In the run up to an election, many organisations may consider arranging a hustings event, in order to give people an opportunity to hear from and question those standing in the poll. Where hustings are to be held in the pre-election period following dissolution of Parliament (30 March 2015), the organiser should be aware of the often complex interaction between a number of pieces of legislation which may apply. Organisers should also be conscious of the guidance of relevant regulators in this area, including the Electoral Commission (EC) and, in the case of hustings organised by charities, the Charity Commission for England and Wales (CC).
Donations and expenditure for political purposes are regulated by the Political Parties, Elections and Referendum Act 2000 (PPERA). This legislation governs both political parties and non-parties or third parties, including as charities. Amendments to PPERA introduced by the Transparency of Lobbying, Non-Party Campaigning and Trade Union Act 2014 (the Lobbying Act) have extended legal duties for third party campaigners. Different rules apply in relation to candidates in particular constituencies and those who campaign for or against them. These are governed by the Representation of the People Act 1983 (RPA).
Under PPERA, if an organisation intends to spend more than £20,000 in England or £10,000 in Wales, Scotland or Northern Ireland on "controlled expenditure" then they will be required to register with the EC as a third party.
"Controlled expenditure" under PPERA includes expenditure on public events which “can reasonably be regarded as intended to promote or procure electoral success at any relevant election” for any political party or parties, or any candidates who hold or advocate (or do not hold or advocate) particular opinions or polices, or who otherwise fall within a particular category of candidates. It is possible that expenditure on a selective hustings event, where not all candidates or parties contesting an election are invited (for reasons which are not impartial or objective), could be regulated under PPERA.
In additional to the rules under PPERA, campaigning for or against candidates in a particular constituency is governed by the RPA. The EC does not regulate this type of campaigning; instead breaches of these rules would be a matter for the police and Crown Prosecution Service.
The RPA prohibits spending over £700 on specified categories of activity for the purpose of “promoting or procuring the election of a candidate” unless that expenditure is approved by the candidate’s election agent. The prohibition applies from the date that Parliament is dissolved and could, again, apply to costs incurred on a selective hustings, where certain candidates are excluded from participation for subjective reasons.
The rules under RPA are separate from those on constituency campaigning under PPERA. An organisation organising a local hustings may, therefore, be subject to both sets of rules.
In the event that a hustings is considered to be of the kind governed by PRA it is possible that the associated expense may also be deemed to constitute a donation to a candidate or candidates or to a party or parties. Where an organisation may be considered to be promoting one or more candidates, that organisation should advise those candidates or their election agents in advance of the event and provide details to the anticipated expenditure, which may count towards candidate campaign spending limits.
A fundamental principle of charity law is that charities must be independent from party politics. The CC specifically states that charities must not make donations to political parties or to election candidates and must not seek to promote or prejudice electoral prospects. So, being deemed under the RPA to have made political donations by virtue of holding a selective hustings will result in particular difficulties for charities arranging hustings events.
The CC has issued specific guidance on the rules governing the activities of charities during the pre-election period following dissolution of Parliament. That guidance also contains restrictions on the ability of charities to exclude parties or candidates from public events such as hustings, where the exclusion is not for objective or impartial reasons, or due to an expectation that engagement with a candidate or party would further or hinder the interests of the charity. Even then, charities are advised to exercise significant caution when considering excluding candidates from a hustings event.
This note only aims to identify some of the rules that can apply to the organisation of hustings following dissolution of Parliament. The application of the rules to particular circumstances can be complex. Ultimately, it is advisable to organise hustings on an impartial basis, with all candidates or parties being invited and with the event chaired fairly and impartially. Where it is thought necessary to deviate from these principles, particularly where the organiser of a hustings is a charity, seeking appropriate advice would be recommended.
Posted on 31/03/2015 in Legal UpdatesBack to Knowledge