A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
New rules on political campaigning have been brought in under the Lobbying Act, and now further guidance from the Electoral Commission has been published (see links below) as to how non-party campaigners (individuals or organisations that campaign in elections but are not standing as political parties or candidates) are affected. The rules are intended to limit campaigners’ activities in the run up to an election and limit on the amount of money spent on regulated campaigns. So is there anything for charities and voluntary organisations to consider for when the new rules go live from 19 September 2014?
Are you a non-party campaigner?
Non-party campaigner is a wide definition. It will include many charities and/or voluntary organisations but the real issue is whether you carry out regulated campaigning activities (see below). The Charity Commission’s head of policy engagement has said that they don’t expect many charities to have to register with the Electoral Commission as third-party campaigners and Parliament’s intention was that the rules are not intended to restrict the normal campaigning activity of charities or campaigning groups. But many charities could still be caught.
Are you carrying out regulated campaigning activities?
Regulated campaigning activities are campaigning activities that
- can reasonably be regarded as intended to influence voters at elections (the Purpose test); and
- are aimed at, seen by or involving the public or a section of the public (the Public test).
Influencing voters includes enhancing or reducing the prospects of specific political parties, candidates or groups of candidates that support particular policies or issues. But you don’t have to name a political party or group of candidates to influence voters. Material can be covered by the rules even if it is intended to achieve something else, such as raising awareness of a public policy issue.
- naming candidates who support your policy position in publicity material (including naming those who don’t) – even if you give both sides of the argument;
- starting a campaign for a change in the law in the run up to an election; or
- a long term campaign which is “adopted” by a political party in the run up to an election - although your historic work would not be regulated, subsequent campaigning may be if you publicise the support or alter your campaigning activity in the light of the political party’s support.
As well as election materials distributed to the public, the rules cover spending on events (e.g. public events and rallies), media work, publications and communications such as leaflets, adverts and websites, canvassing or market research, polling and transport, including the staff costs of all these activities.
What doesn’t count is material that a charity sends to its members and committed supporters as long as it deals with issues that fall within the charity’s aims and objectives. The exact nature of a ‘committed supporter’ will vary between organisations, but could include:
- regular donors by direct debit;
- people with an annual subscription; and
- people who are actively involved in your organisation.
It will not include the wider range of supporters, such as those you may update via Twitter and other social media (which carries its own dangers of being seen to be too political in some arenas, as Oxfam found to its detriment recently).
If you are carrying out regulated campaigning activity, is it a regulated period (or coming up to a regulated period)?
There is a set time period where campaign spending limits and the rules apply. This time is called the regulated period. The regulated period for the 2015 UK Parliamentary General Election starts on 19 September 2014 and ends on polling day - 7 May 2015. It will usually be 365 days prior to a general election and four months from all other elections.
The rules apply to the UK General Elections, and elections to the European Parliament, Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly. The rules do not apply to local campaigns: this is regulated but by a different set of rules.
Even though the rules apply within the regulated period, you can’t stock pile materials produced outside of the regulated period to be used in the run up to an election!
If you are carrying out regulated campaigning activity, in a regulated period you will need to: -
1. Estimate the likely costs (controlled costs) of those activities
A charity must register with the Electoral Commission if it is spending more than £20,000 in England or £10,000 in Scotland, Northern Ireland or Wales on regulated campaigning activities during the regulated period. The following costs don’t count as controlled expenditure:
- disability accessibility costs
- safety and security costs
- translation costs to and from Welsh.
Controlled expenditure does include staff costs. You won’t have to set up complex time recording systems, just provide an honest, reasonable assessment of time spent, with a form of paper record to justify it. Volunteer time and expenses don’t count in the calculation of costs incurred in relation to controlled expenditure, provided those volunteers are not reimbursed.
2. Estimate whether the costs relate to activity in particular constituencies
There are new spending limits at constituency level (£9,750 in each constituency). These apply when a non-party campaigner is targeting its expenditure at constituency level and the spending is going to have a significant effect in that constituency or constituencies but no significant effect in another constituency or constituencies.
3. Consider whether your plans include coordinated campaigning with other organisations?
The ‘joint campaign’ rules exist under both the current rules and the new rules. Organisations working ‘to a joint plan’ have to count all spending as part of the plan towards their own limits, regardless of their individual contribution. The new rules make it possible for a minor campaigner, working with other campaigners and whose spending is below the registration threshold, to nominate another campaigner as the ‘lead campaigner’. The lead campaigner would take responsibility for registering with the Commission and reporting the overall spending.
4. Calculate whether planned spending will exceed the threshold that requires registration with the Electoral Commission
Charities will need to keep a check on planned and actual expenditure on regulated campaigning activities during the regulated period. If planned spending is going to exceed the thresholds for national or constituency spending or spending unexpectedly exceeds the thresholds during a regulated period it will be necessary to register with the Electoral Commission.
If spending will exceed the thresholds you may need to register with the Electoral Commission
Once registered, a non-party campaigner must follow certain rules on how it manages and reports its spending on regulated activities, and on which donations it can accept. In particular, a registered non-party campaigner must:
- record and report their spending (including spending focused on individual constituencies)
- check the permissibility of donations received above a certain amount that go towards regulated activities
- comply with pre-poll and post-poll reporting obligations
- submit a spending return after the election.
There is also a requirement to submit a statement of accounts but charities are unlikely to need to do this because they already submit accounts to the Charity Commission.
Don’t forget … charities must also, first and foremost, comply with Charity Commission guidance on campaigning and political activities and its supplementary guidance on ‘Charities, Elections and Referendums’.
Links and References:
Also see flowchart taken from Electoral Commission: [media type="link" id=538]
For more information
Contact Sarah Tomlinson.
This ebriefing considers the Government’s proposals for challenges, as set out in Chapter 7 of the Green Paper entitled 'Fast and fair challenges'.
We’re delighted to announce that we have been ranked in the top five national legal advisers in the Top 3000 Charities 2021 directory.
The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
Changing charitable purposes and amending governing documents.
Charity registration financial thresholds.
One of the stated aims of the Green Paper is “to deliver the best commercial outcomes with the least burden on the public sector".
The proposals concerning dynamic purchasing systems (DPS) and framework agreements are the most disappointing aspect of the Green Paper.
Family team partner, Elizabeth Wyatt, is delighted to congratulate Kadie Bennett for attaining Resolution Specialist Accreditation in both children law - private and complex financial remedy matters.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.