Campaigning Legal Guide: Politics, Elections and Lobbying.2019

CAMPAIGNING LEGAL GUIDE:
POLITICS, ELECTIONS AND LOBBYING

2019
REUTERS/STEFAN WERMUTH
2 Campaigning Legal Guide: Politics, Elections and Lobbying
Acknowledgements
The Thomson Reuters Foundation is extremely grateful to the following authors of this Guide. This Guide
would not have been possible without their expertise, time and commitment to pro bono work.
Simon Steeden is a partner in the charity and social enterprise team at

Bates Wells and co-leads its specialist political and campaigning law team.
He is recognised as a leading individual for election law advice in the Legal
500 and provided legal advice to Lord Hodgson on his review of the
changes made to non-party election law by the ‘Lobbying Act’ in 2014. He
has recently finished six years as a director of Friends of the Earth, England,
Wales and Northern Ireland and is a trustee of the Charity Law Association.
Jess Collings is a solicitor working across the dispute resolution and charity
teams at Bates Wells, with a particular focus on all things political. She
advises political parties, candidates and campaigners on election rules,
internal disputes, regulatory issues and getting their message across
effectively whilst complying with the legal frameworks that apply.
DISCLAIMER
This Report and the information it contains is provided for general information purposes only. It has
been prepared as a work of legal research only and does not represent legal advice in respect of the
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changes in the law since the research was finalized in 2019. Legal advice should be obtained from
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the Thomson Reuters Foundation not any other contributor to this Report is holding itself, himself or
herself out as being qualified to provide legal advice in respect of any jurisdiction as a result of his or
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About CAMPAIGN BOOTCAMP

Campaign Bootcamp is a charity dedicated to ensuring that people most impacted by injustice are
leading campaigns that affect their lives, from better housing to fairer treatment of migrants and
LGBTQ+ rights. Our graduates wage important, successful campaigns, testify before Parliament,
appear in the national and international press, organise demonstrations, get elected to local
government, and change laws.
We do this work because we’ve found that today it’s far too hard for ordinary people, especially
those in marginalised communities, to challenge those in power. Because of this, injustices persist
and millions of people do not live happy, safe and fulfilled lives.
Our programmes are designed to be accessible to anyone who wants to make change happen. If
you want to learn how to run powerful campaigns go to www.campaignbootcamp.org to find out
more about our training, including how to apply. You can also check out our range of stories, free
resources, and our blog about our programmes and what our graduates get up to outside of camp.
Campaign Bootcamp Residential is a week-long training programme that supports you to develop
the skills, confidence, and community to run powerful campaigns.
The training brings together 35 budding campaigners and activists from across the country (and
sometimes further afield) to learn and build a community together.
In the course of a week, Campaign Bootcamp will take you on a journey through planning and
running an effective campaign, giving you space each day to work out how what you have learnt
applies to the work that you are doing. Each day has a different theme reflecting a different part of
your campaign. By the end of the week, you will come out with a campaign strategy that you can
take forward to make change happen. To gain the skills, community and confidence you need to run
your campaign at the Campaign Bootcamp residential, apply today at www.campaignbootcamp.
org/apply.
ABOUT Bates Wells
Bates Wells is a leading law firm for charities and campaigning organisations. The firm’s specialist
politics, elections and campaigning law team helps political parties, candidates, donors, charities
and issue-based campaigners navigate the complex regulatory environment that can be relevant to
their electoral and policy goals. The multi-disciplinary team works across all areas of campaigning
law, from election and referendum law to campaign finance, transparency of lobbying, data privacy,
charity law, public law, strategic litigation, advertising and reputation-management.
Bates Wells regularly advises on the biggest political issues of our time, including Brexit, where it
advised Britain Stronger in Europe – the official Remain campaign. The firm is rated for electoral
law advice in both Chambers and Legal 500, which has referred to it as an “incomparably excellent’
team, which ‘uniquely understands the broader issues’.
For more information, please contact Simon Steeden at [email protected]. Simon is a

partner in the charity and social enterprise team at Bates Wells and co-leads its specialist political
and campaigning law team.
table of contents
FOREWORD………………………………………………………………………………………………… 8
INTRODUCTION…………………………………………………………………………………………… 9
CHARITIES AND POLITICAL ACTIVITY……………………………………………………………11
ELECTION LAW…………………………………………………………………………………………… 26
LOBBYING………………………………………………………………………………………………… 40
CASE STUDIES…………………………………………………………………………………………… 44
foreword
Many of the organisations TrustLaw supports engage in campaigning activities, community
engagement and advocacy, with the aim of highlighting and solving social problems and
encouraging systemic change.
The closing space for civil society means that campaigners are under increasing pressure to run
campaigns for social change that are not only politically effective but are also run in compliance
with the law. Campaigners do not always have the time or expertise to analyse and understand a
complex and evolving legal landscape and, as a result, may unwittingly break the law, restrict their
activities unnecessarily through defensive decision making, or be discouraged from engaging at all.
In collaboration with Bates Wells and Campaign Bootcamp, TrustLaw’s goal is to support the
development of a resilient and informed campaigning community by publishing this series of legal
guides for campaigning and advocacy organisations in the United Kingdom.
The guides offer campaigners advice and tips on how to comply with the laws that apply to their
day-to-day activities. These guides aim to arm campaigners with the legal information needed to
navigate issues including: political activities, election and lobbying laws; defamation and campaigns
that target companies; hacktivism and shareholder activism; the right to protest and laws relating to
marches, assemblies and police powers; using social media and online campaigns; data protection
and direct marketing.
We hope that these guides will ultimately empower campaigners to act with confidence and achieve
the positive outcomes they seek.
Glen Tarman
Director of TrustLaw
Thomson Reuters Foundation
9
INTRODUCTION
REUTERS/ANINDITO MUKHERJEE
INTRODUCTION
It is perhaps unhelpful to refer to ‘political activity’ as the trigger for a set of legal and regulatory
considerations. What is understood to be political activity is likely to differ between organisations
and individuals and a universal definition is difficult to come by.
Political activity may take a variety of forms for a variety of aims, but for the purpose of this section
we refer to three different scenarios in which what may be termed ‘political’ activity may give rise to
additional legal considerations:
A. charities engaging in public or private activities aimed at supporting, opposing or

securing a change in the law or policy of a government or public body here or abroad
or which may be perceived as supporting political parties; and/or
B. any individual or organisation engaging in activity in the run up to an election which

or is could reasonably be regarded as intended to promote the electoral success of a
political party or candidate, or candidates with particular views; and/or
C. any individual or organisation making personal communications with government

representatives relating to policy, legislation, certain decisions and other functions of
government, for payment and in the course of a business.
Of course, it may be possible for a charity, for example, to undertake activity falling under all of (A) –
(C) within one campaign. The different strands of political activity considered in this section should
not, therefore, be seen as mutually exclusive, and it may be necessary to consider and contend with
each strand within a single campaign.
11
charities and
political activity
REUTERS/ALESSANDRO BIANCHI
Charities and political activity

1. CAN A CHARITY HAVE A POLITICAL PURPOSE/BE SET UP TO
ACHIEVE POLITICAL AIMS?
In brief: No - a charity cannot be established for a political purpose or political aims, but it can
undertake political activity within the context of delivery/support of its charitable purposes,
provided such activity doesn’t take up so much of the charity’s time and resources that it
essentially becomes the charity’s purpose.
1.1 The law provides that a charity must exist for purposes falling within thirteen categories of
charitable purpose established by the courts and now set out in Charities Act 2011 and for
public benefit. ‘Charitable purposes’ is the legal term used to refer to the aims which a charity
is set up to achieve, e.g. to relieve poverty or to advance education. You will sometimes also see
purposes referred to as a charity’s ‘objects’ (although there is a technical distinction between
the terms as a matter of company law).
1.2 Twentieth century case law established that a charity cannot be set-up or exist for political
purposesi and subsequent interpretation and application of that body of law has led to
restrictions on campaigning and political activity by charitable bodies. The Charity Commission,
the regulator of charities in England and Wales, has produced guidance note CC9 which
reflects its view of that body of case law and its regulatory approach to campaigning and
political activity by charities. Compliance with CC9ii can therefore help a charity undertake
political activity in a manner which advances its charitable purposes within the law and
minimises the risk of regulatory intervention by the Charity Commission.
1.1 A ‘political purpose’ is defined within CC9 as ‘any purpose directed at furthering the interests
of any political party, or securing or opposing a change in the law, policy or decisions either in
this country or abroad’. So, for example, an organisation that was set up solely to repeal the
Investigatory Powers Act 2016 because it felt that the Act curtailed the freedoms of citizens
would have a political purpose, as it is set up with the purpose of changing the law. Another
example would be an organisation set up to promote the environmental policies of the Green
Party – although the advancement of environmental protection is a recognised charitable
purpose, this organisation would exist to further the interests of a political party, meaning that
it would have a clear political purpose. Neither of these organisations would be able to register
with the Charity Commission as charities.
1.2 The Charity Commission explains its approach to barring the registration of organisations with
political purposes as charities, stating that ‘in order to be a charity, an organisation must
have purposes which are charitable and for the public benefit. An organisation with a political
purpose, such as promoting a change in the law, legally cannot be a charity. This applies
even if the organisation has other purposes which are charitable. This would involve looking at ‘political’
questions, which neither the commission nor the courts are in a position to answer. Constitutionally, it is
not possible for the commission or the Courts to make decisions about whether a change in the law or
government policy would be for the public benefit’.
1.3 So, if your organisation’s purpose is directed at:
(a) furthering the interests of any political party; and/or
(b) securing or opposing a change in the law in this country or abroad; and/or
(c) securing or opposing a change in the policy or decisions of central government or other public bodies
in this country or abroad,
then it cannot register as a charity.
2. CAN A CHARITY UNDERTAKE POLITICAL ACTIVITY AND

CAMPAIGN?
In brief: Yes, a charity can undertake political activity and campaign in support of its objects/purposes,
provided that any political activity does not becomes its purpose/an end in itself.
2.1 The restriction within charity law on having a political purpose does not mean that an organisation
that carries out or wishes to carry out political activity cannot be a charity. The Charity Commission
recognises that ‘political activity, including campaigning for a change in the law, is an entirely legitimate
activity and can be an effective means of supporting a charitable purpose’ within CC9. Political activity
(within the Charity Commission’s definition of that phrase) just cannot be a purpose or aim of the charity
in itself.
2.2 CC9 divides campaigning into two types:
Non-political campaigning: This is referred to by the Charity Commission in CC9 simply as ‘campaigning’,
but it may be helpful to think of this category of activity as non-political campaigning. This would include
activity intended to raise awareness, educate or involve the public in support of a particular issue or to
influence or change public attitudes or behaviour, such as a campaign encouraging people to give up
smoking or drink less alcohol. Campaigning aimed at changes in the policies and behaviour of private
companies will also be non-political campaigning, such as campaigning for a restaurant chain to stop
stocking palm oil products. Non-political campaigning can also include calling for adherence to existing
laws (but not campaigning against the retention or proposed repeal or amendment of existing laws).
Non-political campaigning activities could therefore include a wide array of activities by charities in
support of their purposes, but charities should be conscious of when a campaign might cross into political
activity. A wildlife charity highlighting the problems caused to marine life by household products which
contain microbeads would not be political campaigning if the campaign aimed to influence the decisions
made by consumers or to encourage producers to change the design of their products, as this would
not constitute campaigning to secure or oppose changes to law or policy of government. However,
extending this campaign to a call for the government to legislate against use of microbeads would be
political campaigning/activity.
Political activity: As explained above, this is defined by the Charity Commission as activity aimed at
securing or opposing a change in the law or in the policy or decisions of government and other public
bodies (in this country and abroad). Political campaigning can only be undertaken by a charity in support
of the delivery of its charitable purposes.
Political activity is not to be confused with party political campaigning or activity, which a charity can
never undertake.
2.3 Any political activity must be in support of a charity’s purposes, but not a purpose in itself. For example,
provided a charity’s constitution did not prevent it and the charity satisfied all due diligence checks, a
charity with the purpose of relieving poverty in England could spend a period of time campaigning for
the removal of the under-occupancy charge (commonly referred to as the ‘bedroom tax’), if the charity’s
trustees reasonably believed that this would result in the relief of poverty.
2.4 For a charity to carry out political activity, it needs to demonstrate that the proposed campaign is a
reasonable and proportionate method to achieve the charity’s purposes. It is important in this analysis
that the charity’s trustees can demonstrate that:
(a) the amount of resources to be expended on the campaign are reasonable to achieve the desired
outcome;
(b) campaign materials and messaging are factually accurate and have a legitimate evidence base,
such as statistics from a reliable data source; and
(c) risks associated with the campaign are justified and managed, such as risk associated with a
particular campaign being controversial (which is permitted, when justified) and having the potential
to damage a charity’s reputation and potentially its future fundraising capability.
2.5 To ensure that the trustees of a charity comply with their duties (trustees being the people with overall
control of the management of a charity, responsible for its legal and regulatory compliance), charities
should have a clear paper trail of due diligence and analysis as to why any proposed campaign activity
is considered by the trustees to be an appropriate course of action. To this end, CC9 says that it is
“important for trustees to be able to explain their charity’s decision to engage in campaigning or political
activity, and to set objectives for the campaign which have a reasonable likelihood of success, as well as
making sure that they have monitored progress towards them during the implementation phase of the
campaign”.
2.6 According to the Charity Commission’s guidance note CC9, political activity/campaigning (as opposed
to non-political campaigning, defined above) cannot be the sole and continuing activity of a charity,
but provided the charity satisfies various due diligence obligations, it can be the sole and continuing
activity for a period of time. Charity Commission guidance does not define what constitutes a period of
time, but generally the charity should avoid pursuing a particular political activity exclusively for such a
period of time that pursuing the activity might reasonably be seen as the charity’s purpose, rather than
a means of achieving an overriding charitable purpose. This can be an unclear dividing line for charities,
but organisations should ensure that there is a process in place for monitoring the amount of time and
resource expended on political activity, so as to ensure that there is a paper trail evidencing that such
activity is only one facet of the charity’s work in pursuit of its charitable purposes.
2.7 Charities are free to devote all of their resources to non-political campaigning activity, provided that such
activity supports delivery of their charitable purposes.
3. CAN A CHARITY SUPPORT OR CAMPAIGN FOR A POLITICAL

PARTY?
In brief: No a charity can never support a political party
3.1 The Charity Commission states in its guidance (CC9) that a charity may never support or donate to a
political party.
3.2 This prohibition can cause difficulties for charities in practice, particularly because the Charity
Commission’s regulatory work has extended to instances of charities failing (in the Charity Commission’s
view) to take sufficient steps to avoid being misperceived as supporting political parties. Although
charities might argue that they should not reasonably be judged on the basis of potentially misguided
third party perception, charities can mitigate risk in this area by seeking to avoid rhetoric that suggests
support for a party rather than a policy, and by ensuring that when they engage with politicians they do
so in a manner which involves a reasonable spread of political party representatives.
4. HOW CAN A CHARITY MONITOR AND MANAGE ITS CAMPAIGNING

ACTIVITY?
4.1 A charity should have systems in place to ensure that campaign activity is appropriately authorised,
managed and reviewed. In general, the charity will need to ensure that it follows appropriate approval
processes in deciding to pursue any campaign and that (in particular) its trustees are satisfied that any
campaigning activity is in support of the charity’s objects, on the basis of a credible evidence base, and
represents a reasonable commitment of charitable resources taking account of the anticipated charitable
impact. This process should be documented.
4.2 The following approach may be helpful in formulating a general risk mitigation approach to campaign
activity by charities:
General risk management:
- Is the charity acting outside its purposes?
- Is there a sound and factually accurate evidence base for the campaign objectives and the
assertions made in the course of the campaign?
- Is there a risk to the charity’s independence, e.g. public perception if the charity’s policy coincides
with that of a political party?
- Has the charity undertaken a risk/benefit analysis?
Strategic control:
- Have the trustees approved a strategic plan for campaigning?
- Does the strategic plan for campaigning align with the charity’s objects and wider strategy?
- Do the trustees have appropriate means of approving campaigning activity, e.g. by delegated
sub-committee? It can be difficult, for example, to have trustee sign-off for reactive campaigning/
social media and the charity should have a process in place to deal with this. Social media can be
an area of particular risk and it can be advisable to have a specific social media policy to mitigate
risk in this area.
Operational control:
- Are there policies and procedures in place providing for the escalation of operational issues to
senior staff and or trustees in particular circumstances?
- Do the trustees regularly review campaign risks?
- Are there campaign evaluations and impact assessments in place?
4.3 Charity Commission guidance CC9 offers a checklist for charities to consider when formulating a new
campaign or in planning a campaigning activity, which can be a useful tool to run through prior to
finalising a proposed campaign. Retaining records showing analysis along these lines and trustee sign
off can be an invaluable tool in demonstrating compliance with charity law, should the charity later face
regulatory scrutiny from the Charity Commission.
4.4 The example responses provided below are not indicative of the level of detail required, but provide a
guide to the type of answer to be provided. The example answers are based on the fictitious scenario of a
charity set up with the purposes of relieving hardship for young carers in the UK. The charity has planned
a campaign strategy revolving around a new (fictitious) law which has been passed by parliament
requiring a certain number of volunteering hours to be undertaken by young people in order to receive
certain out-of-work benefits through government selected programmes (the ‘Working Age Act 2017’) ,
which the charity believes will adversely impact on young carers.
CC9 checklist for campaigning and political activity1
Question Response
1 What is/are the objective(s) of this E.g. to raise awareness of the impact of
campaign? the out-of-work benefits regime within
the Working Age Act 2017 on young
carers, to promote debate on the efficacy
of those provisions of the Act in terms
of the policy goal of promoting benefits
to society amongst out of work young
people within the context of young carers
and ultimately to have the Act amended
so as to include the charity’s proposed
revisions, so that young carers will be
exempted from the volunteering scheme.
2 How would this campaign or political E.g. by contributing towards a legislative/

activity further or support the purposes policy change which will relieve hardship
of the charity? for young carers and generally raise
awareness of the issues faced by young
carers in the UK today, with a view also
to generating additional fundraising
income in the region of a 5% increase on
the financial year 2015-16 to further fund
the charity’s emergency fund for young
carers, which is currently under-funded
as against predicted beneficiary need.
3 Are any of the objectives of this E.g. no, the trustees are satisfied that
campaign outside the purposes of the the objectives of the campaign support
charity? the purposes of the charity, both in (a)
securing long-term policy/legislative
change which the charity is confident,
based on a credible evidence base, will
relieve hardship for young carers, and (b)
providing additional income for direct
beneficiary support schemes.
4 Are any of the activities party political? E.g. no, the trustees have a political
impartiality policy and the campaign
complies with that policy. Measures have
been implemented to manage the risk
of party political associations with the
campaign, such as avoiding direct use of
terminology which has been employed
by some political parties in commenting
on the Act and ensuring that a wide
spectrum of political representation is
approached in any engagement with
politicians during the campaign.
5 How likely is it that the campaign would E.g. we have tested our campaign
achieve its objective(s)? materials with a small group of
supporters who have given positive
feedback. Similar campaigns have
yielded concessions from the government
in the last 6 months and the charity is
aware of informal support for similar
legislative changes to that proposed by
the charity across a cross-party spectrum
of MPs.
6 Is all campaign material factually E.g. campaign staff are satisfied that
accurate? all statistics and assertions used are
factually accurate and the campaign
materials contain links to further
information and sources supporting
statistics used.
7 What evidence is there to support the E.g. point to statistics/testing/

answers to questions 2-5 (eg beneficiary consultation
consultation, a credible evidence base)?
8(a) What other activities could the charity e.g. the charity could work on extending
undertake that would achieve the same its scheme to provide emergency
objectives? hardship funds to lessen the impact of
the Act on young carers in need.
8(b) In what ways would these other E.g. the trustees are satisfied that
activities be more or less effective than expending resources on calling for
campaigning? appropriate amendment to the
volunteering scheme within the Working
Age Act would provide a long-term
and more sustainable impact in
alleviating hardship for young carers
resulting from the implementation of
that Act in its current form, treating
the cause as opposed to merely the
effects of the policy/law. It would also
mean that should the charity’s funding
sources reduce or the charity became
unsustainable, the charity’s beneficiary
group would be protected in a more
long-term way, without dependency on
the charity’s fundraising income, which is
becoming more limited in the current UK
fundraising environment.
9(a) What would be the duration and E.g. the campaign would be rolled out
financial cost of the campaign? in three phases across three months, at
an estimated cost of £3,000 depending
on the performance of Facebook
advertising, which could produce a
variance of approximately £800 either
side of this anticipated figure.
The charity believes that the anticipated

outlay of resources on the campaign is
reasonable and proportionate taking
account of the likelihood of a materially
positive impact of the campaign and the
contribution that such an outcome would
make to advancement of the charity’s
purposes.
9(b) Would campaigning become the E.g. The charity would continue
charity’s only activity, and if so, for how to maintain its other activities –
long? the campaign would amount to
approximately 5% of total staff time for
the financial year 16-17 and 20% of the
charity’s budget for campaigning for
16-17.
10(a) Would the campaign be undertaken in E.g. no, but the charity would credit
partnership with other organisations? any other organisation’s statistics used
in campaigning and has undertaken
appropriate due diligence into the
credentials and reliabilities of such
sources.
10(b) If so, how would financial and E.g. see above

partnership arrangements be managed?
11(a) What risks would the charity be exposed E.g. The trustees have undertaken a risk
to in undertaking this campaign? assessment of this campaign strategy
• Risk of acting outside charity’s and have identified that the key risk areas
purposes/misuse of charity funds? are that the charity may be accused of
• Breach of legal/good practice engaging in party political campaigning,
requirements on campaigning? due to the centrality of the volunteering
• Costs and benefits? compulsion issue to political debate in
• Risk of failure to meet objectives? recent years.
• Financial risk?
• Reputational risk?
• Risk to independence?
• Unintended consequences?
• Other?
11(b) How could these risks be mitigated? E.g. the trustees have reminded
campaign staff of the charity’s political
impartiality guidelines and put
additional checking mechanisms in
place for reactive campaigning, such as
a key member of senior campaign staff
having final sign off on reactive social
media and social media training for
staff working on the campaign arranged
to take place ahead of the campaign
launch.
12 How would the charity monitor and E.g. the trustees have reviewed and
evaluate the effectiveness of the implemented a bi-monthly monitoring
campaign? plan for the campaign, with specific
goals to measure performance against.
For example, by week two from launch
the charity anticipates Facebook
analytics showing a X% conversion from
advert targets to our main campaign
website. We are utilising the services of
an analytics firm on a pro-bono basis to
provide us with insights on campaign
performance at the end of this crucial
first fortnight, which will be presented
to the trustees and senior campaigns
staff to monitor performance. At the
end of the campaign, we will check
progress against the outputs identified
in our campaign strategy, against the
key output in the short term of triggering
a debate on the Act in parliament and
a longer term goal of exempting young
carers from the volunteering compulsion
within the Working Age Act, to be
measured at the end of year 2.
5. CAN A CHARITY CAMPAIGN IN THE RUN UP TO AN ELECTION?

In brief: Yes, subject to compliance with additional Charity Commission guidance and election law
requirements and provided such activity is not prohibited by the charity’s governing document.
5.1 The proximity of an election (be it a general election, PPC, devolved authority election or a local election)
can make issue and policy based campaigning and advocacy higher risk for charities and subject to
additional legal considerations. This is because in the run up to an election two additional legal
frameworks may apply to charity campaigning: election law (primarily the Political Parties, Elections
and Referendums Act 2000 and the Representation of the People Act 1983) and additional Charity
Commission guidanceiii , supplementary to CC9, which applies only in the period preceding an election.
This additional Charity Commission guidance calls for particular care in maintaining and stressing a
charity’s independence from political parties and candidates in the run up to an election, which can have
an impact on the way in which charities engage with campaigning and advocacy.
5.2 The Charity Commission’s supplementary guidance applies to all charities and generally runs from the
announcement of an election to the date on which the election is held. This period is often consistent
with what is commonly referred to as ‘purdah’, or the period prior to an election in which central and local
government and other public bodies are subject to Cabinet Office guidance restricting their activities.
5.3 Election law generally applies to charities as it applies to other bodies, and is explored in part (B) of this
section (although charities may face wider regulatory and reputational implications than non-charities
in engaging in campaigning regulated by election law).
5.4 Sometimes public/governmental bodies may seek to prevent charities from releasing certain materials
or proceeding with events funded or in some way sponsored by such public bodies during the run-up to
an election, when ‘purdah’ is in effect. This is because the public body/governmental body will be subject
to controls on the use of public money to engage in matters of political controversy or election campaign
debate. Legal advice should be sought if a body seeks to restrict a charity’s activities due to purdah in the
run-up to an election.
5.5 A charity should also ensure that its governing document does not restrict it from such activity.
6. HOW CAN CHARITIES ENSURE THAT THEY USE THEIR VOICE

EFFECTIVELY IN AN ELECTION PERIOD WITHOUT BREACHING
CHARITY LAW?
6.1 During the pre-election period it is particularly important for a charity to be demonstrably independent
from political parties and to avoid seeking to influence voter behaviour, as confirmed in the Charity
Commission’s supplementary guidance.
6.2 The Charity Commission’s guidance is focused on a number of key risk areas:
i. Policies
- A charity’s policy position may be the same as, similar to or diverge from that of a political
party, and it is acceptable for a charity to continue to campaign on and highlight its position in
spite of this.
- In continuing to campaign on a policy position or issue that is particularly similar to that of a

political party (or indeed particularly dissimilar), a charity should take additional precautions
during the pre-election period to stress and maintain its party political independence and
ensure that it does not support a political party.
- An example of this risk area in operation during the 2015 General Election was that of the
Badger Trust. In the Charity Commission’s report on regulatory involvement during the pre-
election period, it states that concerns were raised regarding the charity’s promotion of a
march opposing the policy of tackling bovine TB through the culling of badgers. The march
was called ‘Stop Cameron’s Cull’, which the charity promoted in publicity materials. In response
to the Charity Commission’s contact with the charity it removed the material from its website
as a matter of urgency and the charity disassociated itself from the event with a statement on
its website that made clear that statements of the charity’s chief executive of a political nature
were made in a personal capacity and did not reflect the charity’s views – the trustees also
affirmed that the charity did not endorse any political party or its policiesiv.
- Steps should be taken to manage risk associated with any alignment/disparity between a
charity and a political party’s position being so overt that public perception of the charity’s
independence may be affected.
ii. Publicity
- A charity may promote its views on issues which relate to its objects and activities during a
pre-election period but must avoid explicitly comparing its views with those of candidates or
parties (as this may suggest endorsement or support of those parties or candidates). Charity
Commission guidance states that “the key point is that whilst charities can attempt to influence
public opinion on a particular issue if it furthers or supports their objects, they must leave it to
the electorate to make their own decisions about how to vote”. It would never be acceptable to
put a call to action in a charity’s publicity asking voters to vote for a particular party because it
shares the charity’s view on an issue.
- A charity could, however, outline the views of different candidates and parties on an issue that
is relevant to the charity’s aims/purposes, as long as it did not do anything further to suggest
direct condemnation, endorsement or a call to action to vote for certain candidates.
- A common campaigning tool for a charity is publishing a manifesto that outlines key issues
for its beneficiaries/charitable purposes. It is acceptable to do this in a pre-election period,
where the charity is trying to persuade parties to adopt the policies which it advocates, or is
trying to raise the public profile of those issues. It is not acceptable where the intention is to
influence voter behaviour and a charity must refuse any request to be mentioned by a party in
its manifesto.
iii. Parties
- Charities must not support or oppose a political party or candidate and charities cannot donate
to political parties.
- Charities can invite candidates and party representatives to public meetings about the
charity’s issues, i.e. to speak at a reception or debate, but cannot support or prejudice a party
or candidate, and must manage the risk of being perceived to do so.
- To combat this risk, the Charity Commission advises inviting and engaging with as broad a
spectrum of candidates as possible but also accepts that this may be difficult to achieve in
practice and that all parties do not have to be represented every time a charity does any work
which engages with political parties.
- Trustees should assess whether engagement with particular parties or candidates may further
or hinder the interests of the charity, for example if there would be a risk of disorder and thus
a security risk if a certain party attended a public meeting being held by the charity, or if a
party’s policy positions contravene the charity’s objects or would alienate its supporters. It
also states that a charity would have to have ‘very strong reasons’ for deciding not to invite
a mainstream political party. This is a complex area and the Charity Commission’s guidance
can conflict with guidance of the regulator of elections, the Electoral Commission, on how to
avoid a public meeting being held to be regulated expenditure for electoral law purposes. So,
wherever parties or candidates are to be excluded from a public meeting held in the run up to
an election, a charity should seek specific advice.
- A charity can engage with candidates but must be wary of becoming associated in the minds
of the public with a candidate or party – it must manage the risk that candidates may think it
is of benefit to their profile to publicly support the charity.
iv. Candidates
- Similar considerations apply to the previous section on political parties. The guidance states
that “charities are free to approach candidates in an election setting out the charity’s concerns
and asking for the candidate’s opinions on them with a view to promoting debate.”
- Charities cannot assist a candidate financially or otherwise with their election campaign. If
an officer, member of staff or volunteer for the charity wishes to do so they must undertake
this strictly in their personal capacity and steps should be taken to ensure clear separation
between that person’s personal campaigning and the charity’s position (such as ensuring
separation of social media platforms and that personal social media channels do not suggest
that the individual is speaking on behalf of the charity, e.g. by mentioning the charity in their
social media bio alongside their support of a party or candidate).
- If an employee or officer has personal involvement with a party, such as standing as a candidate,
then this should be considered at board level in terms of the risks to the charity’s party political
independence and reputation. This will be a particular risk area for senior employees or those
who are so closely associated with the charity that they are inevitably seen as speaking for it
and even as an extension of its brand.
v. Facilities
- Some charities such as schools may be required under electoral legislation to provide their
facilities to candidates to hold public meetings free of charge. In any other circumstances, a
charity should only allow a candidate/party to use its facilities where it is treated as a normal
commercial hire and that rate is applied equally to bookings by all candidates (as a lower
rate for one candidate may suggest that this is preferential treatment, constituting improper
support).
- However, the Charity Commission guidance states that “it is open to a charity to refuse to hire
facilities to a candidate, party or other group if the charity trustees have good reason to believe
that to hire the facilities would alienate the charity’s beneficiaries, users or supporters, or are
advised by the police that to do so would create a risk of public disorder.”
7. HOW CAN A CHARITY MITIGATE THE RISKS OF BREACHING

CHARITY LAW OR BEING SUBJECT TO REGULATORY ACTION BY
THE CHARITY COMMISSION IN A PRE-ELECTION PERIOD?
7.1 Taking heed of the Charity Commission’s guidance and adhering to the principles set out above will assist
charities in ensuring they do not fall foul of charity law. Considering the tone, imagery and potential
public perception of campaigning material and activities will assist organisations in safeguarding their
political independence in a pre-election period.
7.2 A charity should involve its board of trustees in assessing the risks associated with a charity’s planned
activities during an election period and records should be kept of decisions made and the reasons behind
those, such as, for example, the link between the campaigning activity and the charity’s purposes. Ideally,
a risk assessment will be undertaken and documented, for which purpose the charity might take account
of the Charity Commission’s guidance on risk management, CC26v. Existing controls should be adhered
to and the trustees should consider increasing those controls, particularly around high risk areas such as
social media, in the pre-election period.
7.3 Trustees should ensure that they adhere to their duties, as set out in the Commission’s guidance CC3 ‘the
essential trustee’vi and CC27 ‘it’s your decision’vii, and understand their role in decision making for the
charity. In deciding whether and how to campaign in the pre-election period, trustees must:
(i) act within their powers;
(ii) act in good faith;
(iii) make sure they are sufficiently informed;
(iv) take account of all relevant factors and ignore irrelevant factors;
(v) make sure their decision is within the range of decisions that a reasonable trustee body could
make; and
(vi) deal appropriately with any conflicts of interest
7.4 The Charity Commission has released a report on regulatory issues that arose during the 2017 General
Electionviii, confirming that although most of the cases it dealt with related to charities with an income of
more than £1 million per year the profile of charities dealt with was wide-ranging.
7.5 The report states that “during [the election period] we dealt with 41 cases relating to campaigning and
political activity around the General Election. Of these, 28 resulted from us either proactively identifying
concerns about apparent non-compliance by charities through external sources such as mainstream
media and social media, or responding to concerns raised with us. A further 13 resulted from charities
contacting us to seek advice about regulation in this area”.
7.6 Considering the fact that there are more than 160,000 registered charities in England and Walesix,
these figures do not represent a substantial amount of regulatory action, but it is clear that the Charity
Commission does actively regulate political activity in the run-up to elections.
8. THE LOCAL GOVERNMENT ACT 1986

8.1 The Local Government Act 1986 (LGA) and what is commonly referred to as ‘purdah’ (the convention
regulating civil servants and governmental department’s actions and conduct in the period prior to an
election) is outside of the scope of this guidance, but it should be noted that the Charity Commission’s
guidance on the pre-election period does make reference to the LGA.
8.2 Broadly, the LGA prohibits local authorities and some other associated public bodies from giving publicity
to a political party or publishing material that appears to be designed to influence public support for or
against a political party. Authorities that are subject to this restriction must ensure that they do not give
assistance to an organisation to carry out activity which it would itself be prohibited from undertaking
under that provision. This can have a consequential effect on charities that receive funding or assistance
from such an authority (for example, in holding or organising a joint event or initiative) should the charity
engage in activity which may meet this objective test.
26
election law
REUTERS/UMIT BEKTAS
election law
1. HOW DOES ELECTION LAW APPLY TO INDIVIDUALS
AND ORGANISATIONS THAT ARE NOT CANDIDATES OR
POLITICAL PARTIES?
1.1 Individuals and organisations that are not political parties or candidates for elected office
are referred to as ‘non-party campaigners’.
1.2 Election law applies to non-party campaigners, if they incur expenditure over a prescribed
level engaging in regulated activity in a set time period of time ahead of an election (known
as the ‘regulated period’).
1.3 What will constitute regulated activity and the length of the regulated period depends on
the type of campaign and the election to which the activity relates.
1.4 There are two primary pieces of electoral legislation in effect in England and Wales (and
Scotland, Northern Ireland and Gibraltar (for some types of elections) with modifications).
Those are the Political Parties, Elections and Referendums Act (PPERA) and the
Representation of the People Act 1983 (RPA).
1.5 The RPA applies to what is often referred to as ‘local’ campaigning, which is campaigning
for or against particular candidates in an electoral ward/area (i.e. in a local constituency)
and effectively imposes a variable limit on third-party campaigning which is intended to
promote or prejudice the electoral success of local candidates during the period between
which a candidate officially becomes a candidate and the date of the relevant electionx.
1.6 There is no regulator responsible for regulating the rules in the RPA, and complaints for
breaches must be referred to the police for investigation. In practice, it is likely that the
Electoral Commission will take an interest in RPA compliance and may refer investigatory
issues that it identifies on to the police.
1.7 PPERA applies to elections to the UK Parliament (i.e. general elections), European
Parliament, Scottish Parliament, National Assembly for Wales and the Northern Ireland
Assembly. Regulated activity at local elections such as PCC elections or local authority
elections can also count towards the regulated spend limits under PPERA if the elections
fall within the regulated period for an election for one of these region-wide elections.
1.8 PPERA regulates ‘general’ campaigning, which, according to Electoral Commission guidance,
means “non-party campaigns for or against a political party, or particular categories of
candidate, including campaigns on policies or issues closely associated with a particular
party or category of candidates (for example, candidates in a certain age group).” In practice
the boundary between local and general campaigning may be unclear and may overlap - in
these circumstances it will be important to seek further advice so as to ensure you are complying with
the correct framework and that you are applying the correct spending limit to your activities.
1.9 The Electoral Commission regulates general campaigns under PPERA and offers a suite of guidance,
available at this link https://www.electoralcommission.org.uk/i-am-a/party-or-campaigner/non-
party-campaigners. New guidance is issued for each specific election, as opposed to the more generic
regulatory guidance offered by the Charity Commission which typically remains in place for many
years.
2. WHEN WILL INDIVIDUALS/ORGANISATIONS NEED TO ENGAGE

WITH ELECTION LAW?
2.1 Broadly, an organisation will need to be mindful of election law and potentially ensure compliance
with the regulatory regime and restrictions it imposes if, in the run-up to an election, it engages in
or spends money on certain activities/materials which “can reasonably be regarded as intended to
promote or procure electoral success at any relevant election” of any party, parties or candidates,
including parties or candidates which advocate (or oppose) particular policies (often called the
“purpose test”).
2.2 The test for local campaigning under the RPA is slightly different, and looks at the intention of the
campaigner in undertaking an activity or producing materials, as to whether or not it can be seen to be
intending to promote or prejudice electoral success for a candidate in a certain local election area (i.e.
at a local constituency level or local council elections). This is a narrower test and is less likely to catch
issue-based campaign groups or charities as they will be campaigning on policy issues, rather than
for or against specific individual candidates (and charities will be prohibited from directly supporting
candidates or parties under charity law).
2.3 As such, this section focusses predominantly on the general campaign rules under PPERA, but
an overview of the local rules is provided at the end of this section for reference. Organisations or
individuals should seek further advice if there is a risk that they may be engaging in regulated local
campaigning.
3. WHAT ARE THE GENERAL CAMPAIGN RULES?

3.1 In the period of 365 days prior to a general election (known as the ‘regulated period’) and a variable
period of time (generally four months) ahead of devolved elections and referendumsxi, the costs
attributable to certain activities and campaign materials are subject to controls under UK electoral
law. Broadly, for elections (referendums being outside of the scope of this guidance) this includes
expenditure on certain activities/materials which can ‘reasonably be regarded as intended’ to promote
(or prejudice) electoral success for parties, or candidates that hold or do not hold particular opinions or
who advocate or do not advocate certain policiesxii (or can otherwise in some way be grouped together,
i.e. a campaign supporting the election of female candidates generally).
3.2 PPERA’s election rules apply to activity undertaken by most organisations, such as trade unions, think
tanks and a range of commercial vehicles as well as charities. If such entities intend to spend more
than £20,000 in England or £10,000 in any of Wales, Scotland or Northern Ireland on “controlled
expenditure” during the regulated period before a general election then they will be required to
register with the Electoral Commission as a non-party campaigner xiii. Only eligible organisations and
individuals are able to register with the Electoral Commission, including (for the purposes of a UK-wide
general election):
3.2.1 Individuals registered on UK electoral registers;
3.2.2 UK Charitable Incorporated Organisations (CIOs);
3.2.3 UK registered companies which are incorporated in the EU2 and carry on a business in the UK (including
charitable companies);
3.2.4 Royal Charter bodies;
3.2.5 UK registered political parties; and
3.2.6 Unincorporated associations that are UK based and carry on their business or other activities in the
UK;
3.3 Once registered, entities become subject to a range of reporting requirements and controls regulating
donations made to the entity for the purpose of meeting its controlled expenditure. Registered
non-party campaigners do also then generally have access to a much higher spending limit, which
varies depending on the part of the United Kingdom to which the entity’s controlled expenditure
can be attributed and again depending on the election to which the campaign relates. In that sense,
registering with the Electoral Commission can give an entity significantly greater freedom to campaign
in areas of political controversy (subject to charity law for charities).
3.4 As will be explored below, a charity or campaign group may incur controlled expenditure even where
it does not intend to support any political party, parties or candidates (and for charities this should
always be the case as this would be a breach of charity law and Charity Commission guidance).
3.5 It is important to recognise that whilst charity law prohibits certain campaigning conduct (i.e. party
political conduct), the Electoral Commission, in enforcing PPERA, is concerned only with whether
funds need to be accounted for and reported. PPERA does not prevent campaigning activities being
undertaken, subject to compliance with the spending limits and the other controls it contains. This
is something that is often overlooked by campaigners and charities - the Electoral Commission, as a
regulatory body, is not concerned with preventing certain campaigning techniques or materials being
undertaken or produced – it is concerned primarily with ensuring transparency as afforded by accurate
reporting of expenses incurred in excess of a prescribed threshold which meet the purpose test under
PPERA and also ensuring that other controls on (and the reporting of) donations are complied with.
4. WHAT IS “CONTROLLED EXPENDITURE?”

4.1 “Controlled expenditure” for the purposes of PPERA includes all expenditure on “qualifying expenses”
which “can reasonably be regarded as intended to promote or procure electoral success at any relevant
election” for:
4.1.1 one or more particular political parties;
4.1.2 one or more political parties who advocate (or do not advocate) particular policies, or who otherwise
fall within a particular category of parties; or
4.1.3 candidates who hold (or do not hold) particular opinions or who advocate (or do not advocate) particular
policies, or who otherwise fall within a particular category of candidates
4.2 This test is referred to in Electoral Commission guidance as the “purpose test”.
4.3 It should be noted that the purpose test will be satisfied if expenditure is incurred which can reasonably
be regarded as intended to prejudice the prospects of any party/parties or candidates. It is also not
necessary expressly to name a party or candidate in order to satisfy the purpose test if, for example,
wording or imagery is used which is associated with particular parties or candidates.
4.4 This is an objective test, so even if an organisation does not intend for its campaign activity to promote
or procure electoral success of parties/candidates, it may still be reasonably regarded, on an objective
extrinsic basis, as intended to do so.
5. HOW CAN AN ORGANISATION ASSESS WHETHER SOMETHING

MEETS THE PURPOSE TEST/IS CONTROLLED EXPENDITURE?
5.1 The Electoral Commission offers guidance (which it updates for each election) in this area, and states
that campaigners should consider the following factors to assess whether a campaign material/
activity meets the purpose test:
Tone: For example, is the tone of your campaign negative or
positive towards a political party or parties, or category of
candidate, or a policy that a party or category of candidate
supports or does not support?
Context and timing: For example, are you campaigning on
an issue that is prominent in public debate? Are you
campaigning on an issue that clearly represents an area of
difference between political parties? Are you campaigning as a
reaction to a policy or position of a political party? Are you
campaigning close to the date of an election (campaigning very
close to an election may make it more likely that you will pass
the purpose test)?

Call to action: For example, is your campaign asking people
(whether explicitly or implicitly) to vote for a particular political
party, parties or category of candidate at an upcoming
election?
How a reasonable person would see your activity: Would a
reasonable person regard your campaign as intended to
influence people’s voting choices?
These factors should be considered as a whole rather than
individually. If, on balance, the answer to these questions is
yes, it is more likely that your campaigning activity will meet the
purpose test3.
6. WHAT ARE “QUALIFYING EXPENSES”?

6.1 For controlled expenditure to be incurred, expenditure which satisfies the purpose test must also fall
within one of the following categories of “qualifying expenses”xv :
6.1.1 production or publication of material which is made available to the public, or any section of the public
(in any form and by any means);
6.1.2 canvassing, market research, seeking views from members of the public;
6.1.3 press conferences or other media events;
6.1.4 transport of persons by any means to any place(s) with a view to obtaining publicity;
6.1.5 public rallies or other public events other than AGMs and certain public processions/protests in
Northern Ireland; and
6.1.6 expenses in respect of such events including premises hire, provision of goods, services or facilities.
6.1.7 Staff time: it is important to note that associated staff time costs will also be a qualifying expense
(although outside the scope of this guidance, note that for referendums staff time is generally
excepted from being counted as a qualifying expense). In many circumstances, staff time may be the
only significant controlled expenditure attributable to a campaigning activity (for example, the staff
time cost of writing copy for a non-paid promoted social media post).
6.2 There are some limited exceptions to classification as qualifying expenses, including security costs,
annual conferences, publications in newspapers and periodicals (other than advertisements), BBC
broadcasts and other licensed radio and television broadcasts (as distinct from on demand videos),
translations from Welsh to English, reasonable non-reimbursed personal travel expenses, reasonable
expenses attributable to disability; and, importantly, volunteer time is not a qualifying expense and
will not count as controlled expenditurexvi.
6.3 This can helpfully be referred to as the ‘activity test’. So an activity/publication that meets the activity
test and the purpose test will be qualifying expenditure (and regulated) - generally activities will only
be regulated if they are public facing or intended to support public facing activity. This is sometimes
referred to as the ‘public test’.
6.4 So, if a publication, event or campaign material meets the purpose test + activity test + public test,
then the costs attributable to such activity/material will count towards the non-party campaigner’s
spending limit (which will depend on the election and whether the campaigner is a registered non-
party campaigner or not).
7. HOW MUCH CAN A NON-PARTY CAMPAIGNER SPEND ON

CONTROLLED EXPENDITURE?
7.1 Where an organisation registers as a non-party campaigner with the Electoral Commission, limits
apply to the amount of controlled expenditure it can incur. For general elections, these limits are
calculated on the basis of a fixed amount of £20,000 plus a variable amount based on the number of
seats in a region of the UK. For the purposes of the 2017 snap election, those limits were:
7.1.1 £319,800 in England
7.1.2 £55,400 in Scotland
7.1.3 £44,000 in Wales
7.1.4 £46,100 in Northern Ireland (this amount was greater than it would usually be as the spending limit for
the elections to the Northern Ireland Assembly was added to the spending limit for the snap election,
as the regulated periods coincided).
7.2 The Electoral Commission confirmed on 4 November that the spending limits for the 12 December
2019 general election will be:
7.2.1 £479,550 in England
7.2.2 £73,400 in Scotland
7.2.3 £55,259 in Wales
7.2.4 £37,550 in Northern Ireland
7.3 The reason for the increase in spending limits (as compared to the 2017 snap election) relates to
the regulated period for this election – which runs for the 12 months preceding the election date of
12 December. Within this period there has also been a European Parliamentary election which had
its own regulated period and spending limits. PPERA provides that the overall spending limit for
the regulated period for the general election is combined amounts for a general election and for a
European Parliamentary election, as set out in PPERA. In practice, this avoids any disadvantage to
campaigners, who may already have incurred regulated expenditure campaigning in the European
Parliamentary elections, and may therefore have had a lower spending limit available to them in the
general election in the absence of the aggregation of the spending limits in this manner.
7.4 The limits for other types of elections are set out within PPERA and will be confirmed by the Electoral
Commission in its guidance before any given election, available at https://www.electoralcommission.
org.uk/i-am-a/party-or-campaigner.
7.5 Due to what are known as ‘attribution’ rules, controlled expenditure on a UK-wide campaign must be
apportioned between the total number of seats across the whole of the UK (650) up to a total UK-
wide spending limit of £584,817 for the 2019 general election. If you undertake a general UK-wide
campaign, your total spending limit as a registered non-party campaigner will therefore be £584,817.
For the 2017 snap election, this figure was £390,000.
8. DID THE 2017 SNAP-ELECTION CHANGE THE RULES SETTING THE

LENGTHS OF REGULATED PERIODS?
8.1 The regulated period of 365 days prior to a general election is fixed in statute. Electoral Commission
guidance prior to the 2017 snap election confirmed that was treating the regulated period as having
begun “on 9 June 2016 and ending on polling day, 8 June 2017”, so a 365 day regulated period. This is
in spite of the fact that the snap election was not announced until April 2017.
8.2 The Electoral Commission has stated in guidance that it is unlikely to consider enforcement action
against non-party campaigners that took prompt steps to register with them, even if their controlled
expenditure is already in excess of the registration threshold (due to the retroactivity of the regulated
period).
8.3 However, it is BWB’s view that in many cases, it may be appropriate to take the view that spending
prior to the announcement of the election could not reasonably have been regarded as intended to
influence an election that was not expected to be held until 2020.
8.4 There may be some cases where it is appropriate to retroactively count campaign spending as controlled
expenditure if a general election is announced at short notice. For example, if an organisation has
been overtly campaigning throughout the last year to unseat a political party (for example, with a view
to affecting the May local elections) or to directly prejudice a political party, then that activity is likely
to pass the purpose test even though it was incurred prior to a snap general election being announced.
9. WHAT HAPPENS IF AN ORGANISATION WORKS WITH OTHER

ORGANISATIONS ON REGULATED CAMPAIGNING ACTIVITIES?
9.1 Where an organisation works in coalition with others, all controlled expenditure of the coalition will
be attributed to all coalition members, meaning each coalition member individually may be under
the spending limits for registration, and yet all coalition members could nonetheless be required
to register with the Electoral Commission. The language used in the legislation is whether you and
one or more other campaigners are incurring controlled expenditure ‘in pursuance of a plan or other
arrangement’.
9.2 For general elections, there is provision in PPERA for a ‘lead campaigner’ to register with the
Commission and take responsibility for reporting the controlled expenditure of specified ‘minor
campaigners’ within a coalition. However, it is not clear to what extent the lead campaigner can rely
in good faith upon the information provided to it by any minor campaigners (by way of defence in any
enforcement proceedings), meaning this continues to be an area in which particular care should be
taken. It is also likely to be a significant administrative burden for the lead campaigner as it would be
responsible for the reporting of any controlled expenditure by the other minor campaigners (with such
controlled expenditure counting towards its own spending limits under electoral law) and for ensuring
receipts are provided for spending over £200 and compliance with any other reporting requirements.
9.3 Whilst in a lead/minor campaigning arrangement only the lead campaigners need to register and
report to the Electoral Commission in respect of the joint campaign, it should be noted that any minor/
unregistered campaigners that exceed the registration threshold in their own separate campaign
activity on controlled expenditure would need to register with the Electoral Commission.
9.4 It is each organisation’s responsibility to register where necessary and to accurately report each other’s
spending, as required. This can be difficult in practice and it may be helpful to have an agreement in
place for any joint-campaigning setting out clearly a reporting framework between the organisations
and each organisation’s responsibilities.
9.5 It is unclear from the legislation precisely when co-operation between two or more campaigners will
be sufficient to constitute joint working. The Electoral Commission’s guidance4 states that the guiding
principle is that campaigners should make “an honest and reasonable assessment, based on the facts,
whether you and another non-party campaigner are spending money as part of a common plan or
arrangement”. However, this assessment is not always straightforward and the Electoral Commission
has said itself in relation to similar rules governing the 2016 EU Referendum campaign that “to reduce
complexity and allow the Commission to provide clearer advice and guidance to campaigners, the
Government and Parliament should clarify what constitutes joint spending”.
9.6 The Electoral Commission’s guidance offers some principles as to when the Commission will and will
not consider organisations to be working jointly and states that you are unlikely to be engaging in joint
working if:
9.6.1 you have informal discussions with other campaigners that doesn’t involve decision making or co-
ordination;
9.6.2 you speak at an event organised by another campaigner but do not participate in any other way;
9.6.3 you do not consult with other campaigners about what you should say in your campaign or how you
should organise it; or
9.6.4 you establish a new organisation to run the campaign – but this is a controversial area and requires
further thought/specific advice.
9.7 The guidance states that you may be joint working if:
9.7.1 you have joint advertising campaigns, leaflets or events;

9.7.2 you coordinate your regulated campaign activity with another campaigner (i.e. apportioning areas or
issues); or
9.7.3 another campaigner can approve or has significant influence over your leaflets, websites or other
campaign activity.
9.8 The Electoral Commission’s 2017 guidance on joint working for general elections is available here:
https://www.electoralcommission.org.uk/__data/assets/pdf_file/0006/225195/UKPGE-2017-Joint-
campaigning.pdf
10. IF A CHARITY CANNOT SUPPORT A POLITICAL PARTY, WHY IS

IT ALLOWED TO INCUR “CONTROLLED EXPENDITURE” UNDER
PPERA?
10.1 The answer lies in the wide, objective test of “controlled expenditure” under PPERA, as opposed to the
subjective test in the RPA which focuses on an organisation’s actual intention in carrying out regulated
activity. Controlled expenditure may satisfy the purpose test even if it is also intended to achieve another
purpose (or if this intent is reasonably inferred). For example, expenditure on materials promoting
policies or issues closely associated with a political party may constitute controlled expenditure as
they could objectively be regarded as intended to support a category of candidates/parties that do or
do not hold certain policy views, so satisfying the purpose test. Under PPERA, it is not necessary to
expressly name a party or candidate.
10.2 So, expenditure by a charity on the production or publication of materials or on public events may
be intended to advance the interests of its beneficiaries, by raising public awareness of issues in
connection with the election. However, if a reasonable person might infer that the charity was
also intending to promote the success of candidates with consistent policy positions or prejudice a
candidate by highlighting the disparity between the charity’s position and that of the party, then this
could constitute controlled expenditure. The risk of such an inference being drawn is likely to be greater
where the policy position of the charity coincides with that of one of the political parties on a polarised
issue of political controversy and is a key dividing line in the discourse around the general election.
11. ARE THERE ANY METHODS TO MITIGATE THE RISK OF ACTIVITY

COUNTING AS CONTROLLED EXPENDITURE?
11.1 Working to a plan put in place before party policies are announced could help demonstrate that an
organisation should not reasonably be regarded as intending to promote the electoral success of a
party which later adopts the same policy position. Electoral Commission guidance states that where
an organisation’s campaign activity would not have been regulated previously, it “is unlikely to become
regulated campaign activity simply because a party has changed its position”, unless the organisation
then publicises the party’s support for its position or alters or increases its campaigning on a policy
as a result of the party’s support. However, this should not be seen as an absolute rule; where a
policy becomes highly controversial and heavily associated with a particular party in the run-up to an
election, it may be difficult in some circumstances to argue that campaigning against the policy cannot
reasonably be regarded as intended (in part) to influence that party’s electoral prospects.
11.2 In some cases, expenditure which passes the “purpose test” will not be regulated if it is not directed
towards the public or a section of the public (referred to in Electoral Commission guidance as the
“public test”). The Electoral Commission guidance suggests that this will be the case where activities
are only directed at an organisation’s “members” or “committed supporters”, including regular donors
by direct debit, people with an annual subscription and people “actively involved” in the organisation.
However, people who are on the organisation’s mailing lists or have signed up to social network sites
will not be considered “actively involved” on that basis alone.
11.3 The use of volunteer time is unregulated, including time spent by staff that the charity does not pay
them for. However, the position may be more complicated where staff undertake unpaid work out of
hours, and any expenses paid to volunteers engaging in regulated activity (or resources provided to
them to carry out that activity) will count as controlled expenditure.
11.4 Expenditure on publications in newspapers and periodicals (other than advertisements) will not be
regulated. Nor will expenditure in respect of BBC and other licensed television broadcasts (as opposed
to on demand TV). This means that charity staff costs associated with interviews in print media or on
BBC news programmes should not be caught.
11.5 The Electoral Commission’s guidance also states that expenditure on the production and distribution
of a press release only to the media (such as welcoming a party’s policy pledge) will not ‘generally’ be
regulated; and nor will comments or statements made in response to queries from the media. However,
media events are regulated, and any press releases posted on a website or otherwise circulated more
widely are, in our view, likely to be regulated.
11.6 The Electoral Commission takes the view that website content will only satisfy the “public test” and so
result in controlled expenditure if it is actively advertised or promoted, such as by linking to it via other
websites or communications, attempting to rank it higher in search engine result lists (e.g. Google), or
advertising it on Twitter, Facebook or other organised viral marketing.
11.7 Expenditure on an organisation’s annual conference will also not be regulated.
11.8 The Electoral Commission’s factsheets from 2017 for common campaigning techniques and its view of
regulated activity can be accessed below:
Regulated non-party campaigning:

https://www.electoralcommission.org.uk/_ _data/assets/pdf_file/0009/224955/UKPGE-2017-
Overview-of-non-party-regulated-campaign-activity.pdf
Campaigns later adopted by parties or candidates at elections:

http://www.electoralcommission.org.uk/__data/assets/pdf_file/0009/169488/fs-party-support-npc-
ukpge.pdf
Manifestos
http://www.electoralcommission.org.uk/__data/assets/pdf_file/0011/169490/fs-manifestos-npc-
ukpge.pdf
Pledge cards
http://www.electoralcommission.org.uk/__data/assets/pdf_file/0016/170026/factsheet-common-
campaigning-techniques-pledge-card.pdf
Social media
http://www.electoralcommission.org.uk/__data/assets/pdf_file/0010/175078/fs-soc-media-npc-
ukpge.pdf
12. WHAT ARE THE IMPLICATIONS OF BEING REGISTERED AS A

NON-PARTY CAMPAIGNER UNDER PPERA?
12.1 Registering with the Electoral Commission results in potentially onerous additional compliance
requirements, but can allow charities and other campaigning organisations greater freedom to
campaign in the run up to an election. The additional requirements include that registered non-party
campaigners:
12.1.1 Are subject to the spending limits on campaigning described above and must retain and provide
receipts for controlled expenditure over £200.
12.1.2 Are subject to rules regarding the timing of receipt and payment of invoices for controlled expenditure.
12.1.3 Can only accept donations of £500 or more to be used for controlled expenditure if they are from
an identifiable UK based source which they have to check prior to accepting the donation (a list of
permissible donors is set out at appendix 1) – this can have an effect on UK organisations which
incur or wish to incur controlled expenditure but receive all of their funding from an associated
overseas branch/organisation. Note that a donation under electoral law includes property or services
given without charge or on non-commercial terms, as well as direct cash donations. The Electoral
Commission’s donations guidance is available here, for 2017: https://www.electoralcommission.org.
uk/__data/assets/pdf_file/0010/224965/UKPGE-2017-Donations-to-non-party-campaigners.pdf
12.1.4 Must report on donations over £7,500 (as a single sum or in aggregate from one source) in the run up
to the election and donations over £500 after the election.
12.1.5 Must submit a report on controlled expenditure after the election.
12.1.6 Must present an auditor’s report if the controlled expenditure exceeds £250,000.
12.2 Some charities or campaigning groups may be concerned that registering with the Electoral
Commission might attract unwarranted criticism for acting in a partisan way. However, registration
does not in itself imply that an organisation is politically partisan due to the breadth of the purpose
test.
13. ARE THERE ANY IMPLICATIONS UNDER THE COMPANIES ACT

2006 OF ENGAGING IN POLITICAL CAMPAIGNING?
13.1 In the case of charitable companies and campaign groups that are registered companies, political
expenditure and political donations may require a general authorisation by way of a resolution from
its members under Part 14 of the Companies Act 2006.
13.2 The Companies Act 2006 regulates political donations and “political expenditure” by companies. Part
14 of the 2006 Act (ss. 367 – 379) requires a company which (a) makes a donation to a political party or
a “political organisation” or (b) incurs political expenditure, to obtain a general authorisation by way of
a resolution from its members or from the members of its ultimate holding company. This is intended
to ensure that the political activities of companies have broad-based democratic support amongst
members/shareholders and are not simply directed by board level decisions.
13.3 In summary, a political organisation is an organisation that carries out or proposes to carry out activity
that is “capable of being reasonably regarded as intended” to affect public support for a political party
or candidate.
13.4 The Companies Act links the definition of a political donation to the definition of regulated donations
under PPERA, which means that Companies Act authorisation would be required if a company wanted
to make a donation or series of donations to another campaigner which itself met the definition of a
political organisation, with a cumulative value over £5,000 in any twelve-month period.
13.5 Political expenditure means expenditure incurred on material or activity of any kind that is “capable
of being reasonably regarded as intended to affect public support for a political party or other political
organisation”.
13.6 The Companies Act makes directors personally liable for incurring such expenditure which has not
been appropriately authorised, but the risk of enforcement may be low as it will typically be the
members of a company that need to enforce this, absent extreme circumstances such as an insolvency
situation (and members can also ratify the omission of such authorisation).
14. ARE THERE ANY OTHER CONSIDERATIONS FOR

ORGANISATIONS/INDIVIDUALS ENGAGING IN CAMPAIGNING?
14.1 Under PPERA, outside of the non-party campaigning rules but relevant to non-party campaigners, is
a provision that regulates printed election material.
14.2 The definition of election material is very similar to that of controlled expenditure and includes an
objective purpose test. Essentially, if you publish or cause to be published material that can reasonably
be regarded as intended to influence voters to vote for or against a political party or category of
candidates including those that support or oppose particular policies, and that material is aimed at
the public, then there are rules requiring text to be added to the document for transparency purposes.
14.3 These ‘imprint’ rules currently only apply to printed material, so may not be a relevant consideration
for organisations if they are not going to be working with printed materials and will predominantly
be engaging in online campaigning. The Electoral Commission’s guidance on imprints from 2017 is
available here: https://www.electoralcommission.org.uk/__data/assets/pdf_file/0004/166225/fs-
imprints-npc.pdf
14.4 Note that it is an offence to not include a compliant imprint on election material, and the Electoral
Commission have previously issued heavy fines for this easily-overlooked requirement being omitted.
15. WHAT ARE THE LOCAL CAMPAIGNING RULES?

15.1 The RPA regulates spending on similar categories of activity to that under PPERA, incurred “with a
view to promoting or procuring the election of a candidate at an election” which includes persuading
voters not to vote for a candidate.
15.2 The RPA thus regulates campaigning for or against a specific candidate or candidates on a constituency
level. The RPA is not regulated by the Electoral Commission and there is no formal regulator of its rules
– complaints are made to the police and the CPS will enforce breaches. The Electoral Commission, in its
guidance, makes a distinction between ‘general’ campaigning, which it regulates, and ‘local’ campaigning,
which it does not (and is governed by the RPA). However, in practice the Electoral Commission is likely to
be familiar with the RPA’s regime and have some interest in advocating its enforcement.
15.3 The local campaign rules will also apply to campaigning ahead of mayoral elections, local council
elections, PPC elections and the Greater London Authority elections.
15.4 The regulated period under the RPA stretches from the date on which the candidate becomes a candidate
to the date of the election. In practice, the regulated period under the RPA will generally be from dissolution
of parliament – for the snap 2017 general election it applied from 3 May 2017 to 8 June 2017.
15.5 The spending limit on regulated campaign spending without candidate authorisation under this
regime depends on the election typexix. For local campaigning at a general election, the limit is just
£700 per candidate and similar rules regarding spending and donations under PPERA apply. A greater
spending limit can be accessed for campaign spending that is authorised by (effectively incurred on
behalf of) a candidate, which again depends on the election and would effectively come out of the
candidate’s own election expense limit (which for the General Election for a county constituency was
£8,700 plus 9p per person on the electoral roll for that area)xx .
15.6 Importantly for charities, due to the fact that the test under the RPA is subjective, i.e. whether or not
an organisation incurs expenditure with the actual intention of (or “with a view to” using the language
of the legislation) promoting or procuring the election of a candidate, it should not be possible for a
charity to incur controlled expenditure without breaching its charity law obligations not to support
or donate to a political party or candidate. However, charities should still be aware of the additional
risk of complaints regarding local level/candidate campaigning during the RPA’s regulated period,
particularly where a charity may hold a hustings-style event which does not include all candidates
standing in the area – in practice, this type of activity may prompt complaints of breaches under the
RPA from candidates who have been excluded.
15.7 It is often difficult in practice to work out when a particular campaign that has a local impact or notes
local candidates is governed by the RPA and local campaign rules as opposed to the general campaign
rules/PPERA (or even both). There is little guidance in this area and the distinction has not been tested
by the courts.
40
lobbying
REUTERS/ HENRY NICHOLLS

lobbying
INTRODUCTION
Lobbying within this guidance refers to the activity regulated by part 1 of the Transparency of
Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 (“the Lobbying Act”).
Part 1 of the Lobbying Act imposes requirements to register with the ‘Registrar of Consultant
Lobbyists’ where an organisation or individual, in the course of a business and in return for payment,
makes communications on behalf of another person to government ministers or senior civil servants
(permanent secretaries or equivalents). An obvious example of lobbying falling within the regulation
of Part 1 of the Lobbying Act would be a company paying an external consultant specialising in
government liaison to lobby the Secretary of State to stand against corporation tax rises.
1. WHAT DOES THE LOBBYING ACT DO?

The Lobbying Act created a statutory register of lobbyists, called the Register of Consultant Lobbyists
(the ‘Register’). It prohibits what it terms ‘consultant lobbying’ without being registered on the
Register xxi. Registration attracts a fee and gives rise to reporting requirements, such as provision
of quarterly information detailing the names of clients on whose behalf consultant lobbying was
undertakenxxii.
The Act makes it an offence to carry on the business of consultant lobbying without being registered
or providing materially inaccurate registration or return detailsxxiii.
2. WHAT IS CONSULTANT LOBBYING?

2.1 The Lobbying Act states that a person will be carrying on the business of consultant lobbying
if:
(a) in the course of a business and in return for payment
(b) the person makes oral or written communications personally
(c) to a Minister of the Crown or permanent secretary (referred to in the Registrar’s

guidance as ‘government representatives’, defined below)
(d) on behalf of another person(s)
(e) relating to:
(i) the development, adoption or modification of any proposal of the government

to make or amend primary of subordinate legislation
(ii) the development, adoption or modification of any other policy of the

government
(iii) the making, giving or issuing by the government of, or the taking of any other steps by the
government in relation to any contract or other agreement, any grant or other financial
assistance or any licence or other authorisation; or
(iv) the exercise of any other function of the government.
2.2 This will be consultant lobbying under the Act provided that the person/business making the
communications is registered for VAT and none of the statutory exceptions apply.xxiv
2.3 The registrar has issued guidance, available here: http://registrarofconsultantlobbyists.org.

uk/guidance/requirements-to-register/introduction/
3. WHAT ARE ‘GOVERNMENT REPRESENTATIVES’?

3.1 The Registrar’s guidance states that “government Representatives are Ministers of the Crown,
Permanent Secretaries (and any equivalents as specified by the Act) of Her Majesty’s Government,
in post at the time when an act of consultant lobbying is carried out. Any communications made to
Government Representatives prior to accepting this post, or made after they have left their post, will
not trigger the need for registration”. Equivalent positions are listed on the Registrar’s website: http://
registrarofconsultantlobbyists.org.uk/guidance/requirements-to-register/requirements-to-register/
4. WHAT ARE THE STATUTORY EXCEPTIONS?

4.1 The key exceptions for many organisations/individuals are as follows:
4.2 There is an exception for persons making communications that would otherwise fall within the definition
of consultant lobbying above if the person carries on a business consisting of mainly non-lobbying
activities and the making of any such communication is incidental to the carrying on of those activities.xxv
4.2.1 There is also an exception for membership bodies and representative bodies – a person will not be
deemed to carry on the business of consultant lobbying if the person acts generally as a representative
of persons of a particular class or description, and
(i) the income of the person derives wholly or mainly from persons of that class or description,
and
(ii) the making of communications on behalf of those persons is no more than an incidental part
of that general activity.xxvi
4.3 The registrar’s guidance states that ‘incidental means ancillary to the main focus of a business (which is
not lobbying). The making of the communication is connected with the business, but is secondary to its
main concern’.
4.4 The registrar’s guidance specifically states that “charities are exempt from registering as long as they do
not receive payment for making communications from the person upon whose behalf they are made”
(although this is not an explicit exception in the legislation).
4.5 Other exceptions apply and are explained in more detail here: http://registrarofconsultantlobbyists.org.
uk/guidance/requirements-to-register/exemptions-from-registration/
5. HOW MIGHT THE LEGISLATION APPLY TO CAMPAIGNING GROUPS

AND CHARITIES?
5.1 It is likely that in many cases campaign groups and charities, even those that do engage in lobbying
activities with government representatives as part of campaigns, will be able to rely on the ‘incidental
activity’ exception in the legislation (and, for charities, rely on the registrar’s guidance assertion that they
do not have to register unless they receive payment for making the communication).
5.2 For example, you might at times seek to advocate with senior government officials on behalf of your
beneficiaries, but for this to be regulated it would also be necessary for it to be shown that the organisation
was in some manner being paid to provide such a service by those beneficiaries.
5.3 The Act has been criticised as being too narrow in scope, and prior to the calling of the snap election in
2017, a bill was passing through the House of Lords to reform the law in this area, and would, if restarted
and passed, significantly widen the scope of what types of work and organisations would be caught
under lobbying rules – so this is an area to monitor.
44
Case studies
REUTERS/JEFF J MITCHELL
case studies
1. A local campaign group (which is not a charity) has been running a campaign aimed at
all political parties, encouraging them to stop reducing welfare benefits. Just as they’re
about to launch the next phase of the campaign, a snap election is called. The group
now wonders whether they have to stop campaigning because of election law. As they
carried out some of their campaigning activities in the year before the election was
called, they’re also concerned that they might have to pay a fine. Would they be able to
continue with some of the activities related to the campaign? Would they have to pay a
fine?
The campaign group would not need to stop its campaign simply because of the announcement
of a snap election, but it would need to assess whether the next phase of its planned campaign
might be regulated under election law.
This would involve applying the purpose, activity and public tests to the campaign, i.e:
Purpose test: could a reasonable person view the campaign as reasonably regarded as
intended to promote or procure electoral success for a political party or category of candidates?
Activity test: is the campaign activity a regulated activity, i.e. is it a publication (including
leaflets, adverts, websites and social media), event, canvassing and/or market research?
Public test: Will the activity be aimed at the public or a section of the public? Note that press
conferences and other media events do not need to be themselves made available to the
public to be regulated.
The factors that are likely to impact on whether or not a campaign to stop reduction of welfare
benefits is regulated or not will be context-driven. For example, this will depend on the
language and tone of the campaign (and whether there is any call to vote or language aimed
at voters rather than at the parties themselves) and whether welfare benefits are a key part
of electoral debate/can be clearly divided on party lines (i.e. if there is one party that is very
clearly committed to increasing benefits and some that are not). Pre-manifesto, it is less likely
that such activity would be regulated as the campaign group may be seen to be attempting
to influence the contents of said manifestos/commitments of the parties, rather than being
attempting to influence the public on who to vote for. The key question is whether within the
context of the election and political discourse at the time, could a reasonable person regard
the campaign as intended to influence people’s voting choices?
Even if the campaign group did decide that the campaign activity was regulated by election
law, this would not necessarily mean that it wouldn’t be able to proceed with the campaign, it
would just mean that it would have to evaluate the costs associated with the campaign and potentially
register with the Electoral Commission.
The regulated period for a general election is 365 days (unless there is less than 365 days between
elections, in which case it is the length of that lessened period between elections). If the snap election
meant that the election was less than 365 days away, then the campaign group would also have to
consider whether its previous campaigning activity within the now retrospective regulated period might
be regulated.
Provided that the previous campaign activity did not relate to any other election (such as a local
election, devolved election or PPC election), then it is unlikely to be regulated if it was an issue based
campaign aimed at all political parties generally. This is because the test for regulation is whether the
activity could be reasonably regarded as intended to promote or procure electoral success for a party
or category of candidates at an election, and it is difficult to see how activity undertaken without an
election on the horizon could be intended to promote electoral success (as opposed to just a policy
change commitment). The position may be complicated if a snap election had been widely anticipated
prior to its formal announcement, as campaign activity could then be seen as intended to promote or
procure electoral success if it is reasonable to assume that the campaign group focused the campaign
around the possibility of an imminent election.
Even if the campaign group did decide that its previous campaign activity within the regulated period
was regulated, then the next step would be to evaluate the costs attributable to the total of the likely-
regulated campaign activity already undertaken and planned for the next phase, to see if this figure
(together with any other regulated activity the group may undertake) would exceed the registration
thresholds (i.e. £10,000 in Wales, Northern Ireland and Scotland and £20,000 in England).
If the total regulated campaign activity did not exceed the relevant registration threshold, then the
campaign group could continue with the campaign as planned (monitoring its actual spend to ensure
that it did not exceed projections and retaining records of its evaluations of regulated activity in case of
any challenge or enquiry from the Electoral Commission or other party).
If the total regulated campaign activity did exceed the relevant registration threshold, then the campaign
group would need to register with the Electoral Commission as a non-party campaigner (assuming that
it was eligible to register – which it would be if it was a UK based unincorporated association or company
undertaking activities in the UK). The campaign group would then have access to the higher registered
campaigner spending limits for the election, giving it significantly greater room to campaign as it liked,
but being subject to various regulatory and compliance requirements such as ensuring that donations
came from permissible donors and were reported as required by the Commission, that invoices were
retained for all regulated expenditure over £200 and that all regulated expenditure was authorized by a
specific person at the organisation in charge of compliance with the electoral commission’s framework/
election law (the ‘responsible person’ who has to be named when the organisation registers) or someone
authorised by them in writing.
If the organisation exceeded the registration threshold because of earlier activity already undertaken
then the Electoral Commission confirmed for the 2017 snap election that it would be unlikely to impose
fines for those that had already breached the unregistered regulated activity spend threshold, as long as
organisations took prompt steps to register.
Note that if the campaign group’s campaign was going to be focused on specific local candidates and
restricted to the local area, as opposed to political parties generally, then it may need to consider the
local campaign rules/the RPA and would face a significantly lower spending limit of £700 (unless its
campaign expenditure was authorized by candidates).
2. An environmental charity working on a clean air campaign in London has learned that a certain
political party has just made an election promise to reduce C02 levels. The trustees of the charity
don’t want to stop campaigning because if they choose not to speak out about the risks of polluted
air, they will not achieve their charitable mission. They don’t want to let down their supporters
and donors or fail in their duties as trustees. Other measures will be less effective and more
expensive than their existing campaign. Increased costs would also mean that they would have
to start limiting their services. Would they be permitted to continue campaigning? Would they be
obliged to continue because of their charitable duties?
The environmental charity would not have to stop campaigning because a political party took on one of
its policy objectives as an election promise. It would need to undertake a risk assessment, to ensure that
the trustees of the charity continued to comply with their duties and taking into account the change to
the risk profile of the campaign from such an event, though ideally this risk would already be factored
into a campaign risk assessment and a risk mitigation plan already considered. The charity would need to
ensure that its campaigning was not party political and that it was careful not to be seen to be promoting
or supporting the party that had committed to the co2 level reduction (for example by refusing to be
quoted in the party’s manifesto and being alive to the risk of the political party attempting to use the
charity’s campaign as a tool of self-endorsement), but the charity would not need to stop campaigning.
It may need to reconsider some of its campaign phrasing if it could be seen to meet the purpose test
under electoral law (if the charity did not want to register or have to monitor regulated spending to
ensure it stayed under the registration threshold) and to ensure that it did not breach charity commission
guidance, and should continue to ensure that political impartiality was maintained.
3. Three NGOs working to protect the rights of refugees and asylum seekers are collaborating on a
joint campaign to generate public awareness around the plight of asylum seekers who are refused
entry into the UK. One of the NGOs is providing all the funding for the campaign. Politicians have
been debating migration issues for a long time as it is an inherently political issue. The NGOs are
concerned about inadvertently campaigning for a particular party position.
(a) What steps should the NGOs take to ensure that they don’t somehow align themselves with
a particular party?
The NGOs would only need to ensure that they did not align themselves with a particular political
party if they were:
a) charities; or
b) trying not to incur any regulated expenditure under electoral law (or had already used up their
unregistered spending limit for regulated activity and did not want to register with the Electoral
Commission).
Otherwise, it would be open to the NGOs to register with the Electoral Commission and to incur
regulated expenditure, even if that was directly aligned with/supporting a political party (subject to
any constitutional or reputational restrictions on the NGOs).
If the NGOs did not want to incur regulated expenditure on the campaign by passing the purpose
test, then the NGOs should monitor political discourse around its core campaign issues during
the election campaign to ensure that they do not, for example, inadvertently use a particular
party’s rhetoric or slogans around the asylum issue (for example, ‘bedroom tax’ was seen as a
Labour propagated phrase/terminology during the 2015 general election and so using alternative
phrasing, such as ‘under-occupancy charge’, would help to mitigate the risk of being seen to align
with a particular party in that example). They should have a reactive campaigning policy in place,
particularly for social media, to ensure that staff and volunteers were aware of the importance of
remaining partisan.
It would not just be a matter of ensuring that they were not aligned with a particular political party, as
the purpose test could be passed without implicitly or explicitly supporting one party – the test also
applies to campaigning which could be reasonably regarded as intended to promote (or prejudice)
electoral success for categories of candidates, i.e. those that support asylum seekers.
The key to avoiding passing the purpose test with the campaign would thus be to also ensure that
the tone, context and timing and language of the campaign material did not meet this test and was
not aimed at influencing voter behaviour.
(b) If the campaign only involved a few positive stories about refugees living in the UK, would
that be acceptable under election law?
Again, this would depend on the context of the campaign, but provided that the campaign was
clearly about the positive impact of refugees to society and the messaging/accompanying material
supported this, then it may not be regulated or pass the purpose test.
(c) In what circumstances would the NGOs have to register and would each one of them have to
register under election law?
Due to the fact that the NGOs are working on a joint campaign, the joint campaigning rules under
election law would apply to the campaign if it was regulated/met the purpose test. That means the
total of the cost of any regulated activity under the campaign would be attributed to each of the
three NGOs. So even though only one NGO will be funding the campaign, all three of the NGOs will
be deemed to have spent however much money is either spent or can be attributed to any regulated
activity under the campaign, even if that funding only comes from one of the NGOs, or only one of
the NGOs actually undertakes the activity (where the campaign is planned/co-ordinated between
the three NGOs). So, if one of the three NGOs spends £5,000 on regulated activity within the joint
campaign, then all three of the NGOs will be deemed to have spent £5,000 each on the campaign.
Whilst this would be under the registration threshold of £10,000 in Scotland, Wales and Northern
Ireland or £20,000 in England, each NGO would have to ensure that it had not separately spent any
other money on regulated activity which would need to be added to its £5,000 deemed spend on
the joint campaign that could take it over the relevant spending threshold.
The NGOs would need to register with the Electoral Commission before their regulated spend
exceeded the relevant registration threshold, whether this be due to any one (or a combination of
them) spending over £20,000 on regulated campaigning or due to their individual regulated activity
combined with their deemed spend on joint campaigning exceeding the threshold.
For general elections, there are options for registering joint campaigns in a way that means that only
one (or a few) of joint campaigning bodies have to register with the Electoral Commission and report
all of the NGOs/members of the joint campaign’s spending, but this can be a complex area and
further advice should be sought. The Electoral Commission’s guidance for the 2017 general election
on joint working is available here, which explains the ways of structuring registration and reporting
for joint campaigns in further detail: https://www.electoralcommission.org.uk/__data/assets/pdf_
file/0006/225195/UKPGE-2017-Joint-campaigning.pdf
i. E.g. McGovern v Attorney-General [1982] Ch 321

ii. https://www.gov.uk/government/publications/speaking-out-guidance-on-campaigning-and-political-activity-by-charities-cc9/speaking-out-g
1. Questions taken from the following source:campaigning-and-political-activity-by-charities
https://www.gov.uk/government/publications/speaking-out-guidance-on-campaigning-and-political-activity-by-
iii. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/591355/Charities_Elections_and_Referendums_new.pdf
charities-cc9/speaking-out-guidance-on-campaigning-and-political-activity-by-charities
2. Only organisations incorporated in the UK https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/485441/the_badger_trust.pdf
iv. will be eligible from Exit Day (i.e. the day from which the UK ceases to be a member of the European Union) and
v. CC26
references to organisations incorporated within the EU will be removed from the legislation
3. vi. CC3 ‘the essential trustee’
https://www.electoralcommission.org.uk/__data/assets/pdf_file/0009/224955/UKPGE-2017-Overview-of-non-party-regulated-campaign-activity.pdf
4. vii. https://www.gov.uk/government/publications/its-your-decision-charity-trustees-and-decision-making/its-your-decision-charity-trustees-a
http://www.electoralcommission.org.uk/__data/assets/pdf_file/0006/225195/UKPGE-2017-Joint-campaigning.pdf
making
viii. https://www.gov.uk/government/publications/campaigning-and-political-activity-by-charities-prior-to-the-2017-general-election-case-report/c
and-political-issues-arising-in-the-run-up-to-the-2017-general-election
ix. As at 31 December 2016 -- https://www.gov.uk/government/publications/charity-register-statistics/recent-charity-register-statistics-charity-comm
x. Set out at section 75 Representation of the People Act 1983
xi. See section 102 PPERA for the regulated period for referendums (the ‘referendum period’) and section 94(10)(a) which refers to schedule 10 se
variable regulated periods for elections (subject to 94(11) for elections affecting Gibraltran non-party campaigners). Part II of Schedule 10 sets ou
lengths of regulated periods.
xii. For elections, the test is set out at section 85 PPERA – note that the test for referendums is slightly different and not covered within this guidance.
xiii. Registration limits are set out at 94(5) PPERA
xiv. Section 85 PPERA
xv. Schedule 8A(1) PPERA
xvi. Schedule 8A(2) PPERA
xvii. At Schedule 10 PPERA
xviii. https://www.bce2018.org.uk/faq
xix. See sections 75 and 76 RPA
xx. RPA section 76 (2)(a)
xxi. Part 1, Section 1(1), Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014
xxii. Section 5 of the same
xxiii. Section 12 of the same
xxiv. Part 1, Section 2 of the same
xxv. Schedule 1, part 1, para 1 of the same
xxvi. Schedule 1 part 1 para 2 of the same

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CAMPAIGNING LEGAL GUIDE:

POLITICS, ELECTIONS AND LOBBYING

Simon Steeden is a partner in the charity and social enterprise team at

Our resource library can be found on the TrustLaw homepage at www.trust.org.

About CAMPAIGN BOOTCAMP

ABOUT Bates Wells

For more information, please contact Simon Steeden at [email protected]. Simon is a

CHARITIES AND POLITICAL ACTIVITY……………………………………………………………11

A. charities engaging in public or private activities aimed at supporting, opposing or

B. any individual or organisation engaging in activity in the run up to an election which

C. any individual or organisation making personal communications with government

Charities and political activity

1.3 So, if your organisation’s purpose is directed at:

(a) furthering the interests of any political party; and/or

then it cannot register as a charity.

2. CAN A CHARITY UNDERTAKE POLITICAL ACTIVITY AND

2.2 CC9 divides campaigning into two types:

3. CAN A CHARITY SUPPORT OR CAMPAIGN FOR A POLITICAL

4. HOW CAN A CHARITY MONITOR AND MANAGE ITS CAMPAIGNING

General risk management:

- Is the charity acting outside its purposes?

- Has the charity undertaken a risk/benefit analysis?

- Have the trustees approved a strategic plan for campaigning?

- Do the trustees regularly review campaign risks?

- Are there campaign evaluations and impact assessments in place?

CC9 checklist for campaigning and political activity1

2 How would this campaign or political E.g. by contributing towards a legislative/

7 What evidence is there to support the E.g. point to statistics/testing/

The charity believes that the anticipated

10(b) If so, how would financial and E.g. see above

5. CAN A CHARITY CAMPAIGN IN THE RUN UP TO AN ELECTION?

6. HOW CAN CHARITIES ENSURE THAT THEY USE THEIR VOICE

- In continuing to campaign on a policy position or issue that is particularly similar to that of a

7. HOW CAN A CHARITY MITIGATE THE RISKS OF BREACHING

(i) act within their powers;

(ii) act in good faith;

(iii) make sure they are sufficiently informed;

(vi) deal appropriately with any conflicts of interest

8. THE LOCAL GOVERNMENT ACT 1986

2. WHEN WILL INDIVIDUALS/ORGANISATIONS NEED TO ENGAGE

3. WHAT ARE THE GENERAL CAMPAIGN RULES?

3.2.1 Individuals registered on UK electoral registers;

3.2.2 UK Charitable Incorporated Organisations (CIOs);

3.2.4 Royal Charter bodies;

3.2.5 UK registered political parties; and

4. WHAT IS “CONTROLLED EXPENDITURE?”

4.1.1 one or more particular political parties;

5. HOW CAN AN ORGANISATION ASSESS WHETHER SOMETHING

Tone: For example, is the tone of your campaign negative or

positive towards a political party or parties, or category of

candidate, or a policy that a party or category of candidate

supports or does not support?

Context and timing: For example, are you campaigning on

an issue that is prominent in public debate? Are you

campaigning on an issue that clearly represents an area of

difference between political parties? Are you campaigning as a

reaction to a policy or position of a political party? Are you

campaigning close to the date of an election (campaigning very

the purpose test)?