Charities who breach the Lobbying Act are likely to meet a "forgiving" response from the Electoral Commission, according to specialist charity lawyers.
The Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 comes into force on 19 September 2014 and will govern how charities and other civil society organisations can campaign in the run-up to national elections.
"I think the Electoral Commission is trying to reassure the sector about the Act,” said Tom Murdoch, senior associate for Stone King (pictured). “A lot of charities looking at the Electoral Commission’s guidance are considering that they actually don’t need to register.
“The Electoral Commission has said that if you get it wrong and you end up being within the registration requirements, but you don’t register – for example if you accidentally exceed the expenditure thresholds and are not registered – then the Electoral Commission will take quite a forgiving approach.”
The registration requirements for charities in England is an annual campaign spend of £20,000 and £10,000 in Wales and Scotland. Charities that spend more than these amounts are required to register. But consequences for those who fail to do so are likely to be minor, according to Murdoch.
“It might not be comfortable for charities but I don’t think the registration requirement itself will lead to prosecution,” he said. “It could be that all those people in the sector who are very angry about it - rightly maybe - in the end feel less angry because in practice it turns out not to be so onerous after all.”
Vicki Bowles, barrister and professional support lawyer for Stone King, told Civil Society News: “My understanding of the Electoral Commission approach is that they understand that this is a difficult area for charities, and so they will be offering advice and guidance rather than penalties if a charity has not registered, but the Commission thinks that they should have.
“As long as there is a genuine reason for not registering, then I doubt very much if any punitive action would be taken. But if there is any evidence of a deliberate refusal to register, I suspect that a harder line may be taken.”
Charities are being advised to review their current campaigns to assess whether they are likely to become political footballs in the lead-up to the 2015 election.
“I have been advising clients to undertake a review of their current campaigns and assess whether they are likely to become political issues,” said Bowles. “If there is a danger that they will be, then the trustees need to assess the risks that their campaign might be seen to be attempting to influence votes, and if this is likely, then consideration needs to be given to registration.
"The main danger area for charities is where a particular party or candidate takes on board an issue that a charity is campaigning about, and makes it a part of their campaign. This may not be obvious at the outset of the regulated period, and is not the fault of the charity if a politician hijacks their campaign.”
A spokesperson for the Electoral Commission told Civil Society News: “Where necessary, we can use our powers to ensure compliance with the law where it is fair and proportionate to do so.
"If it came to light that an organisation had not registered and it appears that they should have, then we would contact them for further information in order to assess the reasons for this in line with our enforcement policy.
"We will continue to work with charities to provide help and guidance as they plan their campaigning activities.”
