Another general election? A Lobbying Act reminder

If, like Brenda from Bristol, you're thinking "not another one", it might be because your charity undertakes campaigning activity and the inevitability of (yet) another general election has raised the prospect of the charity's registration with the Electoral Commission.

Campaigning and political activity by a charity is perfectly acceptable, provided that it is undertaken as a means of delivering the charity's purposes.  For example, a charity can campaign for a change in the law or policy, if that change would support the charity's purposes.  Most of the time, there is no limit on the extent to which a charity can engage in political activity, provided that it does not become the only way in which the charity pursues its objects and that it does not become partisan or party political in nature.

However, since the advent of the Lobbying Act (full name: Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act) in 2014, charities have had to be careful about how much they spend on certain campaigning activities in the lead up to an election.  This is because, if charities spend more than £20,000 in England or £10,000 in any of Scotland, Wales or Northern Ireland on "regulated activities", they must now register with the Electoral Commission as "non-party campaigners" if they are to avoid a hefty fine.  In 2017, Greenpeace became the first charity to be sanctioned under the Act – a vocal opponent of the legislation, it refused to register prior to the 2015 general election as an "act of civil disobedience" and was fined £30,000.

Regulated activity

The following activities will constitute regulated activities if they can "reasonably be regarded as intended to influence voters to vote for or against political parties or categories of candidates, including political parties or categories of candidates who support or do not support particular policies or issues" (known as the "purpose test"):

• press conferences and other events organised by or on behalf of a charity to which the media have been invited; and
• transport of people in order to publicise a campaign – in a "battle bus", for example.

Spending on the following activities will be regulated if, in addition to meeting the purpose test, they are aimed at, seen or heard by, or involve the public (known as the "public test"):

• the production or publication of election material, such as leaflets, adverts, websites and blogs;
• canvassing and market research, including door-knocking and using phone banks to call members of the public; and
• rallies and events, including members-only rallies and events that can be seen by the public.

A charity's members and "committed supporters" (including regular donors, individuals who pay an annual subscription and people who are actively involved in the organisation) are not considered part of the public for the purposes of the public test.  Generally, activities aimed exclusively at members or committed supporters will not meet the public test and so will not be considered regulated campaign activity.

However, people with whom a charity regularly communicates, such as people who have signed up to social media feeds or email updates, will be classed as members of the public unless they are also members or committed supporters.  This means that a charity with a general mailing list that includes people besides members and committed supporters needs to assess what proportion of the list is made up of members of the public, and apportion the costs of communicating with those people accordingly.

Once a charity has registered as a non-party campaigner, its spending limit is increased but it must then report to the Electoral Commission on its spending.

Retrospective application

When the new rules were introduced, they were branded in some quarters as a "gagging law" because it was felt that they would deter charities from campaigning in the run up to elections.  The Electoral Commission justified the rules on the basis that the public ought to be able to see who was spending significant sums of money on activity that might influence voters' decisions and the outcome of elections, and also what they are campaigning for.  But the real problem with the rules is not the spending limit itself but rather its retrospective and sometimes sudden application.

Any spending by a charity on regulated activity will count towards its regulated spending total if it is – or was – incurred during the "regulated period" before an election.  Were elections only ever called in accordance with the Fixed-term Parliaments Act, charities would know roughly when the next general election was due to take place, which would enable them to plan their campaigning spend with at least some confidence.  But, as we saw last year, a snap election can be called at any time, and charities can find themselves almost at the end of a regulated period without warning.  The regulated period for general elections is 12 months (it is four months for European and other national elections), and so charities that undertake a significant amount of spending activity may find themselves in a position where expenditure that was previously legitimate has suddenly fallen foul of the limit.

What should my charity do?

Once the date for an election has been set, the regulated period will be deemed to have commenced 365 days earlier.  Charities that have spent money on regulated activity since that date will need to determine whether they are close to, or have already exceeded the threshold for registration with the Electoral Commission.  They will also need to consider whether their planned spending prior to the election will mean them exceeding the threshold for the year.  In the event that a charity may or is likely to exceed the threshold (or if it is not sure about whether its spending is in fact regulated), the Commission advises that it registers online as a pre-emptive measure.

To be fair to the Electoral Commission, it does recognise the difficulties that a snap election entails and so, if another snap election is called it is likely to take the same approach that it took to the one in June 2017, giving charities the benefit of the doubt where possible.  In particular, it will understand that some charities may have to register having already spent in excess of the threshold, and it will be unlikely to take enforcement action provided that those charities act promptly.