In our recent end-of-year review we concluded:

“For charities and, by extension, for the Churches, surely the most difficult piece of legislation of 2014 in terms of deciding how, if at all, to comply with it received Royal Assent on 30 January. Inter alia, the Transparency of Lobbying, (etc) Act 2014, amends the provisions of the Political Parties, Elections and Referendums Act 2000 on third-party national election campaigns and places additional constraints on “non-party campaigning” in the run-up to future elections and referendums. It came into effective operation on 19 September.”

By the end of 2014, a handful of secular charities had decided to register under the Act including two religious ones: the Salvation Army and Britain Yearly Meeting of the Religious Society of Friends.[1] However, we suggested that more might possibly follow suit since the obligation for campaigners to register within the regulated period which only ends on 7 May 2015, the day of the general election, by which time the application of the legislation and the extent to which organizations’ spending falling within its ambit will be clearer.

On 8 January 2015 the Electoral Commission sent an email to a number of organizations, which commenced:

“I am writing to draw your attention to new rules on non-party campaigning in the Political Parties, Elections and Referendums Act 2000 (“PPERA”) which were recently amended by the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014.

As it is possible the new rules could be relevant to your activities, particularly in relation to your website, I am writing to give a brief overview so that you can consider whether or not you may need to register with the Electoral Commission as a non-party campaigner ahead of the upcoming UK Parliamentary General Election.”

To date, L&RUK has not received any such missive, presumably on the basis that Part 2 of the Act is primarily directed at non-party campaigning organizations which spend in excess of £20,000 in England, or £10,000 in any of Scotland, Wales or Northern Ireland on certain activities satisfying the “purpose test” [2] between 19 September 2014 and polling day for the UK Parliamentary general election, expected to be on 7 May 2015. Nor do we expect to receive one: we don’t have that kind of spare cash and, even if we did, we wouldn’t spend it on third-party campaigning. The organizations known to have been contacted by the Electoral Commission include Paul Staines (Guido Fawkes blog), ConservativeHome, LabourList and LibDemVoice.

The Electoral Commission email continues by explaining [emphasis added]:

“non-party campaigners are individuals or organisations that campaign in the run-up to elections, but are not standing as political parties or candidates. The rules cover spending on certain activities that can reasonably be seen as intended to influence voters to vote for or against political parties or categories of candidates, including political parties or candidates who support or do not support particular policies or issues (the ‘purpose test’). [3]

As well as meeting the purpose test, spending on these activities is only regulated if the activities are also aimed at, seen or heard by, or involve the public (we call this the ‘public test’)”.

Electoral Commission guidance indicates that website content, including blogs, will be considered election material if it meets ‘the public test’ and ‘the purpose test’. By their nature, website content, blogs and social media communications meet the ‘public test’ per se, and will also meet the ‘purpose test’ if: their content can reasonably be regarded as intended to influence voters; and are advertised (or otherwise promoted) to the public in connection with an organization’s campaign. However, the production or publication of any content, other than an advertisement, in a newspaper or periodical is not regulated campaign activity.

One organisation which is probably affected by the Act has flatly refused to have anything to do with it as a matter of principle. According to a report in Civil Society News, the Scottish Council for Voluntary Organisations (SCVO) has decided that it will not comply, whether it falls within the registration criteria or not. John Downie, SCVO’s director of public affairs, was reported as saying that

“Our board looked at the conditions of the tests and took the decision that SCVO would not alter any of its plans to comply with them. The Lobbying Act is yet another attempt to silence charities and prevent us from giving a strong voice to the most vulnerable people in our communities, and criticising and opposing government policy. We simply won’t stand for it.”

Likewise, Paul Staines has replied to the Electoral Commission,

“Dear Electoral Commission, Thanks, but we’re not registering with you and we’re not going to pay any attention to your rules. Yours in freedom, Paul Staines, Editor Guido Fawkes’ Blog”.

Comment

In addition to the legislative provisions, the Electoral Commission has produced a number of non-statutory guidance documents: Introduction to non-party campaigning; Overview of regulated non-party campaigning and Charities and Campaigning. Under section 38 of the 2014 Act, the Commission is under a specific duty (rather than having a general function) to monitor and take all reasonable steps to secure, compliance with the provisions relating to non-party campaigning.To date it has been proactive in relation to non-party bodies and organizations with an overtly political focus – three of the four organizations identified by Paul Staines occupy are ranked 1^st, 2^nd and 4^th in Tead’s (formerly Ebuzzing’s) heading of “top political blogs” for January 2015.

However, a greater degree of uncertainty exists in the case of faith-based organizations where political involvement is not the primary focus. A recent tweet from the CofE’s churchstate provided a link to the Show Up campaign, which “aims to encourage positive Christian engagement in the run up to and beyond the 2015 General Election.” This campaign was launched by Christians in Politics, an “umbrella group of Christians on the Left, the Conservative Christian Fellowship and the Liberal Democrat Christian Forum and backed by the Bible Society”. With supporters from across the political spectrum, Show Up would not appear to fall within the part of the ‘purpose test’ concerns with influencing voters for or against a given political party; provided its focus remains on engagement (rather than voting decisions), it would be difficult to construe how its activities might fall within the other component of the test.

But, this may not be the case for the supporting organizations, many of which have been vocal in their opposition to policies of the coalition government. On 14 January the Daily Telegraph ran the story “Timeline: Church attacks on the state” which comments

“[t]he past five years of Coalition government have seen frequent spats over between politicians and the Church of England; Justin Welby and John Sentamu, the Archbishops of Canterbury and York, have often criticised the government.”

It also carried the piece “Archbishops’ pre-election assault on ‘evil’ of inequality in Coalition Britain” with the subheading “‘Entire cities’ being ‘cast aside’ in a nation where ‘rampant consumerism and individualism’ are the new religion, say Archbishops of Canterbury and York”.

Show up provides a link to the Evangelical Alliance document How to organize election hustings which includes a section on legal advice. This states inter alia “NOTE: Charities must not support or oppose a specific political party. This doesn’t prevent them from supporting or opposing specific policies.” However, there is clearly a very fine line between this and “the purpose test”. In a BBC interview, the Bishop of Manchester, Rt Revd Dr David Walker, discussed the position of the Church of England in relation to political issues in the UK.  He suggested that the House of Bishops might publish a short statement on the areas which it regarded as important for voters to focus on; this would not indicate how to vote, but outline some of the issues to bear in mind.

These and other organizations, blogs &c covered by the Act have until 7 May this year to decide whether to register, or to follow the example of those that have taken a decision to decline.

[1] We had originally been told that the Catholic Trust for England and Wales (the legal entity for the Catholic Bishops’ Conference) also intended it register; but it appears that, after seeking legal advice, the CBCEW concluded that it was not necessary to do so.

[2] i.e. activities that can reasonably be seen as intended to influence voters to vote for or against political parties or categories of candidates, including political parties or candidates who support or do not support particular policies or issues.

[3] activities are: producing or publishing election material (such as leaflets, adverts and websites) to the public; canvassing and market research (which can include polling) members of the public; public rallies and public events; press conferences or other media events; and transport in connection with publicising your campaign (including battle- buses).

[Updated 25 January 2015]