Charities – campaigning for an election – are you in?
A General Election will be held on 12th December 2019. Will you be campaigning? We highlight the key issues for charities, and in some cases, not for profit organisations, who could be caught by election rules and spending thresholds.
Can you campaign?
Charities cannot exist for a political purpose , i.e. having objects directed at furthering the interests of any political party, or securing or opposing a change in the law, policy or decisions.
Charities can however carry out some ‘political activity’, which includes opposing laws and policies, provided that this supports their charitable purposes. They can also ‘campaign’, which the Charity Commission distinguishes from political activity. This includes educating the public, stakeholders and government about policy, and/ or upholding existing law and policy.
Charities can engage with politicians, but they must not give their support to any one political party, nor donate funds to a party.
In the run up to an election there are also special rules about political and campaigning activities which have the potential to influence the public. These were introduced by the Political Parties, Elections and Referendum Act 2000 and amended by The Transparency of Lobbying, Non Party Campaigning and Trade Union Administration Act 2014 – being better known as the ‘Lobbying Act’.
There is a requirement to register if your organisation is carrying out what is known as ‘regulated campaign activities’ in the 12 month period up to the election (a regulate period). In the case of a snap election this period applies retrospectively, so organisations need to consider what they have been spending over the past year.
Regulated campaign activities
Broadly, these are activities that are reasonably likely to influence voters to vote for or against a party or a candidates and include,
- press conferences or other media events
- transport in connection with publicising a campaign
The following are also included if they are aimed at, seen or heard by, or involve the public,
- the production or publication of election material
- canvassing and market research
- public rallies and public events (including hustings or where politicians are present)
The activity, or event, does not need to name a particular party of candidate. Even raising awareness can be caught by regulated campaign activity, if for example an activity is closely linked to particular party policy.
Spending thresholds and registration
If spending on regulated activities exceeds £20,000 (or £10,000 in any of Scotland, Wales or Northern Ireland), an organisation must register with the Electoral Commission – in most cases as a ‘non- party campaigner’.
There are further thresholds that charities should be aware of. The first is an overall maximum – a total £319,800 that can be spent in any one regulated period (or £55,400 in Scotland, £44,000 in Wales £30,800 or in Northern Ireland).
The second is a maximum of £9,750 that can be spent in any one particular parliamentary constituency in any regulated period. This will include locally focussed campaigns and also a split of spends for national campaigns.
Spends from joint campaigns are to be taken in total, and so organisations collaborating or supporting campaigns of others’ may be unaware if they need to register
Failure to comply
Carrying out political activities or campaigning where this is not authorised by, nor in support of a charity’s legal objectives can give rise to a breach of trust, which in extreme cases can lead to trustees being personally liable.
Failing to comply with electoral law carries penalty fines. For example, both Greenpeace and Friends of the Earth were fined £30,000 and £10,000 respectively in 2017 for failing to register with the Electoral Commission for the 2015 general election.
Clarity or confusion?
Concern was raised following the introduction of the Lobbying Act that the definition of regulated campaign activities was too ambiguous, and in particular, that charities campaigning on mainly one issue (accounting for most of their charitable expenditure) would be unfairly caught by the maximum thresholds.
The Electoral Commission has very recently issued guidance for charities. This was produced in conjunction with NCVO, ACEVO and Bond, and seeks to clarify how charities should interpret the Lobbying Act, and to offer reassurance that charities can in fact campaign. The guidance provides detail on the ‘influencing voters’, test as set out above.
The Electoral Commission has also indicated it will also take a pragmatic approach to charities complying with the rules, particularly when retrospectively accounting for campaign spending.
However, regulated campaign activities must be assessed on a case by case basis. There is often a fine line when ‘influencing voters’, and particular care should be exercised where campaigns are closely associated with the key issues at the forthcoming election.