Charity campaigning in the pre-election period
As the country shifts into “campaign mode” following the announcement of a general election on 4 July 2024, many charity trustees may be wondering about whether, and how, they can perhaps use that momentum as an opportunity to promote their charity and its goals.
We thought this might therefore be a helpful moment to provide a reminder of the rules that apply to charities campaigning during an election period, in order to assist trustees thinking about what sort of campaigning might be appropriate and helpful for their charity at this time.
Although UK charities are not permitted to exist solely for a political purpose, charitable campaign activity – particularly relating to public and social issues – is often, inevitably, related to wider political objectives. For example, a charity seeking to provide support to refugees in the UK might seek changes to the laws on refugee rights, or a health charity might seek to promote the benefits of a balanced diet in reducing heart problems.
In this article, we look at the principles that apply to campaigning generally, as well as the more specific rules that apply in the run up to a general election.
Regulatory framework
The rules for charities are set out in the Charity Commission Guidance on Campaigning and Political Activity, and the Electoral Commission’s Non-Party Campaigner Code of Practice, which came into force last December. Relevant laws include the Elections Act 2022, the Lobbying Act 2014, the Political Parties, Elections and Referendums Act (PPERA) 2000 and the Representation of the People Act (PRA) 1983.
In the context of this guidance:
- Campaigning means efforts to educate the public by mobilising their support on a particular issue, or to influence public attitudes; and
- Political activity is any activity aimed at securing or opposing any change in the law or decisions of government, local authorities or other public bodies in the UK or abroad.
Key principles
Before we dive into the rules that are specific to election time, below are the key principles that trustees need to be aware of when undertaking campaigning or political activity in general.
- 1. A charity cannot exist for a political purpose only. Charities can only be established for charitable purposes – i.e., one of the 13 purposes that are defined as charitable under the Charities Act.
- 2. Campaigning and political activity must be undertaken by a charity only in the context of supporting the delivery of its charitable purposes. This means they can conduct political activities, such as campaigning for a change in the law or policy, but only if it helps to support or further their charitable purposes.
- 3. A charity must not give support or funding to a political party, candidate or politician. In the political arena, a charity must stress its independence and ensure that any involvement it has with political parties is balanced.
- 4. 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 relevant Code of the Advertising Standards Authority.
- 5. The principles of charity campaigning and political activity are the same whether the activity is carried out in the UK or overseas. But if a charity carries out activity overseas, its trustees will need to consider the laws that may apply in that jurisdiction too.
Provided trustees follow the five principles above, they shouldn’t fall foul of charity or electoral law. As always, though, it is crucial for trustees to think about not just compliance with the law and guidance, but the “court of public opinion” – public perception of a charity’s activities matters, and is much harder to predict and control.
For this reason, charity trustees should remain conscious of how the public perceives the charity’s campaigning, especially if this echoes or is closely tied with a particular party or person, to avoid the risk of reputational damage.
Campaigning during the election period
Where a charity campaigns during the election period, the key question that trustees need to ask is: do you expect to undertake regulated activity with a value over the spending threshold during the regulated period?
So, to break that down…
- 1. What is a regulated activity?
Regulated activity is defined using the “purpose test”. This asks whether the activity can reasonably be regarded as intended to promote electoral success for:
- a. One or more registered parties;
- b. One or more parties who advocate particular policies; or
- c. Candidates who hold particular opinions or policies.
If the activity falls into any of the three categories above, it will constitute regulated activity.
While it’s usually fairly obvious if an activity falls within category (a) above, categories (b) and (c) can be less clear-cut, and so carry more risk for charities. For example, a housing charity advocating for reforms to housing law might find that its campaign aligns with the policies of a particular political party, which makes the charity appear to be promoting that party’s electoral success.
- 2. What is the regulated period?
The regulated period is the 12 months preceding a general election. Given that the general election will now be on 4 July 2024, the current regulated period therefore runs back to July 2023.
The Electoral Commission Guidance does state that if trustees cannot reasonably be expected to know they were in a regulated period, they cannot be deemed to have been promoting electoral success for one party or another. However, given that we have known for some time that an election would be called in the second half of this year, trustees could reasonably be expected to have known that they were in a regulated period from around the start of 2024.
- 3. What is the spending threshold?
In England, the spending threshold is £20,000 spent on campaigning activity. This threshold is lower in Scotland, Wales and Northern Ireland, at £10,000. There is also a lower-tier campaigners’ threshold of £10,000 throughout the UK, which carries some, but fewer, compliance requirements, and a limit of £700 for charities not based in the UK.
If a charity’s activities meet the three tests above, the charity must register with the Electoral Commission as a non-party campaigner before it exceeds this threshold, and must then comply with the relevant controls that the Electoral Commission sets out on this spending. This involves submitting detailed reports before and after the election.
Charity trustees must also be aware of the legal requirement to include an imprint on all digital material that meets the regulated campaign criteria above. This imprint should make it clear who is responsible for publishing and promoting the campaign material. There is some useful information about this requirement in the Electoral Commission’s Guidance.
In addition to the regulations discussed above, where a charity is undertaking regulated activity it will also be important for trustees to consider compliance with the requirements of the Companies Act 2006, the Advertising Code of Conduct, defamation and privacy laws and the Registrar of Consultant Lobbying.
Next steps
Our key recommendation for charities undertaking campaigning or political activity is to go back to the fundamental principle and ask: is this campaigning furthering the charity’s charitable objects and supporting the delivery of its charitable purposes?
Risks usually arise when a campaign becomes mixed up in a political message that is not directly furthering the charity’s goals. At this point, trustees should pause to reconsider how the activity is furthering the charity’s purposes, and whether they can demonstrate to regulators that the activity is charitable, rather than political.
If you have any queries about the topics discussed above, or there are any other issues we can help you with, please do get in touch with Laura Sherratt or another member of the charities team.
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