Over recent years there’s been much ink spilled about charity campaigning and its intersection with the UK’s complex regulatory regime governing elections – including by yours truly.
The relevant legislation is confusing and can even seem intimidating to the layperson or trustees without legal expertise. But the reality is that for the vast majority of charities, it will not apply to them and their normal activities, and they can continue doing their important work as usual during election periods. Despite some tweaks to the regulations recently and some new guidance, a few rules of thumb and key things to know will help charities campaign with confidence.
The primacy of charity law
If you’re a charity in law (whether registered or not) and not some other kind of not-for-profit entity (for example a CIC), the good news is that if you follow the guidance from the Charity Commission for England and Wales, or the other regulators in Scotland and Northern Ireland as appropriate, there’s a low chance of falling foul of other regulations at election time.
Why? Charity law and the guidance around charities and political activity – CC9 – is well-established and pretty clear. Charities can engage in ‘political activity’ as long as it’s in the service of their charitable objectives. The activity must be related to the charity’s work and its mission, not something unrelated. Political activity also can’t be the main reason the charity exists (as it isn’t charitable in and of itself), and it can’t be the charity’s ‘sole and continuing activity’. Charities must not support or endorse particular parties or candidates, or encourage voters to vote for or against them – ever – election time or not. If trustees ensure their charity sticks to these principles, they’re highly likely to be fulfilling their duties appropriately.
I find it helpful to think of ‘political activity’ in terms of small ‘p’ versus large ‘P’. You won’t find this in any law or official guidance, but think of small ‘p’ meaning engaging broadly in the political process or with the political system in service of your beneficiaries and charitable mission, which is legitimate and, I would argue, crucial for a healthy democracy. Large ‘P’ means supporting individual politicians or candidates, or urging voters to vote in certain ways – which is against charity law. Small ‘p’ is perfectly fine for charities if you follow the guidance; large ‘P’ is prohibited.
Whilst this might seem a finely tuned distinction, in practice it’s mostly common sense. The kinds of campaigning or public affairs work that charities normally do will not be a problem if done within the parameters set out above. Charities are free to write letters to MPs or Ministers, to seek to influence political parties to adopt policies that would support their beneficiaries (or to reverse or alter policies that harm them), to speak in public or to the press about these things, and to engage supporters and the public in campaigns to make change happen. This is the case during election periods just as at any other time.
It’s a misconception that other rules about election spending prohibit this sort of activity – they mainly seek to regulate it via certain thresholds and reporting mechanisms. It’s also worth remembering that the press, some politicians and even parts of the public may not see charities’ legitimate and legal small ‘p’ activities this way – because they often have little understanding of charity law (but that’s a subject for another day).
The really crucial thing to consider in practice, especially at election time, is whether a charity’s ‘small p’ political activities aren’t favouring particular parties or candidates, and above all not straying into that ‘large P’ territory of influencing voters to vote for particular parties or candidates. For example, by asking only one party to adopt your charity’s policy recommendation, or excluding one party’s candidate from a hustings, or producing leaflets that urge your supporters to vote for or against a certain party or candidate. Those are all things that would run afoul of charity law (but ironically not the elections regulations – more on that next!).
An attempted summary of UK’s complex elections law regime
Parliament has passed laws to regulate the activities of political parties, candidates, donors, and so-called ‘non-party campaigners’ – such as unions, pressure groups and think tanks, but also charities and other civil society groups. Much of this is about voting and how elections are held, but the regulations also attempt to exert some control over money and in-kind support (i.e. donations) and the activity it supports in the political system. Even though charities and other civil society organisations normally exert negligible financial influence on elections, their activity can still come under the scope of the rules.
The Electoral Commission has the difficult task of not just translating this legislation into intelligible guidance, but attempting to regulate political parties and politicians that may rather not wish to comply, especially in the heat of an election campaign when stakes are highest.
Over recent years there have been concerns that charities and other not-for-profit organisations could be unwittingly swept up into the regulatory regime, causing them to curtail their activities. In 2014, the so-called ‘Lobbying Act’ caused consternation by bringing in new rules on ‘non-party campaigners’. This Act amended pre-existing legislation called the PPERA – the Political Parties, Elections and Referendum Act of 2000. The combined effect seemed to bring civil society organisations further within the scope of the regulations in ways that had not been previously well understood. The PPERA is the major but not the only elections legislation at play here.
The PPERA includes some key tests, sets spending thresholds, and describes types of regulated activity, in particular around ‘controlled expenditure’, which means ‘any spending incurred in respect of regulated campaign activity’. It gives examples of this expenditure, for example on transport, rallies or public events related to election campaigns, campaign materials (i.e. leaflets), and canvassing or market research. It’s important to remember that multiple aspects (or ‘tests’) must be present for the activity to be regulated, and even then, this is mainly about enforcing a reporting regime on spending to the Electoral Commission. The four tests all need to be present for the activity to count. If any one of them isn’t met, the activity is not relevant. These are:
1. The Period Test
The activity must take place within the ‘regulated period’ of the election – in the case of a General Election, this is 365 days before. This nonsensical rule means that non-party campaigners that may incur ‘controlled expenditure’ in the year before the election, which also meets the other three tests below, need to know what that expenditure may be a year in advance. This is regardless of the fact that it’s impossible to think of an example where the governing party has ever called an election that far ahead! Given the consistent speculation about an Autumn 2024 General Election, charities can reasonably assume that we are close to or already in the regulated period.
2. The Purpose Test
Activity which meets this test is that which is intended to ‘promote or procure the electoral success of: one or more political parties; or candidates who support or do not support particular policies; or another particular category of candidates’. If you’re following the key principles of CC9 outlined above, your activity is unlikely to meet this test. A new Code of Conduct from the Electoral Commission also helpfully states that activity is unlikely to meet the Purpose Test if it preceded the General Election period (Period Test) and did not alter during the election period. So, your charity’s long-standing campaign is not likely to count unless you change it substantially in the context of the election. Activity also only meets this test if it can ‘reasonably be regarded as intending to influence voters to vote in a particular way’.
3. The Public Test
Activity that meets this test must be for the public, meaning in public or for public consumption, rather than solely for an organisation’s members. If you’re sending an email bulletin to your members briefing them on a policy in election manifestos, or asking them to write to their local MP to support a particular policy change, this isn’t ‘public’. If you are hosting related content on your website or sending information to a wider group of ‘supporters’, it is public.
4. The Spending Test
There are financial thresholds which dictate when organisations have to notify and register with the Electoral Commission, and rules about how they have to report their spending on ‘regulated activity’ once they are registered. Organisations can spend up to £10,000 without having to register with the Electoral Commission. If they intend to spend more than that, they need to notify the Commission before the spending happens. If an organisation’s spending exceeds £20,000 in England or £10,000 in Scotland, Wales or Northern Ireland on activity that meets the other tests, it is required to register with the Electoral Commission and report its spending.
Good news on joint campaigning?
The new Code of Conduct for non-party campaigners from the Electoral Commission is currently awaiting final approval by Parliament. This was developed because of concerns raised by law firms and civil society organisations and is intended to clarify some confusing areas. The new Code offers some potential helpful clarifications on so-called ‘joint campaigning’, when organisations for example coordinate campaign activities, sign up to a pledge or a campaign that someone else is leading.
This has been problematic in the past, because many organisations were concerned that even though their own spending wouldn’t exceed the thresholds above, it might if it was counted together with others in joint campaigns. The new Code says: ‘If there is no intention to incur expenditure there is no joint campaigning.’ For spending on joint campaigns to count as ‘controlled expenditure’, there ‘must be an agreed understanding [between the campaigners] that controlled expenditure will be incurred to achieve the common purpose.’
Helpfully, some examples in the new Code make clear that endorsing another campaign, adding joint signatures to a letter, or speaking at an event without any financial commitment do not count when it comes to whether something is deemed to be ‘joint campaigning’ and therefore subject to the spending and other ‘tests’ described above. These activities are common in the charity sector and these clarifications should help trustees to be more confident that they’re acting appropriately when their charity for example signs an open letter or supports another charity’s campaign.
At the time of writing the Westminster political parties are holding their annual conferences. Later in the Autumn the government’s legislative agenda will be revealed in the King’s Speech (7 November) and the Chancellor will give an update on spending and related policy in the Autumn Statement (22 November). These events may be the last of the current Government before the next General Election, and could give some indications of the ground the election will be fought on.
Some key things for charities to look out for in this context are:
- Confirmation of the Electoral Commission’s Code of Conduct for non-party campaigners. This should help clarify things somewhat for organisations that think they might incur ‘controlled expenditure’ in the coming period. The Electoral Commission is also expected to release updated guidance after this happens to reflect the new Code.
- Charity Commission statement: we’re expecting a statement from the Charity Commission at some point in the coming months on charities and political activity, likely focussed on reminding trustees of the law covered in CC9. They are also expected to release some joint guidance with the Electoral Commission specifically for charities, possibly in the new year.
- Guidance and analysis from umbrella and infrastructure organisations. DSC will continue to track developments and signpost you to useful information and advice in the coming months. Other organisations involved in the Civil Society Group such as NCVO and Acevo are likely to do the same, so stay tuned.
Finally, remember the rules of thumb above, and campaign with confidence! If in doubt, refer first to the Charity Commission and CC9. And remember: your beneficiaries and your society needs you!