In our post Blogging, campaigning and the General Election we indicated that by the end of 2014 a handful of secular charities had decided to register under the provisions of the Transparency of Lobbying, (etc) Act 2014¸ in addition to two religious ones: The Salvation Army and Britain Yearly Meeting of the Religious Society of Friends (but see Comments, below). We also suggested that more might possibly follow suit since the obligation to register within the regulated period only ends on Thursday 7 May 2015, the day of the general election.

On 23 January, the Electoral Commission circulated its 13^th update on the rules on non-party campaigning which provided a reminder about pre-poll reporting and on record keeping. Although election day marks the end of the regulated period, this is subject to the caveat highlighted in the Electoral Commission Guidance Registering as a non-party campaigner which states [page 5]:

“If you are running a ‘general’ campaign … and you spend or plan to spend more than £20,000 in England or £10,000 in any of Scotland, Wales or Northern Ireland on ‘regulated campaign activity’ … during a regulated period, you must register … as a ‘registered non-party campaigner’.

You can register … at any time before or during a regulated period, but you must register … before you spend more than these amounts on regulated campaign activity during a regulated period.”

Likewise, there are requirements relating to the reporting of donations received during the regulated period, and these are summarized in the Commission’s guidance on pre-poll reporting, below. In view of the demands of pre-poll reporting and the penalties associated with registration and reporting, the timing of a decision to register as a non-party campaigner is of substantial importance to a body falling within the regulations. This post provides a brief recap of the criteria for registering as a non-party campaigner, and then considers the requirements imposed on registered campaigners by pre-poll reporting.

Registration as non-party campaigner

An overview of these requirements is given in the Electoral Commission’s non-statutory guidance: Introduction to non-party campaigning; Overview of regulated non-party campaigning and Charities and Campaigning. Non-party campaigners are individuals or organisations that campaign in the run-up to elections, but are not standing as political parties or candidates. The rules cover spending on certain activities that can reasonably be seen as intended to influence voters to vote for or against political parties or categories of candidates, including political parties or candidates who support or do not support particular policies or issues.

Individuals or organizations who do not register, or are not eligible to register as non-party campaigners[1], are not permitted to spend more than £20,000 in England or £10,000 in any of Scotland, Wales and Northern Ireland during a regulated period on regulated campaign activity. However, for an eligible organization to fall within the regulations, it must satisfy both the “public test” and the “purpose test”.

• the “purpose test” includes activities that can reasonably be seen as intended to influence voters to vote for or against political parties or categories of candidates, including political parties or candidates who support or do not support particular policies or issues. A definition of the test and an example of its application is given on pages 5 & 6 of the Commission’ guidance Overview of regulated non-party campaigning, (“the Overview”);
• the “public test” relates to activities such as: producing or publishing election material (such as leaflets, adverts and websites) to the public; canvassing and market research (which can include polling) members of the public; public rallies and public events; press conferences or other media events; and transport in connection with publicising your campaign (including battle-buses). The Overview covers this on pages 7 & 8.

Regulated campaign activities

To fall with the scope of regulated campaign activities it is necessary to satisfy both “the public test” and the “purpose test”; and our earlier post indicated that that can encompass website content, including blogs; by their nature, website content, blogs and social media communications meet the “public test” per se, and will also meet the “purpose test” if their content can reasonably be regarded as intended to influence voters and they are advertised (or otherwise promoted) to the public in connection with an organization’s campaign.

Pages 9 to 15 of the Overview gives examples of what counts as regulated campaign activity: election material; canvassing or market research; press conferences and media events; transport in connection with publicising a campaign, as well as what is not included in campaign spending.

Pages 16 to 19 of the Overview provides guidance on the application of the purpose test to different types of campaigns: campaigning on policies or issues; policies that a person or organization have been campaigning on that are later adopted by a political party; campaigning for or against government legislation; and providing information to voters.

Pre-Poll Reporting

For campaigning in the run-up to a UK Parliamentary general election, donations received over a certain value must be reported before the date of the poll; this is referred to as “pre-poll reporting”. Registered non-party campaigner must report all donations received over a certain value during the regulated period. Bodies which register after the regulated period must report donations from that point onwards. Once an organization has registered as a non-party campaigner, it must comply with the rules on donations and spending in the run-up to certain elections. Donations after each election must also be reported as part of the spending return, and these reports are published on the Electoral Commission web site.

The Commission’s Update reminds registered campaigners that their first pre-poll quarterly report was due on 17 January and the next will be on 17 April 2015. More detailed information is contained its guidance, UK Parliamentary general election 2015: Pre-poll reporting for non-party campaigners guidance, (“the Guidance”), and the associated calendar for registered campaigners. There are two stages of pre-poll reporting for non-party campaigners: from the start of the regulated period (19 September 2014) to the dissolution of Parliament, (assumed to be 30 March 2015) reporting returns must be made for each quarter; from the dissolution of Parliament to Election Day, (7 May), reporting returns are required weekly. The timetable for these is as follows:

These quarterly reports must be submitted within 30 days of the end of each quarter and the following weekly reports within 7 days of the end of each weekly period.

Pages 10 to 13 of the Guidance describe the information which is to be submitted in pre-polling reports; organizations may be liable for a penalty if either is not submitted on time. Even if donations have been reported in pre-poll reports, these must also be included in the spending return after the election (together with regulated campaign spending).

Comment

The decision on whether to register as a non-party campaigner must take a number of issues into consideration, particularly if an organization is unsure whether it will fall within the regulations. The circumstances of each potential non-party campaigner will be different and it may be appropriate to seek legal advice.

Britain Yearly Meeting of the Religious Society of Friends has registered with the Electoral Commission and its web page General Election 2015: Guidance, resources and information provides readers with information which will help them decide which political issues are most important to them and how to use the general election as a chance to engage with candidates and others in their community.

A different decision appears to have been taken by the Catholic Trust for England and Wales (the legal entity for the Catholic Bishops’ Conference). We had originally been given to understand that it also intended to register; but it appears that, after seeking legal advice, the CBCEW concluded that it did not need to do; our previous post has been updated accordingly.

The Electoral Commission’s next campaigner update is scheduled to be published on 19 February 2015. Anyone wishing to be included in the circulation of the update list can sign up by calling 0207 271 0616 or complete an on-line form.

[1] Only the following can register with the Electoral Commission as a registered non-party campaigner: an individual registered on a UK electoral register or resident in the UK; a UK registered political party (including ‘minor’ parties); a UK registered company which is incorporated in the EU and carries on business in the UK; a UK registered trade union; a UK registered building society; a UK registered Limited Liability partnership which carries on business in the UK; a UK registered friendly, industrial or provident society; a UK based unincorporated association that carries on the majority of its business or other activities in the UK; a body incorporated by Royal Charter; a UK charitable incorporated organisation; a Scottish partnership which carries on business in the UK.