Additional FAQs for charities in the Electoral Commission’s guidance

Over the past couple of months we have been talking to the Electoral Commission about the need for further clarity for charities. The Electoral Commission has now updated its list of Frequently Asked Questions to include some specific issues about charities and campaigning.

The FAQs now provide some helpful guidance on:

  • what happens if a political party decides to support the stance of a charity on a particular issue;
  • when raising awareness of an issue can still meet the purpose test.

These were probably two of the thorniest issues for charities both throughout the Parliamentary debates, and confusion remained following the publication of the Electoral Commission’s guidance in the Summer.

We have worked with the Commission to develop these additional FAQs, so I really hope that people find them helpful.

Our main objective was not only to provide clarity but also to reassure charities that, as long as they are complying with charity law and carefully following the Charity Commission’s CC9 guidance, it is unlikely they will need to register.

Unlikely, but not impossible. There will be circumstances when a charity carries out activities that can ‘reasonably be regarded’ as regulated activities AND reach the £20,000 registration threshold. For example when a charity is campaigning in support of a policy issue that is closely and publicly associated with a particular party, and builds up its activities on the endorsement (or opposition) received by a political candidate (see the factsheet on support by political parties published by the Electoral Commission).

What’s reasonable

I know some people have said that what’s ‘reasonable’ is subjective and confusing. However it’s a very common legal principle. No law will go further than basing its provisions on reasonableness. Yes, it’s in the eye of the beholder, but ultimately, that’s all that law can be – you can’t perform a scientific test for legality.

If it’s any consolation, there’s a far more confusing reasonableness test sometimes used in law – the circumlocutory ‘Wednesbury unreasonableness test’ – where the question is whether a decision is ‘so unreasonable that no reasonable person acting reasonably could have made it’.

Charity Exemption

A question lots of people ask is ‘Why not exempt charities from the Lobbying Act entirely?’. During the passage of the bill through parliament, some suggested that charities could be exempted from the provisions because they are already governed by charity law, and the Charity Commission prevents them from undertaking activity that could be regulated by the Lobbying Act.

I thought it might be helpful to address that as I think there are some misunderstandings. There are a number of reasons why an exemption for charities would not have been workable, or desirable, and why neither we nor the Harries Commission recommended it.

Legal issues

  • First of all, it is the activity of the organisations that is regulated not the type of organisation carrying out the activity. The Lobbying Act is interested in the effect of your actions, not who you are. It wouldn’t make sense for some organisations to get an exemption from something the law is trying to stop everyone doing.
  • As explained above, it’s not the case that charities can never come into the scope of the Lobbying Act, even while working within the Charity Commission’s guidance. It may be unlikely, but not impossible.

Abuse issues

  • An exemption could have created incentives for campaigners to find ways so they could carry out as much political campaigning activity as possible via a charity rather than a non-charity, in order to avoid or minimise the impact of the spending and donation controls.
  • This would put the Charity Commission under considerable extra pressure as organisations sought charitable registration in order to exempt themselves from the Lobbying Act

Perception and public trust issues

  • The rules are intended to promote transparency. Although much has been said about the administrative burden of registration, organisations – including charities – are not acting illegally if they carry out activities that require them to register with the Electoral Commission. But if charities had been exempt from transparency requirements altogether this could have been perceived by the public as preferential treatment.
  • If an exemption had been introduced, organisations promoting different views on a policy issue that may be closely associated with particular parties in the minds of the public would have been subject to different types and degrees of regulation: charities would have been able to spend unlimited amounts provided they are acting within charity law, while all other organisations would be subject to the tighter restrictions introduced by the Act. This would most likely have undermined public trust and confidence in charities in the long term.
  • A blanket exemption could have been seen as charities not wanting to adhere to transparency requirements, despite many (including NCVO) wanting to set the highest standards in order to maintain public trust and confidence.

So what we have aimed to do is ensure that charities do not open themselves up to this type of criticism, but that they are as clear as possible about the rules and when they apply. The feedback and comments we have been receiving from our members was extremely useful and key to our conversations with the Electoral Commission, so please do continue to tell us about your work between now and the general election.

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Elizabeth was head of policy and public services at NCVO until 2020.

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