Legal health check for campaigning in the UK
17 November 2015
Campaigns often come into contact with the law, whether they choose to or not. But before you even start beating the drum, there are a number of questions you should consider, including how your campaign fits into the legal framework in the UK, according to Sarah Gilbert.
Legal terms cheat sheet
'Objects' is the term used to describe and identify the purpose for which your charity has been set up. They do not say what it will do on a daily basis but rather describe the broad overarching purposes of the charity.
The Charity Commission is the independent Government agency that registers and regulates charities in England and Wales.
Note, a separate Office of the Scottish Charity Regulator and Charity Commission for Northern Ireland are responsible for regulation of charities in the respective nations.
In addition to complying with general legal duties (for example, on health and safety and employment), charities are subject to specific statutory duties. These are mainly found in the Charity Act 2011 which consolidated four Acts of Parliament into one. It didn’t make any changes, but combined them in one law.
The lobbying act:
The Transparency of Lobbying, Non Party Campaigning and Trade Union Administration Act (commonly known as the lobbying act) was passed in January 2014. It has potentially substantial implications for campaigning. Its provisions will come into law throughout 2014 and 2015. The Electoral Commission and the Charity Commission will be producing guidance complying with the act. It is important that all campaigning organisations familiarise themselves with the rules and consider the implications for their work.
What does being a charity mean in terms of the law?
Registered charities can campaign, but there are restrictions. Charities must adhere to charity law and ensure everything they do furthers their charitable aims.
Many charities do work that is ‘political’, but political activities and political campaigning must not be the main and on-going activity of the charity. This type of campaigning can only be undertaken if it supports delivery of charitable objects.
Charities must remain independent from political parties and remain neutral. They should be balanced in their involvement with different political parties and must not give support or funding to a political party, candidate or politician.
The Charity Commission believes that charities are well placed to conduct campaigns. The principle of separation between charity campaigning and political activity is the same, regardless of whether the activity is carried out in the United Kingdom or overseas.
Charities in England and Wales must comply with Charity Commission guidance on campaigning and political activity (“CC9 guidance”), as well as their supplementary guidance on Charities, Elections and Referendums.
Are you campaigning in the run up to an election?
The lobbying act set new rules for anyone campaigning in the run-up to the:
UK General Election
European Parliamentary Election
National Assembly for Wales
Northern Ireland Assembly
Campaigners must register with the Electoral Commission if they are intending to spend more than £20,000 (England) or £10,000 (Scotland, Northern Ireland Wales) on campaigning ‘regulated activities’ as defined by the act, during the ‘regulated period’.
‘Regulated activities’ include the production of written materials, market research, public meetings, press events, transport and staff costs. It specifically excludes costs associated with reasonable adaptation for disabled people, safety and security costs and translation costs to and from Welsh.
At the 2015 UK general election the ‘regulated period’ - where spending limit rules will apply - starts on 19 September 2014 and ends on polling day, 7 May 2015.
There are national spending limits on the total amount that can be spent in each country (£319,800 in England, £55,400 in Scotland, £44,000 in Wales, £30,800 in Northern Ireland), including spending in individual constituencies or in coalition. There is also a constituency spending limit of £9,750 in each constituency.
Non-political party campaigning will be reviewed after the 2015 general election and will report to parliament within 18 months of the election.
Are you campaigning as part of a coalition?
Campaigning in a coalition can be very effective. There are rules that govern how charities can campaign; these are regulated by the Charity Commission. Before embarking on a campaign, or joining a coalition campaign, do read the relevant Charity Commission guidance on campaigning and political and activity (“CC9 guidance”). Even when your organisation is a member of a coalition, any campaigning or political activity undertaken by the charity as part of the coalition should contribute to delivering their specific charitable purpose.
Under the new lobbying act, organisations can become ‘lead campaigners’ with the Electoral Commission and take responsibility for reporting spending on behalf of minor campaigners who are part of the coalition, providing that the minor campaigner does not spend more than the registration threshold. You should consider carefully the likely spend of your campaign and which organisation is best placed to be the ‘lead campaigner’.
Are you planning to send out any marketing communications?
Campaigning organisations can be challenged as to the accuracy of their messages and have to be able to substantiate their claims.
The Advertising Standards Authority (ASA) regulates all UK marketing communications, including campaign direct marketing and adverts in the press. This also includes online communications on websites and non-paid-for space under an organisation’s control, such as social networking sites.
What campaign tactics are you planning?
Protests which include demonstrations, marches and stunts may be an important part of your campaign plan. They are all legal, but because there are public campaign tactics they are subject to restrictions. The legal parameters may vary across the UK and particular consideration should be given to direct action tactics.
The Campaigns Central website provides a useful overview of some relevant laws and what they mean for your campaigning.
Are you campaigning with children and young people?
There are specific rules about campaigning in schools. The Education Act 1996 forbids the promotion of partisan political views in the teaching of any subject in schools. In this context, partisan means one-sided rather than just party political. It requires governing bodies, head teachers and local education authorities to take all reasonably practical steps to ensure that children are offered a balanced presentation of opposing views when looking at political issues.
Depending on the contact your staff or volunteers may have with children and young people, you may also be liable for ensuring compliance with safeguarding legislation.
What else do you need to know?
Beyond these general points that apply to all campaigns, every campaign has its own unique topics and touch points with the law. It is important that at the start of your campaign you explore all of the legal implications and take legal advice if necessary.
For updates and information on The Lobbying Act and how to apply it, sign up for updates from the Electoral Commission.
Bond’s useful analysis of the Lobbying Act draws comparisons on how the law has changed and spending limits. Bond is also available to help members understand the rules and to also record the impact that the new rules have on your ability to campaign effectively, [email protected]
NCVO’s Charities and the Lobbying Act: Frequently Asked Questions’ sets out which campaigning activities are covered by the Act and when the regulation periods are.