THE Gagging Act has cast a long shadow over the role of trade unions in the coming general election.

But while unions are right to be mindful of the Act’s limitations and liabilities, there are loopholes that can be fully exploited in the interests of free speech. We must not be paralysed by our legitimate outrage.

Many readers will recall the great controversy that was provoked by the clumsily entitled Transparency of Lobbying, Non-Party Campaigning etc Act 2014 at the time it was passed.

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 onerous registration, disclosure and reporting rules.

In addition, trade unions are now subject to new restraints on how much they can spend in the election campaign, 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 incur controlled expenditure up to £390,000 nationally.

Controlled expenditure is widely defined to cover activities that can “reasonably be regarded as intended to influence voters to vote for or against political parties.”

This limit of £390,000 is then sliced and diced, with no more than £9,750 to be spent in each constituency.

Otherwise, additional restrictions apply to controlled expenditure which is also targeted spending.

This is defined to mean spending on regulated campaign activity that “can reasonably be regarded as intended to benefit” a particular party or any of its candidates, and not another party or candidates.

Good luck trying to distinguish targeted spending from other forms of controlled expenditure.

But if a union wants to incur targeted spending in excess of a £40,000 or so statutory sub-limit, it needs the consent of the political party for which the expense is undertaken, and it will count towards 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 is that trade unions are free to contact their members with election messages, including “who to vote for” messages.

This latter 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.

According to the Electoral Commission, activities and communications “aimed exclusively at … members or committed supporters will not meet the public test and so will not be considered regulated campaign activity.”

For these purposes, trade union members are not the public — the messages are private.

Crucially this allows activity to be carefully targeted on marginals, where trade union members may make a difference in constituencies in which there have been large local government redundancies or dissatisfaction with the health service. Union spending can therefore make a difference.

The other major exception is explicit rather than implicit. 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 advertising in the Morning Star.

But there are lots of other things they could do to boost circulation and get the message out. This includes increasing their investment in the paper, placing op-ed pieces by leading officials and sponsoring special issues on electorally relevant topics.

We have already had a fantastic example of the special issue of the Morning Star on employment rights in February. 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 and TTIP; and so on.

The Gagging Act is of course not the only limit on trade union election spending and political freedom, 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 also true that care would need to be taken about the content of any messages sent to members, as well as the location and substance of any meetings, in order to avoid liability under the 1983 Act.

But this should be easy enough, provided the activity focuses on the party rather than the candidate.

Professor Keith Ewing is president of the Institute of Employment Rights.