Choose Your Regulator: Why We Fail to Hold Campaigners to Account

Britain has rules for its political parties, its lobbyists and its charities. Yet some of the most influential organisations in public life like the think tanks and campaigning groups answer to remarkably few people. Whether they face a regulator at all depends less on what they do than on how they choose to be structured.

In May, the Good Law Project (GLP), one of Britain’s best-known legal campaigners, changed hands. Its founder, Jolyon Maugham, was replaced as owner by a ‘purpose trust’ in Jersey, set up there because English law only allows such trusts for charities. The aim, the GLP explained, was to keep the public-interest features of a charity while staying outside the political guardrails policed by the Charity Commission.

Nothing about this is illegal. The GLP stresses that it remains UK-resident for tax and keeps all its company law obligations. But it illustrates something odd about British public life: organisations that exist to influence policy can, in effect, choose their own regulator, or choose none.

There are three ways to hold a campaigner to account in Britain, and each depends on which legal structure it adopts.

The first is charity law. In 2019 the Charity Commission issued an official warning to the Institute of Economic Affairs (IEA), finding that a Brexit report had sought to change government policy in a way that went beyond its purpose as an educational charity. The warning was later withdrawn after a review found the Commission had made errors, a reminder that regulators are fallible too. But the IEA faced scrutiny because it was a charity. An organisation that never registers as one, or that builds a charity-like structure outside the regulator’s reach, faces none.

The second is electoral law. In 2018 the Electoral Commission found Vote Leave, the Brexit campaigning group, had overspent its £7 million limit by almost £500,000. As a result it was fined £61,000, constrained by a cap of £20,000 per offence. At the time, Maugham himself argued that the cap was too low to deter campaigners from bending the rules. He was right. For a well-funded organisation, a fine of that size is less a punishment than a cost of doing business. And the fine arrived two years after the vote, by which time the extra spending had done whatever work it was going to do.

The third is funding transparency, and it is voluntary. openDemocracy’s Who Funds You? project gave a third of the think tanks it audited its worst rating for disclosure and found £25 million a year in ‘opaque’ funding. No law requires them to say who pays.

The result is a patchwork that rewards structure over substance. A think tank that registers as a charity faces a regulator. One that registers as a company does not. A referendum campaign faces penalties too small to matter. And everyone can decline to say who funds them.

This matters because campaigning organisations are now among the most powerful actors in British public life. They bring judicial reviews, write the briefings MPs read, set the terms of media debates. Power of that kind should come with obligations that match.

The case for reform is not a case for silencing anyone. The Lobbying Act of 2014 was rightly criticised as a ‘gagging law’ that discouraged legitimate charity campaigning, and any new regime must avoid repeating that mistake. Nor should accountability become a weapon. Rules applied selectively to one side of politics would be worse than no rules at all.

What is needed is a common minimum for any organisation that spends above a threshold on influencing public policy, regardless of its objectives or legal status. This would entail disclosing major funders, publishing who controls the organisation, and reporting accurately on the outcomes of the cases it brings and the money it spends on them.

Campaigners on both sides of the political spectrum demand that the powerful answer for themselves. Considering the power campaigners now wield, they should have no objection to doing the same.

Contributed content: this article was written by a third-party contributor and does not necessarily reflect the views of ABC Money. Editorial and Advertising Policy