Charities and the Lobbying Act: the Electoral Commission’s view

Ben WilkinsonBen Wilkinson is head of external communications for the Electoral Commission, overseeing its media relations and public affairs activity and its public information service. Ben joined the Commission earlier this year having previously worked in central government departments.

If you were to believe some of the media coverage over recent days, you might worry that a drive had been launched to silence charities and voluntary organisations. ‘Charities may face criminal sanctions under gagging law’, a Guardian headline reported, for example.

What prompted this fear, and this coverage, is the upcoming general election. Since 2000 under the Political Parties, Elections and Referendums Act 2000, as soon as an  election is announced, rules kick in regulating the spending of campaigners that are not political parties. Charities are included in the definition of ‘non-party campaigners’ and it is therefore important that they are aware of the rules.

But, as is often the case when matters are communicated through the prism of the press, how much charities are actually affected by the rules has been exaggerated. Charities and other non-party campaigners are vital to a healthy democracy and we encourage their active participation during campaign periods. The rules do not prevent them from campaigning and engaging in public debate.

Our interest at the Electoral Commission is on how much is spent on campaigning that can influence voters’ decisions and the outcome of the election: where a significant amount of money is being spent on this type of campaigning, the rules require those individuals and organisations to register with us and declare their spending. Surely nobody can disagree that it is right that voters can see who is spending that money and what they are campaigning for.

What the non-party campaigning rules say

This is how it works: any individual or organisation is entitled to campaign at the general election, but parliament has put rules in place which mean non-party campaigners that intend to spend above a certain amount must register with the Commission.

Not all campaigning is relevant. For example, services provided by volunteers are not included.  This law also does not regulate forms of campaigning such as lobbying ministers for changes to government policy.

To count towards relevant spending for these rules, the money must be used on:

  • campaigning activities that could be reasonably regarded as intended to influence people to vote for or against particular political parties, or for any particular category of candidates
  • campaigning activities that are public facing.

Money spent on campaigning activities such as adverts, websites and public events that meet both of the above tests is considered to be ‘regulated spending’.

The regulated period and the snap election

The period of time over which spending total is calculated – known as the ‘regulated period’ –  always starts 12 months from polling day for a general election. This is a provision in the law, so the Electoral Commission doesn’t have the discretion to make it shorter, even in the case of a snap election such as this one. We have to apply the 12 retrospectively: so for the purposes of the general election on 8 June, the regulated period started on 9 June last year.

We recognise this means the situation has suddenly changed for many campaigners, including charities. Those who were expecting the next general election to be in 2020 may not have anticipated six or 12 months ago to be having to assess their spending in this way now. We appreciate that, for some, this retrospective regulated period will present a challenge.

That is why we are taking a pragmatic and proportionate approach. In particular we recognise that, as a UK general election was not due until 2020, many will not have been running campaigns that could reasonably be regarded as intended to influence people to vote in a particular way.

Do you need to register?

If you represent a charity or voluntary organisation that you think might be affected then what should you do?

If you have spent money on regulated activity prior to the announcement of the election, which now falls within the regulated period, you should determine whether that spending is close to, or already in excess of, the threshold for registering with us at the Electoral Commission. You should then consider whether your planned spending between now and the election will mean you exceed the registration threshold.

If that is the case, we advise you to register. Registering will ensure that your spending is reported and therefore transparent, and that there is no risk of you beginning or continuing to spend in excess of the threshold without being registered. And once registered, nothing stops you from carrying on your campaigning.

Because of the particular difficulties that a snap election entails, we also understand that some organisations may register having already spent in excess of the registration threshold. We are unlikely to consider enforcement action against them, provided they have taken prompt steps.

If you are not sure about whether spending is regulated, you should consider whether registering will remove the risk of you breaking the spending rules. At the general election in 2010, some organisations decided to register pre-emptively as a precaution. They then went on to deliver successful and effective campaigns. You can see examples at the registration page for non-party campaigners on our website.

Most importantly, if you have any questions please contact us – wherever possible we are happy to provide assistance and advice to help you understand and comply with the rules. Or take a look at our online guidance (pdf, 326KB).

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2 Responses to Charities and the Lobbying Act: the Electoral Commission’s view

  1. Kath Dalmeny says:

    I appreciate this article and thank the Electoral Commission for the clarifications. I also appreciate and support the need for spending on elections to be transparent and accountable. I have to say, however, that the practical upshot of the complicated process, dense and unclear guidance, quite onerous reporting requirements and possibility of hefty fines (such as Greenpeace has recently received) has meant that we have largely opted to self-censor rather than risk infringement. The intention may not be gagging, but we are gagged. We have a small staff team and cannot afford detailed legal advice, gleaning what we can from the relevant media and guidance that does not seem to answer our situation. In particular, we have problems assessing compliance implications for organisations working in alliance or partnership – formal or informal. I honestly cannot fathom the practicalities of being responsible for all budgets and spending of a group of organisations calling for a particular policy, if we choose to work together, or are perceived to do so. Nor what triggers the implication of “working together” – joint signing a letter, speaking on a hustings platform, being quoted on a press release? As an example, I have heard of one major advocacy charity waiting in silence to respond to media enquiries, but being too scared to put out a press release itself in relation to core campaign issues, on behalf of vulnerable beneficiaries, for fear of infringement. I run an alliance, and have had responses from some member organisations that they are fearful of activity in this election period, in case they get into trouble for reasons that they do not fully understand – more self-censorship. Additionally, if we needed to register, the reporting requirements are immediately onerous. For all other work, we report quarterly and annually – the Electoral Commission rules are much more frequent and detailed. This is a very considerable offputting consideration for a small charity with limited financial staff already fully committed to the audits and accountability (fully accepted and justified) required by funders. It is also not clear how we can assess reliably whether a policy we champion can be associated with one political party or another, and hence whether that is in effect procuring votes for a particular party. I am thinking of a specific policy that we have championed that now has commitment from the current government to introduce into UK law, and features positively in the main party political manifestos in 2017. At the outset of us advocating this policy, we hoped, but certainly could not have predicted, that this would have such cross-party support. The issues we work on are for public health and sustainability – arguably barely even political issues as they feature so sparsely in political discourse and manifestos. Of course, we want them to be political issues – the future of our health and planet depend on it, but they are currently pushed to the side of the stage. To add to the uncertainties and our members’ lack of confidence in speaking out, some of the advocacy work may have taken place in the back-dated ‘regulated period’, or not, and this ‘regulated period’ came without warning, so we cannot make sensible and accountable plans. It is therefore safer to stay virtually silent. This is the practical upshot, even if it is not the intention.

  2. Elizabeth Chamberlain Elizabeth Chamberlain says:

    Thank you for your comment Kath. I appreciate the amount of confusion and concern about the rules, so I hope you found this blog from the Electoral Commission helpful.
    With regards to how your charity has been affected, I think the key rules to consider when undertaking any of the activities you mention are in charity law (so the Charity Commission’s CC9 guidance and elections guidance). Provided you are acting in a way that ensures your independence, I don’t expect the Lobbying Act would cause you any problems. After all, the cost of the types of activities you mention wouldn’t bring you anywhere near the registration threshold of £20,000 – signing a joint letter costs nothing, and neither does being quoted in a press release.
    As you point out, you are a small charity with limited financial resources – I doubt you would be spending the necessary amounts to bring you within the Electoral Commission’s radar.
    So if it’s not too late, sign up to that joint letter, and speak at your local hustings, or at any other opportunity you have.