The many reasons not to worry* about the ‘Lobbying Act’

It’s election time (again! really!), and for charities that campaign or have any interactions with politicians or government officials, they may be worried about the so-called ‘Lobbying Act’. Most shouldn’t. Here’s why.

The vast majority of charities won’t be affected by the Lobbying Act (unless they let themselves be, by self-censoring) because any campaigning they will do is likely to be very cheap (i.e. not big paid-for advertisements on TV) and should not be about influencing voters to vote for particular candidates or parties.

One of the many weird things about the Lobbying Act is it really isn’t about lobbying at all, it’s about spending on public activities during elections. The Lobbying Act doesn’t do much to inhibit secret conversations in smoky backrooms with Ministers and the like. Nor is it a ‘gagging law’ either really – it just tries to control how much so-called ‘third parties’ (including charities, but also businesses and NGOs) can spend on certain things at election times. And if you do spend significant amounts – as in many tens of thousands – you just have to register with the Electoral Commission, which is a big bureaucratic pain, but not an insurmountable barrier. As long as you’re campaigning on a shoestring, like most charities do, you’re very likely NOT to have to register. For example, in the 2015 General Election DSC didn’t register – few charities did.

FAR AND AWAY more important for charities to consider and understand is the Charity Commission’s guidance on campaigning, CC9, and more recently revised guidance Charities, Elections and Referendums. If you’re going to read anything, read those documents. If your charity campaigns, or has politicians on its board, get those two documents under your trustees’ noses pronto and make it an agenda item for them to formally discuss.

A basic premise of established charity law is that charities cannot be politically partisan. They cannot support particular parties or candidates. So if you’re involving politicians in public events at election time do it inclusively, on a cross-party basis, within reason (for example, you don’t have to invite the Monster Raving Loonies to your hustings). Do not endorse any candidateand be wary of appearing to endorse one party or candidate over another in your communications and activities. Common sense, really.

Still not convinced? Still worried about the Lobbying Act? Read on – maybe I can persuade you (or your trustees) to Keep Calm and Carry on Campaigning!

Part two of the Transparency of Lobbying, Non-Party Campaigning and Trades Union Administration Act of 2014 (aka the Lobbying Act) essentially involves, as I’ve said, changes to controls over spending at election times. The ruckus about it all stemmed from the fact that the 2014 Act actually amended a major body of electoral legislation called the PPERA, in a way which increased its scope.

The PPERA is mainly about regulating the spending of political parties. But back in 2013/14, suddenly charities and other campaigning NGOs realised that they might come under the election rules when previously many had been unaware of any exposure. A large scale civil society campaign ensued, but in the end the Act was passed with few changes – however, crucially, the spending thresholds were raised substantially which effectively took most small organisations out of its scope.

The Act requires that expenditure during election periods which can ‘reasonably be regarded as intended to influence voters to vote for or against political parties or candidates’ is regulated by the Electoral Commission. There are effectively four ‘tests’, and all must be met for registration to be required. In other words, these are tests that most folks will want to fail! They are:

1. The Period Test – the activity must take place within the ‘regulated period’ of the election (the law says this is 365 days before a General Election. With the snap election the Electoral Commission has said this still technically applies, so the regulated period apparently stretches back to 9 June 2016. However, it’s hard to see how the EC can reasonably expect people to retrospectively account for past spending on an unanticipated General Election in 2017, which was repeatedly and categorically denied by the Government for much of that period! My bet is that any spending since the announcement on 18 April will get most scrutiny).
2. The Purpose Test – the activity could be ‘reasonably be regarded as intended to influence voters to vote for or against political parties or candidates’ (the vague language is problematic, but basically means the activity has to be construed as attempting to influence people to vote in a particular way. If you’re following charity law, your activity is unlikely to meet the Purpose Test).
3. The Public Test – the activity was for the public (in public or for public consumption, rather than solely for an organisation’s members. So private meetings with Parliamentary candidates = fine. Telling everybody on TV about the meeting with that candidate and how great he/she is = probably counts).
4. The Spending Test – the total value of activity by the organisation amounts to more than £20,000 in England or £10,000 in Scotland, Wales or Northern Ireland (this is the crucial one, mainly because it includes staff costs devoted to activities 2 and 3 above).

The thing with these tests is that your combined activities only have to fail ONE to fail them ALL. And you mostly likely want to fail! Is none of it in public? Fail. Is none of it about influencing voters to vote a particular way? Fail. Does the total spending amount to less than £20k / £10k? Fail. If any of these is true you don’t need to register with the Electoral Commission.

For many charities, the ‘get out clause’ is the Spending Test. The costs of your activity must be over the thresholds to require registration with the Electoral Commission (more problematic exceptions are where you’re part of a joint campaign or focussed on one Parliamentary constituency). But it’s worth remembering, even if you have to register, that doesn’t stop you from doing anything you could do within charity law.

So keep calm and carry on campaigning – if you’re going to worry, then worry about the Charity Commission instead – know your CC9!

*note this is opinion and analysis, not legal advice!

Further information:

Charity Commission – Campaigning and political activity guidance for charities (CC9)

Charity Commission – Charities, elections and referendums

Electoral Commission – Guidance for non-party campaigners

Download our guide to the Lobbying Act here