Here we go again… Charities and campaigning during elections

8 NOVEMBER 2019

| 3 min read

For the third time in five years the country is heading to the polls. But are charities any better informed about what campaigning activities they can and cannot undertake during the election period than previously?

The answer is, probably, yes.

In some respects this has been a much foreshadowed election, and as a result of that the Charity Commission has taken steps to highlight its existing guidance, and the Electoral Commission has produced new guidance for charities.

Guidance from the Charity Commission

The Commission in September took the opportunity to remind charities of their responsibilities when it comes to political campaigning, in a blog post from its Chief Executive, Helen Stephenson.

What is campaigning, and what constitutes political activity?

The Commission’s main guidance defines campaigning and political activity as follows:

Campaigning is awareness-raising and efforts to educate or involve the public by mobilising their support on a particular issue, or to influence or change public attitudes. It can include activity which aims to ensure that existing laws are observed.
Political activity is not just “party political” activity, but activity by a charity 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 It can include activity to preserve an existing piece of legislation, where a charity opposes it being repealed or amended.

The blog post signposts the Commission’s guidance on campaigning and political activity for charities and its supplementary guidance on campaigning and political activity during an election period.

In summary, the Commission’s main guidance sets out the general position that campaigning and political activity can be legitimate and valuable activities for charities to undertake, and indeed may in some situations be the best way for the charity to advance its charitable purposes, but that this kind of campaigning and political activity can only be undertaken by a charity in support of the delivery of its charitable purposes.

So, provided it is in support of a charity’s purpose, and unless its governing document forbids it, a charity can carry out campaigning and political activity.

Such campaigning and political activity, however, cannot be the continuing and sole purpose of a charity, and a charity cannot give support or funding to a political party, to a candidate or to a particular politician. A charity must maintain its independence from all political parties, and indeed its appearance of independence from all political parties, and make sure that any involvement it has with political parties is balanced.

Finally, charity trustees should remember that, when campaigning, a charity must comply not only with charity law, but all other applicable laws (including as the Political Parties, Elections and Referendums Act 2000, sometimes known as the “Lobbying Act”, about which there is more information below) and, if applicable, the Codes of the Advertising Standards Authority.

How do things change during an election?

Although the basic principles remain the same, especial care is required during an election period to ensure a charity’s political neutrality is maintained – and a charity must never seek to suggest to its supporters that they should vote for a particular candidate!

The Commission’s supplementary guidance on campaigning during an election period seeks to address how charities should address particular situations likely to arise, and mistakes which can lead either to charities engaging in party politics (or to the appearance of their so doing), in the run-up to an election.

In particular, it highlights the following issues:

Policies:

If a charity’s policy position on a particular issue coincides with, or is more or less similar to, that of one of the political parties, it is “entirely acceptable” that the charity continues campaigning on that issue and advocate for its policy provided the charity makes clear its independence from any political party advocating the same policy, and does not do anything to encourage support for any particular political party.

Publicity

While a charity may publicise its views on issues relating to its charitable aims and activities, charities should avoid explicitly comparing those views (favourably or otherwise) with the views of the political parties or candidates taking part in the election in the charity’s publicity material.

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 – but not so as to try to influence support for any particular party or candidate.

Some charities, which receive local authority funding, may be bound by restrictions in the Local Government Act 1986 on giving publicity to any political party or publishing any material that appears to be designed to influence public support for or against a political party. Any charity thinking it might be caught by these restrictions should take particular care, as their funding may be at risk if the charity breaches these restrictions. d

Parties

If a charity invites candidates and political party representatives to public meetings about issues on which the charity is campaigning, one way of demonstrating that the charity is not encouraging support for a particular party may be to invite representatives from as wide a political spectrum as possible.

The guidance makes clear that this does not mean that all parties have to be represented every time – the trustees should make a decision based on whether such engagement would further or hinder the interests of the charity. For example, if the inclusion of representatives from all minority parties would make an event unmanageable, it may be reasonable to exclude minority parties.

Candidates

A charity can approach the candidates in an election, putting the charity’s concerns to them, and asking for the candidates’ opinions on those concerns, with the aim of 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

If an employee is involved in a charity’s campaigning activity, and also has personal involvement in a political party, the charity should treat this as a possible conflict of interest, and assess the risks to the charity of that employee have those two roles.

Facilities

If a charity owns premises, a charity may allow a candidate to use those premises for a public meeting, but if it allows the premises to be so used, it should be treated as a normal commercial hire, and charged for at a reasonable rate decided by the trustees, with the same rate being charged for bookings by any other candidate.

A charity may refuse to hire its premises to a candidate or political party if the trustees “have good reason to believe that to hire the facilities to that candidate or political party would alienate the charity’s beneficiaries, users or supporters”, or if the police have advised the trustees that to hire the premises to that candidate or political party “would create a risk of public disorder”.
Brexit…

Charities should note the pointed inclusion in the Commission’s blog post of the following statement:

“…the political context for this likely election is very different from that which people have experienced in the past. Opinion on the key issues around the UK’s departure from the EU does not divide along party lines, and these issues will continue to feature prominently over the coming weeks.”

This seems to be a warning to charities to be especially careful to maintain (and be seen to maintain) independence and political neutrality during the period in relation to any campaigning which involves commentary on Brexit.
The Electoral Commission’s guidance
In addition to the Commission’s blog post, the Electoral Commission has published new guidance for non-party campaigners.

This guidance is intended to help charities (and other non-party campaigners) to understand the rules applicable on such campaigning in the run-up to an election as a result of the Political Parties, Elections and Referendums Act 2000 (sometimes known as the “Lobbying Act”).

It notes that although spending on campaigns and activities will not be regulated in many cases, any charity spending significant amounts of money on issues-based campaigns should work out if any of their campaign spending is regulated, and whether they are subject to the registration and reporting requirements of the Act.

Regulated activities can include:
- election material
- canvassing and market research
- public rallies or public events
- press conferences or other media events
- transport in connection with publicising your campaign
but such activities will only be regulated if they meet two tests, the “purpose” test and, in the case of election material, canvassing and market research, and public rallies or public events the “public” test.

The “purpose test” is that the charity’s activity can reasonably be regarded as intended to influence voters to vote for or against:
- one or more political parties
- political parties or candidates that support or do not support particular policies
- other categories of candidates, for example, candidates who went to a state school, or independent candidates (who are not standing in the name of a political party)
- The “public” test requires the charity’s activity to be aimed at the public or a section of the public (not including the charity’s members or committed supporters).
If a charity’s spending on regulated activities in a particular part of the UK exceeds the threshold applicable (£20,000 in England, £10,000 in Wales and £10,000 in Northern Ireland) during the regulated period before an election, then the charity will have to register and the rules of the Act will apply.

The regulated period is the period of 365 days before the date of the election. Where, however, an election is called at short notice (as in 2017 and now in 2019), the Electoral Commission states that issue based campaigning during the portion of that 365 day period in which it was unknown that an election was approaching is unlikely to meet the “purpose” test. Possible exceptions to this include campaigning that met the purpose test for a local election during the period, or the charity making reference in its campaigning to the general election in anticipation of such an election being announced.

The new guidance from the Electoral Commission has been welcomed by the sector, broadly, as being more readable and accessible than previous guidance. It also contains some statements seemingly designed to give charities greater confidence to continue their campaign work in the period before an election, in particular:

“If you are a charity and abide by charity law and guidance from the relevant charity regulator, in most circumstances your campaign activity is unlikely to meet the purpose test.”

The guidance also now contains some useful case studies regarding some issues-based campaigns that occurred in the run-up to the 2015 and 2017 elections.
Campaigning in Scotland

The rules in Scotland are different to those in England and Wales. Brodies LLP have written a useful blog post on the position north of the border, which we are happy to be able to share.

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Neil Burton

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Here we go again… Charities and campaigning during elections

Guidance from the Charity Commission

How do things change during an election?

Our content explained

Further reading

Charities Act 2022 Final sections coming into force 7 March: land, constitutions, mergers and trustees

Returning and refusing donations guidance published this morning

Neil Burton

Contact Neil Burton

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