2016 will see a range of elections across the UK, together with the likelihood of a referendum on the UK’s membership of the European Union. Organisations with an interest in the outcomes of these votes should be considering now how to navigate the complex rules that regulate participation in these campaigns.
Scottish and Welsh elections, May 2016
On 5 May 2016, there will be elections to the Scottish Parliament, Welsh and Northern Ireland Assemblies and the Police and Crime Commissioner elections in Wales. On 5 January 2016, what is known as the ‘regulated period’ in UK election law began for those elections, meaning that organisations with an interest in them should be considering the extent of any regulated activities they might be undertaking.
Under the Political Parties, Elections and Referendums Act 2000 (“PPERA”), individuals or organisations who spend money in the run-up to an election on certain activities that may “reasonably be regarded” as intended to influence voters to vote for or against political parties or categories of candidates, including those who do or do not support particular policies or issues, may be subject to spending restrictions and potential reporting and transparency requirements. As this ‘purpose test’ is objective and considers how a reasonable person might view the purpose of the spending, sometimes an organisation’s activities might inadvertently be regulated.
An individual or organisation cannot spend more than £10,000 on regulated activities which pass the ‘purpose test’ unless they have registered with the Electoral Commission as a non-party campaigner. Failing to register before exceeding this spending limit is an offence, which can give rise to criminal liability under PPERA. There are numerous exceptions and complexities to the non-party campaigning rules and BWB is already advising a number of campaigning groups, businesses, trade unions and charities on the application of the rules to their specific organisational structures and proposed activities.
GLA and London Mayoral elections, May 2016
From 21 March 2016, businesses, charities and individuals will also need to be aware of rules under the Representation of the People Act, which regulate materials intended to influence voters as to elections to the Greater London Assembly, including the London Mayoral election. Many businesses and campaigning groups may be considering participating in activities surrounding the London elections, and BWB is already advising organisations on the legal position with regard to activities such as candidate hustings.
With the referendum on the UK’s membership of the European Union looking likely also to occur in 2016, possibly as early as June, it is likely that this year will also see the start of a regulated period under PPERA in respect of EU Referendum campaigning. Organisations which may spend more then £10,000 campaigning in support of an outcome in the EU Referendum will need to register with the Electoral Commission as a ‘permitted participant’. Registration has been possible from 1 February 2016 and BWB is already helping a range of individuals and organisations navigate the complex rules in this area.
Charity law restrictions
Charities will need to be aware of charity law restrictions on political activity, in addition to electoral law restrictions, should they wish to engage with upcoming elections. BWB is already advising a number of charities on the application of the election law rules to their activities and also on compliance with charity law restrictions on political activity, such as auditing proposed campaigning materials for compliance with both election and charity law. BWB is used to working to tight time frames, driven by our clients’ reactive campaigning needs, and would be happy to discuss your organisation’s activities with you further.
Company law restrictions
Companies, including charitable companies, should be aware of restrictions under company law, which prohibit companies and their subsidiaries from incurring political expenditure or making donations to political or campaigning organisations without first obtaining approval from the company’s members. BWB has advised a number of businesses on compliance with these rules, including preparing of the necessary corporate authorisations to facilitate donations or political expenditure. Many companies choose to pass these authorisations as a matter of course, in order to avoid inadvertently breaching the rules, particularly as these restrictions apply continually, and not just during a regulated period prior to elections.
Get in touch!
BWB would be happy to discuss the implications of these various legal restrictions on political donations and campaigning for your organisation. For further information please contact a member of our Electoral, Political and Campaigning Law Group, top ranked in the Legal 500.
Posted on 03/02/2016 in Legal UpdatesBack to Knowledge