March has seen two important developments in the regulation of political campaigning activity by charities, particularly in relation to campaigning prior to the EU referendum and the Lobbying Act.
Many charities will be aware of the issuance by the Charity Commission on 7 March of new guidance for charities wishing to engage with the debate regarding the upcoming referendum on the UK’s membership of the European Union (https://www.gov.uk/government/news/charity-regulator-issues-guidance-on-eu-referendum). BWB has been advocating that the Commission should issue new guidance in this area for several months, to resolve some of the ambiguities contained in the existing guidance, Charities, Elections and Referendums.
BWB has prepared a detailed briefing on our analysis of the new guidance and the underlying law (http://www.bwbllp.com/knowledge/2016/03/18/charity-commission-guidance/), providing our interpretation of the guidance for consistency with the underlying law and other relevant Charity Commission guidance. The briefing is intended to help charities navigate these issues in planning any engagement with this important cross-generational debate that they might feel is necessary to support continued delivery of their charitable purposes.
In BWB's view, the new guidance misrepresents the law, is contradictory in a number of areas and fails to resolve some of the ambiguities we previously identified in existing guidance. We are asking the Charity Commission to urgently amend and/or clarify the guidance. In particular:
- The guidance suggests that charities are only entitled to campaign in relation to the referendum in “exceptional” cases, implying a legal test of exceptionality which we do not consider to have a legal basis.
- The guidance uses terminology for assessing the lawfulness of political activity which is inconsistent with other relevant Charity Commission guidance and so is likely to confuse trustees, in a manner contrary to the Commission’s statutory duty to have regard to principles of consistency and transparency.
- The guidance seems to suggest that co-operating with political parties is equivalent to co-operation with remain or leave campaigners in the EU referendum and to suggest that nether will be appropriate. It may be entirely appropriate for charities to assess and manage risks associated with such activities; and co-operating with other campaigning groups may be the most efficient available approach to advancing a charity’s objectives.
- The guidance seems to elevate matters of good practice to legal requirements, such as in its emphasis on disclosing the sources of a charity’s funding in the course of any campaigning activities. This guidance neglects to recognise that charities are already unusually transparent, due to their requirements to report to the Charity Commission and transparency requirements which are often included in grant funding agreements.
- The tone of the guidance seems to be intended to deter charities from engaging with the referendum campaign, in a manner which is inconsistent with the tone of other Charity Commission guidance and the very positive guidance issued on 10 March by the Office of the Scottish Charity Regulator (http://www.oscr.org.uk/media/2146/v10_guidance-on-eu-referendum_web-copy.pdf). Despite the devolved nature of charity regulation, there is no legal basis in statute or case law for divergence between the law applying to charity campaigning in England and Scotland, as demonstrated by the joint guidance issued by the UK charity regulators and the Charity Commission prior to the 2015 general election.
If you have any questions about the guidance or the content of this briefing, please contact Simon Steeden or Rosamund McCarthy.
Lord Hodgson issues his statutory review of non-party campaigning rules, as amended by the “Lobbying Act”
On 17 March, Lord Hodgson of Astley Abbotts issued his report into the operation of rules on non-party campaigning prior to an election which were amended and expanded in 2014 by the controversial “Lobbying Act”.
Simon Steeden, a partner in BWB’s charity and election law practice, provided legal advice to Lord Hodgson’s statutory review team alongside Helen Mountfield QC of Matrix Chambers, though Lord Hodgson’s finding are his alone.
The full report (https://www.gov.uk/government/publications/third-party-election-campaigning-review) advocates a package of reforms to the rules applying to non-party campaigning prior to an election. Importantly for charities, these include the proposal that a new subjective test of intent should apply to determine whether expenditure is regulated by electoral law, meaning that only spending actually intended to influence voter choice at an election would count towards electoral law spending limits, such as the threshold at which it is becomes necessary for an organisation to register with the Electoral Commission. As charities are prohibited from supporting political parties and candidates as a matter of charity law, this reform would mean that charities which are properly complying with the duties of independence and party political neutrality would not incur expenditure capable of regulation under the non-party campaigning rules, and charities would in practice not be able to register with the Electoral Commission under these rules.
The non-party campaigning rules are currently a live issue, as we are currently in the regulated period prior to elections to the devolved Parliament in Scotland and the National Assembly in Wales. Other electoral law rules apply to upcoming elections to the Greater London Authority, including election of the London Mayor.
Please contact Simon Steeden with any questions in this area.
Posted on 21/03/2016 in Legal UpdatesBack to Knowledge