NCVO, the Lobbying Act and registering with the Electoral Commission

As one door closes…

In case you missed it – and we’ve probably all had our mind on other things recently – today, Friday 19th September – is the day that the so-called ‘regulated period’ comes into effect for non-party campaigners. The #indyref race has been run, but the #ge2015 clock has started ticking.

In plain English, non-party campaigners include charities and voluntary organisations. Much of our recent work at NCVO has been about informing the Electoral Commission’s guidance and helping our members understand the new rules, but we’ve also had to take time out to think about ourselves and what the Act means for us in the period until May 2015.

NCVO will not register with the Electoral Commission

So, an announcement: NCVO’s Trustee Board has discussed the Lobbying Act on a number of occasions and, at its most recent Board meeting last week, has decided that NCVO should not register with the Electoral Commission as a non-party campaigner for the purposes of recording ‘controlled expenditure’. The Board made a couple of other decisions too, of which more in a minute.

This is an important decision for NCVO and our board. So, we thought it might be useful if we shared our own board paper, plus a brief insight into our process and discussion. It’s also worth stating at the outset that registering with the Electoral Commission is, in itself, not a bad thing: it’s just that we have concluded it is not necessary for NCVO to register (again, more later on that).

Our recommendations to the NCVO board

In making a recommendations to the Board, we’ve looked at guidance from the Electoral Commission, used our understanding of the Act (and you can see our own guidance for voluntary organisations here) and, finally, we’ve asked our legal advisers to take a look at our paper to the Board. You can read our board paper here. And there’s a template board paper for your own board here. And there’s a series of blogs on the Act and what it’s all about from our resident expert Elizabeth Chamberlain, here.

If you don’t have time to read the paper (and it’s not long), the crux of our argument is that NCVO’s lobbying and campaigning work is unlikely to meet the terms of the Act’s ‘gateway test’. This two-part test asks:

  • could our activities be reasonably seen to be influencing the public’s voting decisions? (the purpose test); and,
  • is our activity likely to seen or heard by the general public (the public test).

Broadly speaking, as a registered charity that already is not allowed by law to support a political party or candidate, and that must ensure that we are (and perceived to be) independent at all times, we think that it is unlikely that our activity could meet the purpose test. And most of our communications are with members, MPs and Peers, who are not designated as the public under the rules.

So, our first recommendation to the Board was that we should not register with the Electoral Commission because we do not believe that we will incur ‘controlled expenditure’ above the threshold for registration, set at £20,000 between now and May.

In the unlikely event that our activities did pass the tests, and we thought that we would spend money that sets the clock ticking towards the £20k threshold, we might need to revisit the decision. So, our second recommendation was that the Board should review the decision not to register at each meeting. Our third recommendation was that should there be a material change in our circumstances between meetings, then the Chair and Chief Executive should be delegated the responsibility to agree that NCVO could register.

The Board discussion

The Board had a thorough discussion of the issues following a presentation from Elizabeth and I. As they had already discussed the Act, they started from a position of some knowledge, so we needed about 30-40 minutes. In addition to our Board paper, and following advice from our lawyers, we reassured the Board that we would put in place a number of internal checks to ensure that we minimise the risk of incurring controlled expenditure: this is especially important given that the cost of staff time sets the counter ticking.

So, we advised the board that we would:

  • ensure to take particular care when responding to policy pronouncements from any party or candidate, and operate an internal sign-off process;
  • take particular care when referring to a specific party or candidate;
  • ensure our policy solutions (such as those in our manifesto) are capable of being adopted by any political party or candidate;
  • ensure that any policy area we work in that does become politically contentious can be shown to be something we have been working on over the long-term.

The Board had a good discussion of how this might work in practice, and asked us lots of questions using specific examples of how it might work. For example, our forthcoming annual report mentions the Lobbying Act: would the cost of producing this therefore be counted as controlled expenditure? The answer? No, it wouldn’t, as our annual report is not aimed at the public. And it would be difficult for someone to reasonably conclude that our annual report was trying to influence the outcome of an election.

The Board made some useful suggestions. First, they would like us to monitor the activities that we think might come under the definition of controlled expenditure so that we can assess our risk in the event of any challenge. Secondly, they have asked us to monitor and note situations where we have made a judgement to change what we would say externally in order to avoid incurring controlled expenditure. Again, this is because the staff time involved in commenting could be costed and totted up so that we cross the £20k threshold

Following our discussion, the board accepted all three recommendations. The board voted on all three recommendations in turn. The entire discussion and the vote was minuted. 

It's not long till polling day, so the regulated period has begun
It’s not long till polling day, so the regulated period has begun

Where next, and what might other organisations learn?

The process of preparing a board paper, explaining the act and our responsibilities, then discussing potential situations was really helpful for trustees and staff. Formally meeting to discuss our response and actions will be useful should we ever need to discuss our external activities with the Electoral Commission. And we agreed some practical actions to minimise the risk of NCVO spending money on activities that might be regulated.

Our next steps internally are that we will run sessions for staff so that they are confident about how to act in the regulated period.

So, this all takes time; and if I am honest, I have found the process hard work and exacting, but certainly in governance terms, rigorous. It’s going to be time consuming and, yes, onerous, having to refer to the guidance on a regular basis.

What I’ve also learnt is that we can manage our activities and that we can – and will – find a balance between speaking out on the issues that matter to our members and staying within the framework that all organisations must now operate under until May 2015.

On a final note, it’s just as – and perhaps for many organisations, more – important to read and understand the Charity Commission’s guidance on speaking out. This is both their general guidance (CC9) and their additional guidance for the period before an election. I suspect for many organisations without the sort of spending power that would necessitate registration with the Electoral Commission, this is the really important guidance we need to read and understand.

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Karl Wilding Karl Wilding served as NCVO's chief executive from September 2019 to February 2021.

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