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The run up to the General Election 2024

Age UK

Suhan Rajkumar, Bates Wells

June 2024

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The political context

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Preparing for a general election:

Charity law and guidance

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Charity Commission guidance

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‘Non-political’ campaigning – individual behaviour

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‘Non-political’ campaigning - corporate behaviour

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Political campaigning: law and public policy

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Campaigning and political activity – key principles

Political purposes �cannot �be charitable

Charities must have �exclusively charitable purposes

Political activity cannot be a charity’s sole and continuing activity …

Political activity in furtherance of charitable purposes is permissible

Trustees must have a clear and credible evidence base

Charities can never be party political

… but can be for a period of time

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Charity Commission supplementary guidance: ‘Charities, Elections and Referendums’

Applies from the “announcement” of election to election date

CC9 always applies - but time before an election considered particularly sensitive

“The guiding principle of charity law in terms of elections is that charities must be, and be seen to be, independent from party politics”

The guidance is shaped around what the Commission sees as key risk areas for a charity’s party political independence:

Parties

Candidates

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Case study: The Trussell Trust

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Case study: Oxfam

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Case study: RSPB

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Other relevant case studies…

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Case study: Parkrun

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Case study: Scope 2017 and MIND 2019

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Charity Commission Social Media Guidance

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What does this mean for me personally?

These principles apply to the charity, not its staff acting personally in their own time
However, the distinction is not always necessarily clear

Senior staff members who represent a charity
Flexible working and use of charity resources (e.g. emails and phones)
Social media and the charity’s brand

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A better kind of public discourse?

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Preparing for a general election:

Election law

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Law affecting non-party campaigners: general campaigns

PPERA 2000

Lobbying Act 2014

Elections Act 2022

Created non-party general campaigning regime

Widened scope of PPERA

Further widens scope of PPERA

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What does the regime mean for campaigners?

Possibility of regulated activity with value over £10,000 across entire UK during the regulated period?

(Overseas organisations cannot incur more than £700)

YES

NO

Possibility of regulated activity with value over £20,000 in England and/or £10,000 in any of Scotland / Wales / NI during regulated period?

YES:

Must register with the Electoral Commission as a ‘full’ non party campaigner

NO:

Must notify with Electoral Commission as a lower tier campaigner

NO:

Do not need to register with Electoral Commission as a non-party campaigner

This is the new law – for elections after November 2023

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Application to campaigns

one or more particular registered parties, �
one or more registered parties who advocate [or do not advocate] particular policies or who otherwise fall within a particular category of such parties�
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”

Broadly, during the regulated period, spending on public-facing activities will be regulated under PPERA if it:�

“can reasonably be regarded as intended to promote or procure electoral success at any relevant election for –

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Case study: Macmillan

Suhan: We thought it might be helpful to pause there and look at a couple of examples of applying the purpose test.

So first off, this Macmillan ad from 2015

It obviously references the election, was used during the election campaign and encouraged people to engage with their local candidates asking them agree that the next Government should make cancer care a priority.

Generally, the Electoral Commission takes the view that where you carry out pledge campaigns that identify which candidates have and have not signed up to your policy positions, that will be regulated because there will be an implicit call to action to vote for the candidates making the pledge.

But in this case, we think the generic nature of the pledge, which isn’t tied to a particular policy position that might be associated with a particular party or category of candidates, means it is difficult to see it as encouraging people to vote in a particular way, and so would be unregulated.

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Case study: Led by Donkeys

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Joint campaigning – ‘common plan or arrangement’

Unlikely to be joint campaigning	Likely to be joint campaigning
Endorsing another campaign without financial commitment	Joint advertising campaign, joint leaflets or joint events
Adding your signature to a letter alongside other non-party campaigners without any financial commitment	A co-ordinated campaign; e.g. where it is agreed which areas are to be covered, which issues raised or which voters targeted.
Speaking at an event organised by another non-party campaigner without any financial commitment	Joint working where one party can veto or must approve another party’s material
Holding discussions about areas of common interest without coordinating campaign activity
Making a donation to another non-party campaigner

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Case study: Children’s Charities Coalition

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Don’t forget to consider…

Companies Act 2006

Content regulation: Defamation, false statements advertising codes of conduct, reputation management

The Registrar of Consultant Lobbying

Other jurisdictions?

Suhan: It’s also important to remember that for campaigning companies, there are rules requiring member approval for political spending and donations. Advertising law can be relevant to campaign content. There is a separate regime for regulating communications with ministers and senior civil servants where paid by a third party which can sometimes be relevant to restricted funding arrangements for example.

[Suhan

False statements: Under the Representation of the People Act 1983, it is a criminal offence for anyone to make a false statement of fact about a candidate’s personal character or conduct for the purposes of affecting the return of any candidate at an election, unless they can show they had reasonable grounds for believing and did believe the statement to be true. It is important to distinguish between a statement of fact and a statement of opinion, and, equally, between personal and political conduct and character. The consequences of a finding of guilt can be dramatic: in 2011, the election of MP Phil Woolas was overturned after the court found that he had falsely accused his Liberal Democrat opponent of courting the votes of Muslim extremists advocating violence. Accusations about the intent behind policies or someone’s overall character could conceivably fall within the scope of this prohibition and it is important therefore to ensure that you have reasonable ground for believing any such statements to be true.
Defamation: Individuals and corporate entities may sue for defamation if they are the subject of a publication to third parties that causes serious harm to their reputation or serious financial loss. Central and local government bodies and political parties are not permitted to bring such claims. Individual politicians or officers can sue for defamation (or malicious falsehood), but allegations against a party will not readily be inferred to refer to the individual leader. Whether at election time or not, defences against defamation include that the statement is true, an honest opinion and on a matter of public interest. The courts are keen to protect political speech and have been consistently slow to find that political statements are defamatory, such as in the recent case where allegedly dishonest statements about the businessman and political donor Arron Banks by the journalist Carole Cadwalladr were not found to be defamatory by the High Court because they were protected by the public interest defence. For example, allegations that particular politicians are complicit in torture could be argued to be defamatory.
Privacy: Revealing private information about a politician may be justified either because their public role informs against their reasonable expectations of privacy, or because it can be said to contribute to a debate of general interest.
Intellectual Property: You should also consider what content you are using in campaign materials and your right to do so - videos and sound snippets are all readily available on the internet, and with social media continuing to change how we digest and share information, it is very easy to fall into the trap of using them unlawfully. It’s really important that you’re asking the question; ‘Who owns these materials, and do we have permission to use them?’ Be mindful too of whether an individual can be identified from your content – for example in photographs – in which case this is likely to be personal data, which is protected in law. Be aware that company names and logos and political party names and logos will be protected from unauthorised use as trade marks or copyright works – looking for example at the Barbie image and the , although we note that this is very unlikely to be challenged and may be justified on other grounds. Infographics stunt. [page 8]

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Questions?

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Contact us

Suhan Rajkumar

Senior Associate

020 7551 7718

s.rajkumar@bateswells.co.uk

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Thank you

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