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The law relating to General Elections, charities and undue spiritual influence

A note describing the provisions relating to General Elections, elections and referendums and how charities may, or may not act, as set out in current charity and electoral law, and the issue of undue spiritual influence.

A.        Introduction

This note describes the provisions relating to General Elections, elections and referendums and how charities may, or may not act, as set out in current charity and electoral law. It also highlights the issue of how religious or spiritual leaders may not unduly influence the vote of their congregations or followers based on the Representation of the People Act 1983.

B.         Charities and campaigning during a General Election, election or referendum

(i)         Charity law

Guidance on how charity law effects charities during elections of any kind or referendums are set out in the Charity Commissions guidance: Charities, Elections and Referendums guidance covering England and Wales (see: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/591355/Charities_Elections_and_Referendums_new.pdf.) This guidance supplements the Charity Commission’s guidance:  Speaking out: Guidance on Campaigning and Political Activities by Charities (CC9), and is in some respects stricter (see: https://www.gov.uk/government/publications/speaking-out-guidance-on-campaigning-and-political-activity-by-charities-cc9).

The following legal principles apply – described here from CC9 – apply at all times, even outside of an election:

  • A charity cannot be established for political purposes. So a charity cannot exist for the purpose of securing or opposing a change in the law, policy or decisions.
  • Charities can campaign for a change in the law, policy or decisions where such change would support the charity’s purposes. Charities can also campaign to ensure that existing laws are observed.
  • Party political support in any form is never allowed. So a charity cannot exist for the purpose of furthering the interests of any political party.
  • A charity may engage with political parties in ways which support its charitable purposes. If a charity has any involvement with political parties it must ensure this is balanced and it must always safeguard its independence.
  • Charities must never support or oppose a political party or candidate.
  • Charities must never donate funds to political parties, candidates or politicians.
  • Charities can engage with individual politicians. However when doing so they must remain politically neutral and consider how they can ensure public perceptions of neutrality.
  • A charity may give its support to one or more specific policies advocated by political parties if it would help achieve its charitable purposes. This is different from giving general support to a political party, which is not allowed.
  • Trustees must not allow the charity to be used as a vehicle for the expression of the political views of any individual trustees or staff member.

In the run up to an election, these principles apply more strictly so charities need to take special care to ensure their political neutrality.

Policies

A charity’s policy position on a particular issue may coincide with, or be more or less similar to, that of one of the political parties. In this case it is entirely acceptable for a charity to continue to campaign on that issue and to advocate its policy. But a charity must make clear its independence from any political party advocating the same policy. A charity must do nothing to encourage support for any political party, even if the party agrees with the charity’s policy.

Publicity

In any publicity material (including printed material, media interviews, and websites) a charity may promote its views on issues which relate to its charitable objectives and activities. However a charity must steer clear of explicitly comparing its views (favourably or otherwise) with those of the political parties or candidates taking part in the election.

A charity can publish a manifesto to persuade the political parties to adopt the policies which it advocates. It can also do this if the charity is simply trying to raise the public profile of the issues it was established to address. But it is not acceptable where the intention is to influence voter behaviour.

Election candidates

Charities are free to approach the candidates in an election, setting out their concerns and asking for the candidates’ opinions on them, with a view to promoting debate.

However, a charity should be especially wary of associating – or becoming associated in the minds of the public – with a particular candidate or political party. The point here is to remain neutral at all times.

A charity is free to invite candidates and political party representatives to public meetings about issues on which the charity is campaigning, eg it can invite candidates to debate those issues, or to speak at a reception to launch a charity’s campaign. However an event or speaking opportunity must not be seen as support for any political party. One way of making sure that this doesn’t happen may be to invite representatives from as wide a political spectrum as possible, although in some cases the Charity Commission recognises that it may be acceptable not to invite a particular candidate or political party.

Non-party campaigning rules

The non-party campaigning rules are intended to provide transparency and limitations on spending by organisations and individuals that are not political parties but are involved in election-related campaigning.

The ‘regulated campaign activity’ that brings a charity within the scope of the rules is activity that ‘can reasonably be regarded as intended to promote or procure electoral success at any relevant election’ for particular political parties or candidates (this is referred to as the ‘purpose test’). This includes parties and candidates who share particular views or policy positions.

The activities are only regulated if they also are aimed at, seen or heard by, or involve the public (this is referred to as the ‘public test’).

A charity’s official members and ‘committed supporters’ (such as regular donors with a direct debit, or people who are actively involved in the organisation) are not considered to be part of the public. However, active involvement is interpreted narrowly for these purposes. Furthermore, people with whom the charity regularly communicates (because they have signed up to email updates or social networking sites) are considered members of the public.

The difficulty for charities is that the definition of ‘regulated campaign activity’ can be met even in the following situations:

  • No party or candidate is expressly named (but for example, the charity is campaigning for a policy that is closely associated in the public’s view with one or more political parties).
  • The campaign activity is intended to achieve something else, such as raising awareness of an issue.
  • There may therefore be circumstances where charities are undertaking regulated campaign activity, even though they have no actual intention to support or prejudice particular parties or candidates (which would be prohibited under charity law). This is entirely legitimate, and means that charities need to register with the Electoral Commission as a non-party campaigner.

Understanding whether a charity needs to register involves looking at:

  • the charity’s campaigning activities during the regulated period
  • the timing of those activities
  • how much money the charity plans to spend on these activities.

The regulated period for non-party campaigners is 365 days from polling day. The regulated period for the 2017 general election on 8 June therefore started on 9 June 2016.

Charities will need to register with the Electoral Commission if during this period they have spent, or plan to spend, the following amounts on regulated campaign activity:

  • More than £20,000 in England
  • More than £10,000 in Wales, Scotland or Northern Ireland
(ii)        Electoral Law

Earlier in this guidance it was stated that charity law is very clear: a charity cannot support any political party at any time, and this requires especially careful management in the period before an election. The non-party campaigning rules say that a charity’s campaign activity and expenditure is of regulatory interest when the purpose may reasonably be regarded as being to influence the outcome of an election and it is targeted at the public. The first rule appears to preclude the second: charity law does not allow charities to spend money on the purpose that electoral law is seeking to control.

The relevance of electoral law to charities is due to the fact that the Electoral Commission takes an objective approach: this means that it might view campaign spending as a regulated activity even if it wasn’t the charity’s intention to influence voters’ decisions. So, while the Charity Commission recognises that such activity may be legitimate, a charity may have further obligations under electoral law and a charity would need to seek legal advice on this matter.

In particular, if a charity thinks it may incur expenditure on regulated campaign activity and the amount could require registration with the Electoral Commission, there is a judgement to be made at board level. This is because registration is likely to involve work in terms of a charity’s governance, activity planning, record keeping and reporting. These are factors trustees will need to consider carefully when deciding their charity’s campaigning activities in the run up to the election.

 

C.         Undue Spiritual Influence

On 12 August 2016, the Cabinet Office published the independent report of Sir Eric Pickles, former Secretary of State for Communities and Local Government. Sir Eric had been asked by the previous government to consider what further changes were needed to make the electoral system more secure in the light of the 2015 Tower Hamlets election court judgment and the consequent disqualification of the elected mayor for a number of corrupt and illegal practices. The Report, includes recommendations about how the government can prevent such crimes in the UK (see: https://www.gov.uk/government/publications/securing-the-ballot-review-into-electoral-fraud).

The case alluded to in 9. (above) is that of Erlam & Ors v Rahman & Anor [2015] EWHC (QB) (see: http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2015/1215.html), and it addressed a number of aspects of election law in relation to a petition brought by four members of the public, electors of the Borough of Tower Hamlets, under s128(1) of the Representation of the People Act 1983: one of the thirteen corrupt or illegal practices alleged in the petition related to “undue spiritual influence”. It is clear, in line with the principles set out by the Electoral Commission (see B (i) above) that religious and spiritual leaders may advise people on the issues at stake in an election but may not direct them how to vote and may not threaten them with any form of anathema, excommunication or consequences post mortem.

Published: May 2017

 

The sources for this guidance:  http://www.lawandreligionuk.com/ and https://www.ncvo.org.uk/ and primary sources as cited. For further information, see https://www.electoralcommission.org.uk/__data/assets/pdf_file/0005/149729/List-of-electoral-offences.pdf

While every effort has been made to ensure the accuracy of this information, it is not a substitute for legal advice.