Charity Law and Campaigning
All organisations which meet the legal definition of being charities – even if they are not registered with a charity regulator – must comply with charity law restrictions on campaigning. These are explained in the Charity Commission’s guidance CC9, Campaigning and political activity guidance for charities, and the supplementary Charities, elections and referendums for charities based in England and Wales, and in similar guidance from the Office of the Scottish Charity Regulator (OSCR) and the Charity Commission for Northern Ireland [see Resources, below, for links to all].
CC9 distinguishes between campaigning and political activity.
- Campaigning, as defined in the Commission’s guidance, refers to awareness-raising and to efforts to educate or involve the public by mobilising their support on a particular issue, or to influence or change public attitudes or behaviour – for example, to promote health by smoking less. It also refers to campaigning activity which aims to ensure that existing laws are observed. Some organisations use the term non-political campaigning to refer to these activities, because they are not directly about changing the law or changing governmental or other public sector policy.
- Political activity is defined as activity by a charity which 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 the UK or abroad. It also includes activity to preserve an existing piece of legislation, where a charity opposes it being repealed or amended. (This differs from activity aimed at ensuring that an existing law is observed, which is treated as campaigning.) Some organisations refer to “political activity” as political campaigning, to distinguish it from non-political campaigning and party-political activities.
Party-political activity is not explicitly defined in CC9 but generally refers to activity which supports or advocates against a political party, politician or candidate. Charities can never engage in party-political activity.
Political purpose is defined as any purpose directed at furthering the interests of any political party; or 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 the UK or abroad. A charity cannot have political purposes as part of its objects, and it cannot support any political party or candidate. But any charity, unless its governing document prohibits such activity, can engage in campaigning and political activity which furthers or supports its charitable purposes, is lawful, and is not party-political.
It is a myth that charities cannot campaign or get involved with political activity. They can, and many people believe they should (unless the charity’s governing document prohibits it).
All trustees and relevant staff and volunteers should be familiar with CC9, which covers key questions around campaigning and political activity; working with political parties and politicians; questions for trustees; getting it right; and potential problems. The guidance covers a wide range of campaigning and political activities, from simple information campaigns to taking part in or organising demonstrations, and covers not only charity law but also the basics of other relevant law and regulation, such as the code of advertising, sales promotion and direct marketing; the radio advertising standards code; the TV advertising standards code; the Serious Organised Crime and Police Act 2005 (if organising or taking part in a demonstration); the law on defamation (libel and slander); and the law on incitement.
CHARITY LAW IN THE RUN-UP TO AN ELECTION
The Charity Commission’s Charities, elections and referendums sets out specific guidance for the run-up to an election or referendum. This almost certainly applies equally in Scotland and Northern Ireland, though I have not compared it with OSCR and CCNI guidance.
Since the election was announced, the Charity Commission has emailed trustees saying, “The Commission is aware that the political context for this election is very different from that which people may have experienced in the past, which makes it all the more important that trustees read both our guidance on campaigning and political activity [CC9] and the particular guidance that applies during an election. .. It is legitimate and healthy for charities to speak up for the causes they serve. But appearing to take a political position on either side could risk undermining public confidence in charity as something special.”
The Commission’s election guidance is in six parts – policies, publicity, political parties, candidates and referendums – of which I am summarising the first five here. The guidance is specifically for charities during an election period, but under the Local Government Act 1986, the basic principles may also apply to non-charities which receive local authority funding. Other public sector funders, as well as private sector funders such as trusts, may impose similar restrictions even on non-charities.
- A charity whose position on a particular position coincides with or is similar to a political party can continue to campaign on that issue and to advocate its policy, as long as it makes clear its independence from any political party advocating the same policy, and does nothing to encourage support for any political party.
- In any publicity material, including printed material, media interviews and websites, a charity may promote its views on issues which relate to its objects and activities. But it must not explicitly compare its views, favourably or otherwise, to those of the political parties or candidates raking part in the election. The key point is that charities can attempt to influence public opinion on a particular issue if it furthers or supports its objects, but must leave it to the electorate to make their own decisions about how to vote.
- A charity may publish the views of candidates in local and national elections where these views relate to the charity’s purposes, and publishing them will raise public interest and debate about the underlying issues. The charity must not encourage support for any particular party or candidates.
- If a charity publishes a manifesto in order publicise the issues which they campaign on and the changes they are calling for on behalf of their beneficiaries, the purpose must be to try to persuade the political parties to adopt those policies, and/or to raise the public profile of those issues. The intention must not be to influence voter behaviour. If a charity is approached by a political party for permission to refer to the charity in their manifesto, the charity must refuse the request. This is because of the risk that the charity will be appearing to endorse the political party itself.
[NAVCA, the National Association for Voluntary and Community Action, said in its newsletter on 31 October that perhaps the single greatest risk for small local charities during an election campaign is being used by local candidates for a photo opportunity or media headline. It encourages all charities “to think carefully” if they are approached by a candidate for a media opportunity. Similarly, Russell-Cooke solicitors said in an article before the 2017 general election, “Charities must be careful to avoid becoming embroiled in the party political debate. … Where charities are asked for a comment or opinion on the day’s story, an ill-considered comment or response to a journalist can quickly become front page news and lead to the impression pf support for, or opposition to, the politician rather than the policy. This may not only be a breach of the law but have a damaging effect on a charity’s reputation.”]
- Charities may not support or oppose a political party or candidate, and must not donate funds to political parties.
- Charities can invite candidates and political party representatives to public meetings about issues on which the charity is campaigning, for example by inviting candidates to debate those issues, or to speak at a reception to launch the charity’s campaign. But the charity must not encourage support for any political party. One way of making sure that the charity does not do this may be the invite representatives from as wide a political spectrum as possible. However, the Commission’s guidance acknowledges that this can be difficult to achieve in practice, and suggests options the trustees might consider when deciding how not to be seen to be supporting a particular party or candidate.
- A charity can approach the candidates in an election, setting out its concerns and asking for the candidates’ opinions on them, with a view to promoting debate.
- However, charities should be especially wary of associating or becoming associated in the minds of the public with a particular candidate or political party., Where the charity supports a popular cause, candidates may see a benefit to themselves in being seen to support the charity, but the charity should be careful to ensure that it is not seen as reciprocating that support.
- Charities must never support particular candidates even if those candidates belong to a range of political parties.
- Charities must not assist candidates with their election campaigns, financially or otherwise. Individual members of a charity may of course choose to assist any candidate in a personal capacity, but officers and employees of a charity should not use their position in any campaigning activities in such a way as to suggest that the charity endorses any candidate.
- If an employee is directly engaged in a charity’s campaigning activity, and also has personal involvement with one particular political party, for example they are standing as a candidate, they should declare this to their employer. The trustees should then consider this potential conflict of interest and assess the risks for the charity in terms of both reputation and legal liability of the person taking on both roles simultaneously. [It seems to me this would also apply to a trustee or an active volunteer who is publicly associated with the charity.]
- Some charities, such as schools, may be required by electoral law to make their premises available to candidates to hold public meetings free of charge. Where this is not the case, but a candidate wishes to use facilities within a charity’s premises for a public meeting, it should be treated as a normal commercial hire, and charged for at a rate decided by the trustees. There are no restrictions on what this rate may be, but it should be both reasonable and applied equally to bookings by all candidates.
- It is open to a charity to refuse to hire facilities to a candidate, political party or other group if the charity trustees have good reason to believe that to hire the facilities would alienate the charity’s beneficiaries, users or supporters, or are advised by the police that to do so would create a risk of public disorder.
The Charity Commission published in July 2017 a summary of the 41 cases on campaigning and political activity it opened during the seven weeks before the general election on 8 June 2017. These cases are under six headings – visits to charities by prospective parliamentary candidates; publishing educational material with political commentary or analysis; providing explicit support for candidates and political parties; use of charity material by candidates and political parties; political activity by charity employees and trustees; and links with non-charitable organisations. Each section includes case studies, and lessons for charities and trustees. The main lessons, the Charity Commission said, are that charities have a valuable role to play in raising awareness of and encouraging debate about issues that affect their beneficiaries and wider society, and as long as they follow electoral law and charity law as set out in the Commission’s guidance, they should feel confident to carry out such activity. For details of Campaigning and political issues arising in the run-up to the 2017 general election, see Resources, below.
General and national elections
The Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 (usually referred to as the Lobbying Act) introduced a register of consultant lobbyists; new regulation of non-party political campaigning; and new rules for trade unions’ registers of members. Part 2 of the Act, with the new rules on non-party campaigning, spending and donations, amended part 6 of the Political Parties, Elections and Referendums Act 2000 (PPERA) – so sometimes you may see the new rules referred to as the Lobbying Act, and sometimes as PPERA. Like most people I’m still referring to it as the Lobbying Act. You may also see non-party campaigning also referred to as third party campaigning, i.e. campaigning that is not carried out by political parties.
PPERA established the Electoral Commission, an independent body which oversees elections and regulates political finance in the UK. PPERA also covers the registration and regulation of political parties, including donations to them and campaign expenditure; referendums; election campaigns and proceedings; political donations and expenditure by companies; and (as amended by the Lobbying Act) campaigning by “third parties” – individuals and organisations who are not political parties. PPERA was intended to provide transparency so the public can find out who spent significant amounts in the hope of influencing election results, and sets financial limits to prevent excessive influence.
Unlike charity law rules on campaigning, which apply only to charities, the Lobbying Act rules on non-party campaigning apply to all organisations which are not political parties. But the rules affect only a very small number of charities and voluntary organisations, so don’t panic. According to media reports at the time, only 31 organisations registered with the Electoral Commission as non-party campaigners for the 2017 general election. These included trade unions, campaigning groups, some individuals, a community business, and five charities – Arthritis Research UK, Britain Yearly Meeting of the Religious Society of Friends (Quakers), Friends of the Earth, League Against Cruel Sports, and Stonewall.
The Electoral Commission’s updated guidance for non-party campaigners, issued on 23 September 2019, says that if charities follow charity law and guidance from charity regulators, they are generally unlikely to be carrying out regulated activity under electoral law. This means that most charities, provided they are following Charity Commission, OSCR or CCNI guidance on political activity, are unlikely to need to register with the Electoral Commission.
The Electoral Commission’s guidance was updated after consultation with charities and other voluntary organisations and has been welcomed, but there is still widespread concern about the Lobbying Act itself. Following the 2015 parliamentary election, Lord Hodgson of Astley Abbotts carried out a 15-month statutory review of part 2 of the Act, and made numerous recommendations in March 2016. His proposals were well received by both the sector and the government, but the Cabinet Office announced on 15 September 2017 that the proposals would not be taken forward, reportedly because of lack of space in the legislative programme. The National Council for Voluntary Organisations and many other sector bodies still want the legislation to be changed.
A charity or other organisation has to comply with the Lobbying Act rules and register with the Electoral Commission only if:
- it engages in regulated activities [see next paragraph]
- which are classed as a general campaign (for or against one or more political parties; or parties or candidates who support or do not support particular policies; or other categories of candidates)
- in relation to an election for the UK Parliament, Scottish Parliament, National Assembly for Wales, Northern Ireland Assembly or European Parliament;
- and spends more than £20,000 in England, or £10,000 in Northern Ireland, Scotland or Wales on regulated activities
- during the regulated period (starting 365 days before polling day for UK general elections, or four months before elections to the Scottish Parliament, National Assembly for Wales, Northern Ireland Assembly or European Parliament).
Spending on an activity is likely to be regulated if the activity meets three “tests”.
- The activity test. To be regulated, an activity must involve election material (printed or electronic); canvassing or market research (including phone banks); public rallies or public events; press conferences or other media events; or transport with a view to publicising the campaign.
- The purpose test. An activity can be regulated only if it can reasonably be regarded as intended to influence voters to vote for or against one or more political parties, or political parties or candidates who do or do not support particular policies, or other categories of candidates. As examples of “other categories of candidates”, the Electoral Commission mentions candidates who went to a state school, or independent candidates who are not standing in the name of a political party.
Note that “can reasonably be regarded as intended to influence voters to vote for or against a political party or candidate” is wider than the charity law restriction on party political campaigning, which is about actually supporting or opposing a political party or candidate. Organisations concerned about whether they activities can reasonably be seen as “intending” to influence voter behaviour should read Does your campaign activity meet the purpose test? (http://tinyurl.com/y3ymyg82) and the Purpose test: Intention page that follows it. These pages should reassure most charities which comply with Charity Commission guidance.
- The public test. Election materials, canvassing or market research, or public rallies and events can be regulated if they are aimed at, seen or heard by, or involve the public or a section of the public, but press conferences or other media events, and transport intended to publicise the campaign, are not regulated. Electoral Commission guidance now explicitly states that an organisation’s official members or committed supporters (people who support the organisation in the same way as members) are not considered part of the public, so activities aimed exclusively at them will generally not meet the public test and will not be considered regulated campaign activity. Depending on the nature of the organisation, “committed supporters” might include regular donors by direct debit, people with an annual subscription, or people who are actively involved in the organisation. People who have signed up to social networking sites or tools (such as Facebook or Twitter), or are on mailing lists that have been compiled for general commercial purposes, or have signed up for email updates should be treated as members of the public, unless they are also members or committed supporters of the organisation. If an organisation communicates with both its members/committed supporters and members of the public, it will need to apportion costs between those categories.
An organisation has to register with the Electoral Commission only if it carries out at least one of the specified activities, and such activities meet the purpose test and if applicable meet the public test, and the organisation spends more than £20,000 in England or £10,000 in Scotland, Wales or NI on regulated activity during the regulated period. Once registered with the Commission it can spend more than these limits up to a specified maximum, but has to comply with strict reporting rules on its spending and on donations it receives. Electoral Commission guidance explains what must be included in campaign expenditure – for example the cost of staff time relating to regulated activities has to be counted ahead of a general election, but the value of volunteer time does not.
An organisation which is clearly not going to spend anywhere near the registration limit for any nation does not need to keep records of its spending on regulated activities, but if it could come close to any of the limits it should keep records. As soon as it comes close – or knows it is likely to go over the limit – it should register with the Electoral Commission, and not incur any regulated expenditure above the limit until it is registered. It is an offence to go over any of the limits before registering, and after the 2015 election Greenpeace and Friends of the Earth were fined for doing this.
For links to the Electoral Commission’s guidance see Resources below.
Campaign activity before an election is announced
The Electoral Commission guidance states that most campaign activity undertaken before an election is announced is unlikely to meet the purpose test, because many campaigns are purely issues-based rather than focusing on candidates or political parties, especially when the campaigns were intended to take place outside of an election period; and also because an organisation is unlikely to reasonably be regarded as intending to influence people to vote in a certain way if they did not know or expect that an election would happen. However, the Commission says activity could meet the purpose test if an organisation anticipated or made reference to a future election before it was announced, and/or the purpose test may have been met in earlier elections during the regulated period. During the regulated period for the current election, which started on 13 December 2018, there have been the European parliamentary election, English local government, Northern Ireland local government and combined authority mayoral elections in May 2019, and some by-elections.
Any organisation which is concerned that it may have reached or even breached the registration limit during the past year should read the Electoral Commission’s guidance specifically about this, on pp-8-9 of Overview: UK parliamentary general election 2019: Non-party campaigners at https://tinyurl.com/y2wt2758. If still concerned the organisation should check its expenditure records for the regulated period, and if necessary register with the Electoral Commission.
Separate rules under the Representation of the People Acts (RPA) apply to local campaigns which are specifically intended to help or hinder one or more candidates in a particular constituency, ward or other electoral area. They apply to general elections, as well as to mayoral, local council and Greater London Authority elections. For a general election the regulated period for non-party local campaigning generally does not start until Parliament is dissolved. For local elections which do not take place alongside a general election, the regulated period starts when a person becomes a candidate. The spending limit for campaigning for or against one or more candidates in a particular constituency, without candidate authorisation, is £700.
These rules are about campaigning with an actual intention of influencing voter behaviour, so will not affect charities which comply with charity law rules, or other organisations which do not engage in party political activities.
The RPA rules are not regulated by the Electoral Commission. Complaints are made to the police, and the Crown Prosecution Service decides whether to prosecute.