Don’t let election rules stop your charity's campaigning

The recent local elections will be the last poll before the next General Election, which the Prime Minister Rishi Sunak has unexpectedly just called for 4 July.

The relevant legislation is confusing and can even seem intimidating to the layperson or trustees without legal expertise. But the reality is that for the vast majority of charities, it will not apply to them and their normal activities, and they can continue doing their important work as usual during election periods. Despite some tweaks to the regulations recently and some new guidance, a few rules of thumb and key things to know will help charities campaign with confidence. 

The primacy of charity law 

If you’re a charity in law (whether registered or not) and not some other kind of not-for-profit entity (for example a CIC), the good news is that if you follow the guidance from the Charity Commission for England and Wales, or the other regulators in Scotland and Northern Ireland as appropriate, there’s a low chance of falling foul of other regulations at election time.

Why? Charity law and the guidance around charities and political activity – CC9 – is well-established and pretty clear. Charities can engage in ‘political activity’ as long as it’s in the service of their charitable objectives. The activity must be related to the charity’s work and its mission, not something unrelated. Political activity also can’t be the main reason the charity exists (as it isn’t charitable in and of itself), and it can’t be the charity’s ‘sole and continuing activity’. Charities must not support or endorse particular parties or candidates, or encourage voters to vote for or against them – ever – election time or not. If trustees ensure their charity sticks to these principles, they’re highly likely to be fulfilling their duties appropriately. 

I find it helpful to think of ‘political activity’ in terms of small ‘p’ versus large ‘P’. You won’t find this in any law or official guidance, but think of small ‘p’ meaning engaging broadly in the political process or with the political system in service of your beneficiaries and charitable mission, which is legitimate and, I would argue, crucial for a healthy democracy. Large ‘P’ means supporting individual politicians or candidates, or urging voters to vote in certain ways – which is against charity law. Small ‘p’ is perfectly fine for charities if you follow the guidance; large ‘P’ is prohibited. 

Whilst this might seem a finely tuned distinction, in practice it’s mostly common sense. The kinds of campaigning or public affairs work that charities normally do will not be a problem if done within the parameters set out above. Charities are free to write letters to MPs or Ministers, to seek to influence political parties to adopt policies that would support their beneficiaries (or to reverse or alter policies that harm them), to speak in public or to the press about these things, and to engage supporters and the public in campaigns to make change happen. This is the case during election periods just as at any other time.  

It’s a misconception that other rules about election spending prohibit this sort of activity – they mainly seek to regulate it via certain thresholds and reporting mechanisms. It’s also worth remembering that the press, some politicians and even parts of the public may not see charities’ legitimate and legal small ‘p’ activities this way – because they often have little understanding of charity law (but that’s a subject for another day). 

The really crucial thing to consider in practice, especially at election time, is whether a charity’s ‘small p’ political activities aren’t favouring particular parties or candidates, and above all not straying into that ‘large P’ territory of influencing voters to vote for particular parties or candidates. For example, by asking only one party to adopt your charity’s policy recommendation, or excluding one party’s candidate from a hustings, or producing leaflets that urge your supporters to vote for or against a certain party or candidate. Those are all things that would run afoul of charity law (but ironically not the elections regulations – more on that next!). 

An attempted summary of UK’s complex elections law regime 

Parliament has passed laws to regulate the activities of political parties, candidates, donors, and so-called ‘non-party campaigners’ – such as unions, pressure groups and think tanks, but also charities and other civil society groups. Much of this is about voting and how elections are held, but the regulations also attempt to exert some control over money and in-kind support (i.e. donations) and the activity it supports in the political system. Even though charities and other civil society organisations normally exert negligible financial influence on elections, their activity can still come under the scope of the rules.  

The Electoral Commission has the difficult task of not just translating this legislation into intelligible guidance, but attempting to regulate political parties and politicians that may rather not wish to comply, especially in the heat of an election campaign when stakes are highest. 

Over recent years there have been concerns that charities and other not-for-profit organisations could be unwittingly swept up into the regulatory regime, causing them to curtail their activities. In 2014, the so-called ‘Lobbying Act’ caused consternation by bringing in new rules on ‘non-party campaigners’. This Act amended pre-existing legislation called the PPERA – the Political Parties, Elections and Referendum Act of 2000. The combined effect seemed to bring civil society organisations further within the scope of the regulations in ways that had not been previously well understood. The PPERA is the major but not the only elections legislation at play here. 

The PPERA includes some key tests, sets spending thresholds, and describes types of regulated activity, in particular around ‘controlled expenditure’, which means ‘any spending incurred in respect of regulated campaign activity’. It gives examples of this expenditure, for example on transport, rallies or public events related to election campaigns, campaign materials (i.e. leaflets), and canvassing or market research. It’s important to remember that multiple aspects (or ‘tests’) must be present for the activity to be regulated, and even then, this is mainly about enforcing a reporting regime on spending to the Electoral Commission. The four tests all need to be present for the activity to count. If any one of them isn’t met, the activity is not relevant. These are: 

1. The Period Test 

The activity must take place within the ‘regulated period’ of the election – in the case of a General Election, this is 365 days before. This nonsensical rule means that non-party campaigners that may incur ‘controlled expenditure’ in the year before the election, which also meets the other three tests below, need to know what that expenditure may be a year in advance. This is regardless of the fact that it’s impossible to think of an example where the governing party has ever called an election that far ahead! Given that the General Election by law must happen by January 2025, we are now in the regulated period.

2. The Purpose Test

Activity which meets this test is that which is intended to ‘promote or procure the electoral success of: one or more political parties; or candidates who support or do not support particular policies; or another particular category of candidates’. If you’re following the key principles of CC9 outlined above, your activity is unlikely to meet this test. A new Code of Conduct from the Electoral Commission also helpfully states that activity is unlikely to meet the Purpose Test if it preceded the General Election period (Period Test) and did not alter during the election period. So, your charity’s long-standing campaign is not likely to count unless you change it substantially in the context of the election. Activity also only meets this test if it can ‘reasonably be regarded as intending to influence voters to vote in a particular way’.

3. The Public Test 

Activity that meets this test must be for the public, meaning in public or for public consumption, rather than solely for an organisation’s members. If you’re sending an email bulletin to your members briefing them on a policy in election manifestos, or asking them to write to their local MP to support a particular policy change, this isn’t ‘public’. If you are hosting related content on your website or sending information to a wider group of ‘supporters’, it is public.

4. The Spending Test

There are financial thresholds which dictate when organisations have to notify and register with the Electoral Commission, and rules about how they have to report their spending on ‘regulated activity’ once they are registered. Organisations can spend up to £10,000 without having to register with the Electoral Commission. If they intend to spend more than that, they need to notify the Commission before the spending happens. If an organisation’s spending exceeds £20,000 in England or £10,000 in Scotland, Wales or Northern Ireland on activity that meets the other tests, it is required to register with the Electoral Commission and report its spending.

Good news on joint campaigning? 

A new Code of Conduct for non-party campaigners  from the Electoral Commission was approved by Parliament at the end of 2023. This was developed because of concerns raised by law firms and civil society organisations and is intended to clarify some confusing areas. The new Code offers some potential helpful clarifications on so-called ‘joint campaigning’, when organisations for example coordinate campaign activities, sign up to a pledge or a campaign that someone else is leading.

This has been problematic in the past, because many organisations were concerned that even though their own spending wouldn’t exceed the thresholds above, it might if it was counted together with others in joint campaigns. The new Code says: ‘If there is no intention to incur expenditure there is no joint campaigning.’ For spending on joint campaigns to count as ‘controlled expenditure’, there ‘must be an agreed understanding [between the campaigners] that controlled expenditure will be incurred to achieve the common purpose.’

Helpfully, some examples in the new Code make clear that endorsing another campaign, adding joint signatures to a letter, or speaking at an event without any financial commitment do not count when it comes to whether something is deemed to be ‘joint campaigning’ and therefore subject to the spending and other ‘tests’ described above. These activities are common in the charity sector and these clarifications should help trustees to be more confident that they’re acting appropriately when their charity for example signs an open letter or supports another charity’s campaign.

What’s next? 

The potential window for a General Election gets smaller with every passing day, and by law it must take place before the end of January 2025. Prime Minister Rishi Sunak has been on record saying it’s likely to happen ‘in the latter part of the year’, and most speculation has pointed towards an October or November poll. 

Keep an eye out for further guidance from the Charity Commission, or a fresh push of its existing ‘Charities, elections and referendums’ guidance, which covers the period from the election being called and the polling date.  

Several law firms have also published helpful guides, for example Stone King has worked with the Legal Education Foundation to do so, and Bates Wells has published a guide with the Sheila McKechnie Foundation. 

Finally, remember the rules of thumb above, and campaign with confidence! If in doubt, refer first to the Charity Commission and CC9. And remember: your beneficiaries and your society need you!  

Want to know more about charity campaigning? Jay Kennedy’s Speed Read on Campaigning will help. Learn more here.