How new changes to election rules could impact your campaigning

The last UK General Election took place just two years ago, yet senior Conservatives have indicated that they’re already planning for the next one.

Ahead of the polls, the Government is looking to make further changes to the rules governing elections, which could have a big impact on charity campaigning.

The proposed rule changes, set out in the Elections Bill, will make an already complicated and burdensome area of law even more confusing for organisations who do public campaigning. Part of the change will mean that more organisations may be required to register with the Electoral Commission.

Why are the rules changing?

The Government has said they want to increase transparency at elections. They’re concerned that the activities of some political campaigners aren’t being picked up by regulators, because these actors are deliberately spending beneath the existing threshold at which a campaigner would be required to register with the Electoral Commission.

Greater transparency at elections is undoubtedly welcome, but the presence of vibrant and inclusive public debate ahead of elections matters too. The new rule changes fail to get this balance right, hitting issue-based campaigners hard while doing little to provide the oversight and accountability needed to tackle the influence of dark money in UK politics.

What are the current rules?

If an individual or organisation spends more than £20,000 in England, or £10,000 in either Scotland, Wales or Northern Ireland, on regulated activity in the 12 months prior to a general election, they must register with the Electoral Commission. Once you register with the regulator, you’re required to make public all information about what you’ve spent your money on and where it came from.

Regulated activity includes any campaign action that can be seen by the public and could reasonably be regarded as intended to influence voter choice. For example, activities like score cards or those comparing party manifesto commitments, or candidates’ positions and voting records, are likely to be regulated under electoral law.

The existing rules already discourage many registered charities and issue-based campaigners from speaking out ahead of elections. We’re concerned that the Elections Bill will further exacerbate this. Evidence collected by the Sheila McKechnie Foundation shows that, to avoid falling foul of the rules inadvertently, issue-based campaigners will step a long way back from any activity that could even potentially be regulated.

How are the rules changing?

The Elections Bill will introduce a new ‘lower-tier.’ This would mean that charities who spend £10,000 on regulated activity, in the 12 months prior to an election, must register with the Electoral Commission as a non-party campaigner. That total includes staff time as well as spending on regulated activity undertaken by any joint campaigns that you are a part of (ie through coalitions, networks or partnerships, either formal or informal). To reduce the burden associated with registration, the government has said that ‘lower tier’ campaigners will be subject to less stringent reporting and transparency requirements.

The Bill also gives future governments the power to exert greater influence over the Electoral Commission and even remove entire categories of organisations (registered charities or trade unions) from the list of campaigners allowed to spend money on regulated activity. In effect, governments will be able to ban organisations from speaking out in the 12 months ahead of an election.

How will the changes affect your organisation?

Many Bond members will be campaigning on issues like climate change or global poverty, in the 12 months prior to elections. Most of these campaigns won’t be focused on the polls. As for those organisations that do engage in electoral campaigning, their motivation will be to raise greater awareness of the issues they work on, or persuade political parties to adopt favourable policies or positions, concerning these issues, in their manifestos.

As issue-based campaigners, UK NGOs rarely seek to influence voter choice at elections. And yet, some campaign actions will still be regulated under electoral law because the definition of what constitutes “regulated activity” is very broad and vague. If the proposed ‘lower-tier’ is implemented more charities may need to register with the Electoral Commission, which means more organisations will be put off from speaking out ahead of elections.

In September and October 2021, we conducted a survey to better understand how the proposed ‘lower tier’ would impact campaigners. The survey was conducted with ACEVO, the FSI, NCVO, SCC and SMK. We found that:

• One in three campaigners who responded to the survey said the new ‘lower tier’ would deter them from campaigning, or cause them to change the way they campaign.
• A further 29% said the proposals would “possibly” stop them from campaigning.
• While only a fifth of respondents said it would not deter them.

Issue-based campaigners, who register with the Electoral Commission, find the process extremely burdensome, and have to spend considerable time and resources on compliance. The regulatory burden associated with registration, along with concerns about appearing to be more political than they actually are, puts many issue-based campaigners off activities that could require them to register as third-party campaigners.

How will the changes affect joint campaigning?

When declaring your total spending, you will have to include costs associated with joint campaigning. Joint campaigning is broadly defined as an activity that can “reasonably be regarded as intended to achieve a common purpose”. This could capture a considerable amount of activity undertaken by charities, who often work through coalitions, networks and partnerships to deliver change. What’s more, if a joint campaign spends money on a regulated activity, then all parties involved have to record the entire cost of that activity towards their individual spending totals, regardless of how much each organisation contributed.

This will discourage many organisations from taking part in activities that could be defined as joint campaigning, leading them to withdraw from existing coalitions and partnerships throughout the regulated period. This will be true for both small organisations, who do not have the capacity to cope with the regulatory burden associated with registration, and large multi-mandate organisations, who are members of multiple coalitions working on different issues.

Findings from our recent survey support this, where:

• Almost half of campaigners said the new lower tier would deter them from collaborating with other organisations.
• A further one in four campaigners said the changes could “possibly” deter them from campaigning with others.
• And 23% said it would not deter them from working with other organisations.

How is Bond responding?

We believe that the current legislative framework governing elections doesn’t get the balance right between supporting transparency and ensuring vibrant and inclusive public debate at elections. The Elections Bill is a missed opportunity to make much needed, broader changes to protect freedom of expression, while supporting greater transparency. We are asking the Government to amend the bill so that it addresses these important issues, and more specifically, provides an exemption for registered charities and community interest companies. When the Bill is made law, we will brief our members on the rule changes and work with the Electoral Commission to ensure that their guidance supports charities to continue campaigning.