General Election 2019: campaigning and political activity by charities

In the course of the day-job, I posted a rather shorter version of the following on the website of the Churches’ Legislation Advisory Service.

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The relevant legislation

Campaigning by charities during elections and referendums is governed by Part VI (Control of donations to registered parties and their members etc) of the Political Parties, Elections and Referendums Act 2000, which must be read in conjunction with Part 2 (Non-party campaigning etc) of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014.

Further, quite apart from the specific rules around campaigning at election time, church congregations are bound as charities by the terms of their domestic charities legislation – in England & Wales the Charities Act 2011, in Scotland the Charities and Trustee Investment (Scotland) Act 2005 and in Northern Ireland the Charities Acts (Northern Ireland) 2008 & 2013 – and those restrictions apply to charities whether or not they are registered as charities with their territorial regulator. Registration is about the degree of regulation to which the charity is subject, emphatically not about charitable status itself.

The basic rule in all three jurisdictions is that a charity must not support or oppose a specific political party, because purely partisan political activity is not a charitable purpose – though that bar does not prevent charities from supporting or opposing specific policies. Says the Charity Commission for England & Wales:

“a charity must not give its support to any one political party. It may express support for particular policies which will contribute to the delivery of its own charitable purposes so long as its independence is maintained, and perceptions of its independence are not adversely affected.”

Charity Commission guidance

The Charity Commission for England & Wales has republished its Guidance on Campaigning and political activity guidance for charities, first published in 2008 (similar considerations apply in Scotland and Northern Ireland) and has also published a (brief) Charity Commission News: 2019 General Election special. The key points of the Commission’s guidance on campaigning and political activity by charities are as follows:

“1. Legal requirement: to be a charity, an organisation must be established for charitable purposes only, which are for the public benefit. An organisation will not be charitable if its purposes are political.

2. Campaigning and political activity can be legitimate and valuable activities for charities to undertake.

3. Legal requirement: however, political campaigning, or political activity, as defined in the guidance, must be undertaken by a charity only in the context of supporting the delivery of its charitable purposes. Unlike other forms of campaigning, it must not be the continuing and sole activity of the charity.

4. There may be situations where carrying out political activity is the best way for trustees to support the charity’s purposes. A charity may choose to focus most, or all, of its resources on political activity for a period. The key issue for charity trustees is the need to ensure that this activity is not, and does not become, the reason for the charity’s existence.

5. Charities can campaign for a change in the law, policy or decisions where such change would support the charity’s purposes. Charities can also campaign to ensure that existing laws are observed.

6. Legal requirement: however, a charity cannot exist for a political purpose, which is any purpose directed at furthering the interests of any political party, or securing or opposing a change in the law, policy or decisions either in this country or abroad.

7. Legal requirement: in the political arena, a charity must stress its independence and ensure that any involvement it has with political parties is balanced. A charity must not give support or funding to a political party, nor to a candidate or politician.

8. A charity may give its support to specific policies advocated by political parties if it would help achieve its charitable purposes. However, trustees must not allow the charity to be used as a vehicle for the expression of the political views of any individual trustee or staff member (in this context the Charity Commission means personal or party-political views).

9. Legal requirement: as with any decision they make, when considering campaigning and political activity charity trustees must carefully weigh up the possible benefits against the costs and risks in deciding whether the campaign is likely to be an effective way of furthering or supporting the charity’s purposes.

10. Legal requirement: when campaigning, charity trustees must comply not only with charity law, but other civil and criminal laws that may apply. Where applicable they should also comply with the Code of the Advertising Standards Authority.

11. A charity can campaign using emotive or controversial material, where this is lawful and justifiable in the context of the campaign. Such material must be factually accurate and have a legitimate evidence base.

12. The principles of charity campaigning and political activity are the same, whether the activity is carried out in the United Kingdom or overseas.”

The Electoral Commission

The Electoral Commission has published two linked pieces of guidance: Non-party campaigners: Where to start and General Election guidance for non-party campaigners. The regulated period for non-party campaigners started on 13 December 2018 (365 days before polling day) and will end on 12 December 2019. Briefly, under the provisions of the Transparency of Lobbying, Non-Party Campaigning (etc) Act you must register as a non-party campaigner with the Commission if you spend, or plan to spend, more than £20,000 in England or £10,000 in any of Scotland, Wales or Northern Ireland on “regulated campaign activity” during a regulated period. During the regulated period, there are rules about how much non-party campaigners can spend on “regulated campaign activity”.

Spending on the following activities can be regulated:

  • election material;
  • canvassing and market research;
  • public rallies or public events;
  • press conferences or other media events; and
  • transport in connection with publicising your campaign

The purpose test applies to any of the five campaign activities and is met if the activity can reasonably be regarded as intended to influence voters to vote for or against:

  • one or more political parties;
  • political parties or candidates that support or do not support particular policies; and/or
  • other categories of candidates, for example, candidates who went to a state school, or independent candidates who are not standing in the name of a political party.

The public test applies to election material, canvassing and market research, and public rallies or public events. It is met if the activity is aimed at the public or a section of the public: a charity’s members and committed supporters do not count as” members of the public”.

For spending to be regulated, it must meet the purpose test: in addition, for the three types of activity covered by it, the public test must also be met.

For small groups and parishes, etc, that are only going to put on a hustings, it is almost certain that registration is not going to be necessary because it is extremely unlikely that any individual congregation is going to exceed the expenditure triggers under the Act. That said, however, Quakers in Britain did register as a non-party campaigner for the General Election in 2017.

Hustings

JPIT (the Joint Public Issues Team of the Baptist Union of Great Britain, the Church of Scotland, the Methodist Church and the United Reformed Church) has published a very helpful hustings resource for churches who are thinking of holding local meetings at which electors may meet and question the candidates. On the issue of whether you have to invite all candidates (or what has to be done if you hold a “selective” hustings) the answer is that you do not – but if you do not, you must have an objective, impartial reason for not including all candidates.

The simplest approach is to invite all the relevant candidates in the area or all political parties campaigning in the election and allow all those attending an equal opportunity to participate. However, this may not always be practical. For example, there may be so many candidates or parties standing that a meeting would be hard to manage. If you decide not to invite all candidates, there are some good-practice recommendations you should follow to ensure that your hustings is genuinely not promoting particular candidates or parties more than others.

Not inviting a particular candidate because you do not agree with his or her policies is not an impartial reason.

Other useful links

Frank Cranmer (Secretary, CLAS)

Cite this article as: Frank Cranmer, "General Election 2019: campaigning and political activity by charities" in Law & Religion UK, 13 November 2019, https://lawandreligionuk.com/2019/11/13/general-election-2019-campaigning-and-political-activity-by-charities/

 

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