New Electoral Commission guidance for charities: the Lobbying Act shouldn’t stop you from campaigning

Following the publication of new Electoral Commission guidance for non-party campaigners, Douglas Dowell, Policy Manager at the National Council for Voluntary Organisations (NCVO) has written a blog outlining the impact this will have.

At NCVO, we’re always looking for ways to make the campaigning environment more supportive for charities. We’ve supported Lord Hodgson’s recommendations to reform the Lobbying Act and other electoral law for non-party campaigners. We’ve also worked to get government to make sure grants and contracts don’t constrain charities’ right to campaign.

Whatever we think about the law, guidance is also a large part of the story. In England and Wales, the Charity Commission’s guidance on political activity is helpful for interpreting what charity law means for your campaigning all year round. But the Electoral Commission’s guidance on what electoral law means for your campaigning in the run-up to an election hasn’t been clear or reassuring enough. As a result, it’s made lots of charities think the rules are more restrictive than they actually are.

Today, the Electoral Commission is publishing new guidance on the non-party campaigning rules – what we often refer to as the ‘Lobbying Act’. This is the guidance that’s relevant to charities – or at least, some charities, as we’ll see. We’ve worked closely with the Electoral Commission, along with ACEVO and Bond, to make it as helpful as possible. We think the new guidance will give charities more confidence to campaign in regulated periods.

Registration thresholds – most charities don’t spend enough to register

The new guidance makes it clear that charities who don’t spend enough on activity regulated by the Electoral Commission (‘regulated activity’) don’t have to register. Regulated activity means something that could be ‘reasonably regarded as intended to influence voters’ – more on that below. The limits are:

  • £20,000 in England
  • £10,000 in any one of Scotland, Wales or Northern Ireland.

So even if you are carrying out regulated activity, if you’re not spending over these limits, you don’t need to register. (Though remember there are also limits on spending in any individual constituency.) So most charities don’t need to register with the Electoral Commission.

Charities are different and the guidance recognises that

We’re really pleased with the clear acknowledgement in the new guidance that charities are obliged not to be partisan by charity law. The guidance says that if charities follow charity law and guidance from charity regulators, they are generally unlikely to be carrying out regulated activity under electoral law. This means that most charities, so long as you are following Charity Commission guidance on political activity, don’t need to register with the Electoral Commission.

The purpose test is now much clearer

The language on the ‘purpose test’, one of the tests which determines whether what you’re doing counts as regulated activity, is clearer and sharper. The legislation itself refers to activity being ‘reasonably regarded as intended to influence’ voters. This has caused a good deal of confusion among charities, and the new guidance should help in interpreting it. In particular:

  • The old reference to whether your activity includes a ‘call to action’ has been narrowed to ‘call to action to voters’. This is one of the factors campaigners need to consider when deciding if activity meets the purpose test, and a lot of charities understandably worried that virtually all campaigning involved some kind of call to action. The new wording makes it clearer that the Electoral Commission is not considering all campaign asks from charities. It’s only concerned with an explicit or implicit ask to vote for or against candidates or parties.
  • The guidance now defines ‘implicitly promoting parties or candidates’ more tightly. In particular, it now refers to ‘setting out or comparing the merits of the positions of political parties or candidates on a policy’ – not just the positions.

The new guidance is much clearer on what happens if a party adopts a policy you’ve already been campaigning on. Carrying on with what you were already doing or planning to do is unlikely to become regulated activity just because a party’s adopted your policy.

There is reassurance about retrospective regulated period and unexpected elections

Unexpected elections are very topical at the moment, and of course the sector has experience of this from 2017. The new guidance covers this issue and should go a long way to address the concerns charities had in 2017. It makes clear that in the Electoral Commission’s view, campaigners usually can’t reasonably be regarded as intending to influence an election they didn’t know about. This has always been NCVO’s view, and the Electoral Commission took a similar position in 2017 – but it’s much better, and clearer, to have it in the guidance itself.

Campaigning which meets the purpose test for other elections and falls within a regulated period is still regulated activity. Sometimes your language might make it clear you’re aiming at an election even if you don’t know when it is, but your normal campaigning activity isn’t going to be caught out by an unexpected election.

A big step forward

We’re really pleased to see this guidance and we hope it will make charities more confident about campaigning. There are still issues in the legislation that are problematic, such as the joint campaigning rules, and need proper reform. But in the meantime, this guidance makes it clear that the law is a lot less restrictive than many fear. We’d encourage our members, and all charities, to make the most of it.

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