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Rosamund McCarthy Etherington: Campaigning

22 Mar 2023 Expert insight

Rosamund McCarthy Etherington casts an eye over recent campaigning legislation affects charities.

This content has been supplied by a commercial partner.

Introduction

It is well known that charities can campaign to achieve social change. However, context is paramount. Charities are faced with increasing polarisation of political opinion. Charity and electoral law clearly permit charities to campaign on matters which relate to their purposes and their members and volunteers may actually demand it. This is particularly with the cost-of-living crisis but also huge environmental concerns, human rights controversies, global growth in inequalities, reduced spending on public services, growth of so-called culture wars, and the renewed politicisation of freedom of speech. All this, in the run up to a general election, sometime in the next two years.

Main regulatory and legislative provisions

The main guidance from the Charity Commission is CC9 (including a new five-minute guide on political campaigning, launched in October 2022), as well as supplementary guidance on elections and referendums.

In relation to election law, the main legislation affecting non-party campaigners is the Political Parties, Elections and Referendums Act 2000 (PPERA) (as amended by the so-called Lobbying Act 2014 and the Elections Act 2022) that regulates general elections, devolved authorities and referendums. The Representation of the People Act 1983 (RPA), covers local campaigns for or against one or more candidates but is unlikely, in most circumstances, to affect charities. Other laws such as advertising law, defamation, public order, protest, the Companies Act and the Local Government Act 1986 may also apply to political activity.

Types of lawful campaigning

A charity must advance charitable purposes, for example prevention of poverty or human rights, and exist for the public benefit. A charity cannot have a political purpose and must ensure it is not acting outside its objects, or its wider governing document (that in very rare cases may not permit campaigning).

There are two types of lawful charity campaigning: non-political campaigning and political campaigning. A charity must not give support or funding to a political party, nor to a candidate or politician.

Non-political campaigning can be the sole and continuing activity, if it is in the best interests of the charity. It includes public awareness raising and changing public attitudes on a particular issue, as well as activities to change the policy or practice of a business or company.

Political activity by a charity “is aimed at securing, or opposing, any change in the law or in the policy or decisions of central government, local authorities or other public bodies, whether in this country or abroad. It includes activity to preserve an existing piece of legislation, where a charity opposes it being replaced or amended.” (Human Dignity Trust v Charity Commission CA/2013/0013)

While a charity can focus most or all of its resources on political activity for a period of time, CC9 is clear that “this activity should not become the reason for the charity’s existence”.

Decision-making

If a charity engages in political activity, it should consider its campaign strategy, the evidence base for the campaign and the justification for the use of resources and the duration, as well as the benefits.

CC9 states that charities “working in areas that rouse strong emotions in the public may decide that they are willing to accept the risks because of the potential benefits the campaign might bring”. Considering and mitigating other risks is also important, including that the charity will be drawn into activities outside its purposes. The new five-minute guide states: “The potential for criticism can be mitigated by the charity ensuring that it conducts its activity with respect and tolerance”, albeit this is not a legal requirement.

Elections and referendums

Charity Commission elections and referendums guidance applies during the period between the announcement of an election and the election date. It is important to remember election law, because some of the permitted activities may have regulated electoral consequences. CC9 guidance still applies, but there are extra protections during this period. If a charity’s policy position coincides with or is similar to a political party, it can continue campaigning on this issue, as long as it maintains its independence. The Commission gives this example: “If a housing charity supports the building of 100,000 new homes, it can outline the housing policies of each party, including how many new homes each party is committed to building, but it must not explicitly call on people to vote for one party or another.”

A charity may publish the views of candidates in local and national elections where these views relate to its purposes and publishing them will raise public interest and debate about the underlying issues, but it must not encourage support for a particular party.

Manifestos

A charity can publish a manifesto to persuade political parties to adopt their policies. Charities can also ask a candidate for their views on its policies, for example, to seek a pledge regarding a particular issue. An example of a housing charity’s general election objective could be: “To ensure that the next government builds the homes we need, by ensuring that housing is a key issue throughout the general election campaign, so that politicians feel compelled to compete over the issue and in turn include the kinds of policies that the charity would advocate in their manifesto, pledge cards and coalition negotiations.”

Hustings

Charities can invite candidates to an event or hustings but election law also applies. For example, Charity Commission guidance states that charities could exclude a candidate if their policies contravene the charity’s objects. However, the charity may be caught by election law and must take care regarding any exclusions, so as not to inadvertently give support to or prejudice a candidate.

Existing election law, prior to relevant provisions in the Elections Act 2022 coming into force

A charity must register with the Electoral Commission as a non-party campaigner if regulated activity is undertaken with a value over £20,000 in England and/or £10,000 in any of Scotland/Wales/Northern Ireland. Registration creates an additional compliance burden of keeping invoices, monitoring and reporting spending and controls on donations.

Once registered, non-party campaigners can undertake activity with a value of up to around £319,800 (England), £55,400 (Scotland), £44,000 (Wales) and £30,800 (Northern Ireland). The total due to attribution rules is generally £390,000. There are also constituency limits of £9,750 that apply if spending is wholly or substantially confined to a particular constituency or constituencies and has no significant effect in other constituencies.

How is expenditure caught by PPERA?

The purpose test to determine whether a charity’s expenditure is regulated, includes spending on activities that: “reasonably be regarded as intended to promote or procure electoral success at any relevant election for:

  1. One or more particular registered parties;
  2. One or more registered parties who advocate [or do not advocate] particular policies or who otherwise fall within a particular category of such parties, or
  3. Candidates who hold [or do not hold] particular opinions or who advocate [or do not advocate] particular policies or who otherwise fall within a particular category of candidates.”

This test is regardless of whether the campaign also achieves other purposes and also includes prejudicing the electoral prospects of one party. Under the Electoral Commission guidance, charities should consider tone, timing and whether there is a call to action to voters.

Expenditure which passes the purpose test will not be regulated if it is not directed towards the public. Electoral Commission guidance states that a charity’s members or committed supporters including regular donors and people actively involved in the charity, are not the public.

The regulated period for a general election (retrospective) is 12 months and is four months for Scottish Parliament, Welsh and Northern Ireland Assembly elections. Generally, charity campaigns before an election is announced will not be caught. A non-party campaigner is unlikely to be reasonably regarded as intending to influence people to vote in an election if it did not know about or anticipate the election. The retrospective period may apply if, for example, an organisation has campaigned in a recent election or has a standing campaign to unseat certain MPs.

Relevant expenditure must also be covered by the activity test and includes: material made available to the public by whatever means; canvassing, or market research seeking views or information from members of the public; media events organised by or on behalf of the nonparty; transport (by any means) of persons to any places with a view to obtaining publicity; public rallies or other public events, other than annual conferences of the non-party. Associated staff time and expenses, such as premises hire, provision of goods, services or facilities, are also caught.

The key exceptions are volunteer time and if the organisation is covered in a newspaper or a periodical (not paid advertisements); TV and broadcast media interviews and reporting where the broadcaster is regulated, for example on the BBC or Sky.

Joint campaigning/coalition campaigning

If campaigners have a common plan with another campaigner, then regulated spending by each campaigner counts towards the regulated spending total for both. So, if organisation A is in a common plan with organisation B and organisation A spends £12,000, organisation B is also deemed to have spent £12,000. Organisation A could register as the Lead Campaigner with the Electoral Commission, but is then responsible for reporting the minor campaigner’s spending.

It’s unlikely to be considered a common plan if a charity or campaign representative speaks at an event organised by another party, signs a letter, advertises its support for the campaign or allows its branding to be used. However, if another campaigner has to approve or can veto a charity’s material, or two organisations are co-ordinating their campaigns and spend, they are probably in a common plan or joint working.

Elections Act 2022: key changes for issue-based campaigners

The Elections Act 2022 brings with it several key amendments. When the provisions come into force, the Act introduces a new category of lower-tier campaigners. For expenditure over £10,000 across the UK on regulated activity, a non-party campaigner must register as a lower-tier campaigner. These campaigners do not have to report spending or donations during or after a campaign, but they do need to check on the permissibility of donations and are subject to imprint rules.

Overseas groups are limited to spending £700 on campaigning at UK general elections and non-party campaigners are not eligible to register as a political party and vice versa.

There will also be new requirements for digital imprints (not just printed as at present) and new requirements for photographic voter ID at the polls, improvements to accessibility provisions for voters with disabilities as well as other changes.

Rosamund McCarthy Etherington is a partner at Stone King

Charity Finance wishes to thank Stone King for its support with this article 

The Charity Finance Yearbook is the ultimate reference source for charity finance professionals. Produced by the Charity Finance editorial and research team it includes updates, advice and trends on accounting and audit, VAT and taxation, investment strategy, responsible investment and finance, risk, funding, performance and governance, law and regulation, HR and pensions, IT and property. Purchase online here.

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