European elections 2019 and charity campaigning

Few people could have predicted we’d end up holding two unexpected elections in as many years until very recently. Still, that’s what seems overwhelmingly likely to happen. Theresa May confirmed that the UK would prepare to hold elections to the European Parliament on 5 April and everything is legally set up for that to happen.

Barring some extremely unlikely political developments, the European elections will therefore take place on 23 May. This means that, as in 2017, we’re now in a regulated period which no one expected. The regulated period – the timeframe within which activity might be regulated by the Electoral Commission – began on Wednesday 23 January. Unlike in a UK general election, the regulated period is only four months – not 12.

It’s a retrospective regulated period, but keep calm

That obviously means charities will have been campaigning during a regulated period without knowing it. But remember that your work has to pass the purpose test to be regulated campaign activity, even if it did take place after 23 January. The test is whether it ‘can reasonably be regarded as intended to promote or procure electoral success at any relevant election’.

The government didn’t legally appoint a date for the elections until 8 April. Given that no one expected these elections to happen, it follows that it’s very hard to reasonably think that charities’ campaigning before this month could have been intended to influence European elections. Very few people try to influence elections they don’t know are going to happen!

As a result, at NCVO we think it’s extremely unlikely that charity campaigning could be deemed to be attempting to influence the European elections until we actually knew there were going to be elections.

So what happens now we know?

Now we do know European elections are almost certainly going to take place, charities who are doing any campaigning activity should ask themselves some simple questions:

• Will you be spending over £20,000 in England, or over £10,000 in any one of Scotland, Wales or Northern Ireland, on any campaigns over the regulated period? If not, you do not need to register with the Electoral Commission, even if all of it counts as regulated activity
• If so, could any or all of your campaign spending be reasonably regarded as intended to influence the outcome of European, general, devolved or local elections? Spending which doesn’t pass that test doesn’t count as regulated activity
• Is your campaigning aimed at, seen or heard by, or involving the public or a sufficient section of the public? If not, it doesn’t count as regulated activity. (Note that your members and ‘committed supporters’ don’t count as the public here).

Charities can consult the Electoral Commission’s guidance.

It’s also worth remembering that having to register with the Electoral Commission to do something isn’t the same as not being allowed to do it – this isn’t the same as the Charity Commission’s guidance on political activity (which charities should also consult), which sets out what charities are able to do under charity law.

Don’t be afraid to campaign

Obviously, whether charities can campaign and whether they wish to campaign with a specific focus on the European elections are two different questions. It may be that a lot of charities will think it’s very hard to see how candidates can meaningfully be influenced in line with their priorities in these particular elections, given the wider context.

But if you don’t see much campaigning in these elections, it shouldn’t be due to the regulatory framework – even though we think it should be reformed. And if your judgement is that it is a good way to achieve your charitable objectives, please don’t feel the rules should hold you back. We’re also more than happy to talk to members if they have concerns or questions.