of one side over the other’.
The proposal is all the more remarkable for the fact that it has never formed part of the discussions or the recommendations of any of the recent party funding inquiries. There is no mention of it in the controversial Hayden Phillips report, nor in the more recent equally controversial report of the Kelly Committee. Both of these documents recognized that while affiliated unions are members of the Labour Party, they are institutionally distinct from it.
That apart, the proposal is almost certainly unlawful in this country, as it is said convincingly to be in Australia. In this country, the potential grounds for illegality are if anything even stronger, with the right to freedom of expression explicitly protected by Article 10 of the European Convention on Human Rights (ECHR), the provisions of which were incorporated into domestic law by Labour’s controversial Human Rights Act 1998.
Its seems to me that the government’s proposals will be open to challenge from two angles: the first is from affiliated unions which alone of electoral participants will be effectively gagged for a year before an election, unless they do one of two things. Either they can disaffiliate from the Party to retain their electoral freedom; or they can seek the approval of the Party to incur an expenditure that will be attributed to the Party.
The right of freedom of expression of trade unions is thus made conditional. It is conditional on not exercising their right to freedom of association by affiliating to the Labour Party in the first place. And if unions exercise their right to freedom of association, it is conditional on securing the permission of the Party to exercise their right to freedom of expression. It is implausible to believe that freedom of expression can be contingent in this way, all the more so when the contingency applies in such a transparently discriminatory manner.
But it is not only affiliated unions that will have cause to complain: so will the Labour Party itself. The Labour Party’s case will arise where a union incurs expenditure without its approval, which will nevertheless be treated as the speech of the Party, even though the Party is opposed to the speech in question. This cannot be consistent with the idea of freedom of expression, which is designed to enable me to say what I think, not to hold me responsible for what someone else may think. It is grotesque.
The violence directed at the Labour Party and the legal claim on behalf of the Party is aggravated not only by the fact that no other political party will be subject to this indignity. The aggravation is reinforced by the fact that the Party will have to spend money from its limited budget to repudiate views attributed to it, with which it must nevertheless dissociate itself. Being deemed to have spoken the words of others is thus not simply a philosophical concern; it is potentially a matter of real political consequence.
The Lib Dems as Coalition partners have an opportunity to nip this nonsense in the bud, and to rescue both Churchill’s constitutional convention, as well as human rights obligations to which the party purports to adhere. It is difficult to comprehend a more serious violation of human rights in the electoral sphere than a de facto ban on electoral free speech. All the more so if the government’s proposals are to apply to both the Party and its candidates, so that trade union spending in a constituency is to be treated as that of the candidate.
Having opened this box, however, if the Lib Dems are serious about third party influence at elections, they will know that the real problem has little to do with trade unions. The real problem lies with the immunities enjoyed by the biggest third parties of them all, the media corporations which have an express exemption from all legal limits, and are subject to no controls at election time, free to spill out partisan bile with impunity. Why are the companies that are owned by Murdoch and Rothermere above the law in this way?
And perhaps the Lib Dems might recall this. Unlike the election spending limits, the referendum spending limits introduced by Labour in 2000 did not give any exemption to the newspaper companies. This meant that like everyone else, their campaigning activities would be subject to a limit of £100,000 in a referendum campaign. This would mean in turn that - in the AV referendum for example - they would have to use their newspapers to report what was happening, rather than become partisans in the campaign.
But what did the Coalition do? It changed the law in 2011 to release the newspaper companies from this restriction, handing them the opportunity to pour toxins into the campaign without restraint, in what was a spectacular own goal by Nick Clegg. So my question to Clegg is this: if you are willing to allow foreign owned newspaper companies to campaign in an election, on what possible ground can you justify imposing a de facto ban to prevent organisations sustained by British electors from doing the same?