General Election and legal restrictions

Despite speculation, Theresa May’s announcement today of a General Election to be held on 8 June took most of the country by surprise. Although she will need the support of two-thirds of MPs under the Fixed Term Parliaments Act to push ahead with her plans, the Labour Party’s immediate support makes it likely that she will pass that hurdle without difficulty in a Parliamentary vote tomorrow (Wednesday 19 April). The formal dissolution of Parliament can then be expected on 3 May, 25 working days before the election, in accordance with the requirements of the Fixed Term Parliaments Act.

The unexpected nature of the election campaign will leave many businesses, charities, campaigners and other organisations unprepared to ensure compliance with the range of different rules that might apply to their activities in the run up to the election. In particular, these might include:

• Whether campaigning activity in the run-up to the election will be regulated under the Representation of the People Act 1983 or the Political Parties, Elections and Referendums Act 2000
• Possible pitfalls, including the complex web of rules applying to constituency level campaigning, and the impact of rules applying to coordinated campaigning activity between different organisations
• The particular rules restricting the activities of charities and public bodies in the pre-election period
• Rules applying to political campaigning and advertising under the RPA, making it a criminal offence to make false statements of fact about a candidate’s personal character or conduct.
• The interaction of rules relating to the General Election with those applying to the 4 May local and mayoral elections.

BWB’s Elections, Politics and Campaigning Group is perfectly placed to guide you through that minefield.

Regulated campaigning

Many organisations and individuals will see the election as a chance to push forward their agenda and build relationships with potential future MPs, ministers and parties of government. This might include businesses and trade associations seeking to influence commercial policy of the next government, charities and campaigning organisations seeking to promote their issue-based campaigns and acquire pledges of support from candidates, and individuals or ‘pop-up’ groups campaigning locally or nationally on particular policy issues, with Brexit likely to be central to the agenda.

Under the Representation of the People Act 1983 (the “RPA”), organisations and individuals will need to be mindful of additional rules that govern campaigning for or against candidates in a particular constituency following dissolution of Parliament.
At the same time, rules governing third party campaigning during the regulated period before an election continue to apply, following the changes to the Political Parties, Elections and Referendums Act 2000 (“PPERA”) made in 2014 by the controversial “Lobbying Act”. Under those rules, individuals and organisations are required to register with the Electoral Commission as third party campaigners if they spend more than £20,000 in England or £10,000 in Scotland, Wales or Northern Ireland in the regulated period prior to polling day, where the expenditure can reasonably be regarded as intended to influence the electoral prospects of parties or candidates (“controlled expenditure”).

Once registered with the Electoral Commission, limits apply to the total amount of controlled expenditure that can be incurred by the third party during the regulated period. These limits are £319,800 in England, £55,400 in Scotland, £44,000 in Wales and £30,800 in Northern Ireland.

The ‘regulated period’ under PPERA is generally the period of 365 days before a general election, meaning that it is technically possible for controlled expenditure to have been incurred as early as June 2016, many months before today’s surprise announcement. However, in many cases, it may be appropriate to take the view that spending before today could not reasonably be regarded as intended to influence an election that was not expected to be held until 2020. With less than 8 weeks to go until the election, most organisations will be unlikely to exceed an overall expenditure limit, but should nonetheless ensure they are monitoring controlled expenditure from now until polling day, to ensure that they can evidence any decision not to register with the Electoral Commission (and to submit spending returns if they do decide to register).

Possible pitfalls

The short period before the election may reduce them number of organisations incurring controlled expenditure in excess of a registration threshold, and so reduce the number of organisations being required to register with the Electoral Commission. But care should still be taken around some particular “bear traps”. In particular:

• Constituency spending limits – In addition to the national expenditure limits under PPERA described above, the Lobbying Act introduced a new limit of £9,750 on controlled expenditure which is ‘wholly or substantially confined’ to a particular constituency or constituencies. So, it is possible that where the impact of a campaign is locally focused, the campaigner could find itself in breach of a constituency limit despite not incurring enough controlled expenditure to require registration with the Electoral Commission.
• Joint spending – Where an organisation works in coalition with others, all election expenditure of the coalition will be attributed to all coalition members, meaning each coalition member individually may be under the PPERA spending limits for registration, and yet all coalition members could nonetheless be required to register with the Electoral Commission. So, particular care should be taken in relation to any joint campaigning activity in the run-up to the election.
• Charities – The rules regulating campaigning and political activity by charities become more restrictive during the pre-election period following dissolution of Parliament. The Charity Commission has produced specific guidance for charities that applies during the pre-election period, available here.
• Election hustings events – These events can result in particularly difficult issues for charities and other organisations, depending on the extent to which all candidates or parties are being represented, and the basis on which invitation lists are drawn up.
• Public bodies – During the pre-election period following dissolution of Parliament, public authorities are required to exercise particular caution in relation to decisions that could have a bearing on matters relevant to the election, that involve actions which may have a long-term character or where a newly elected government may be expected to take a different view.
• Political campaigning and advertising – Following dissolution of Parliament, the RPA provides additional protection to politicians, to prevent subversion of the democratic process. It is a criminal offence for anyone, for the purpose of affecting the return of any candidate at an election, to make or publish a false statement of fact about a candidate’s personal character or conduct, unless the person can show they had reasonable grounds for believing and did believe the statement to be true.

Local and mayoral elections

Alongside the new main event, we have ongoing campaigns in relation to forthcoming local elections, including campaigns for the first mayors of six newly created English combined authorities, in Cambridgeshire & Peterborough, Greater Manchester, Liverpool, West Midlands, Tees Valley and West of England regions. Doncaster and North Tyneside councils are also holding elections for directly-elected mayors, as executive leaders of those local authorities.

Many businesses, charities, trade associations and campaigning organisations will be keen to develop relationships with prospective new mayors, in the hope of influencing their local agenda once in office. But it is important to be aware that particular local campaigning rules apply to these elections, under the RPA as modified by the Combined Authorities (Mayoral Elections) Order 2017.

The regulated period for the combined authority mayoral elections begins on the day after the person standing for election officially becomes a candidate (with the earliest possible date being 27 March 2017) and lasts until the election on 4 May 2017, meaning that in most cases we are now within the regulated period.

There is now an open question as to whether these elections will continue to be held on 4 May, or be moved to coincide with the General Election. In any event, organisations may need to consider the interaction of the rules governing these local campaigns with those governing national and constituency level campaigning in relation to the General Election.

BWB’s Elections, Politics and Campaigning Group

BWB’s Electoral and Political Activities Group includes leading public and regulatory, charity, governance, media, dispute resolution and employment lawyers with wide experience of advising political parties and candidates, charities, campaigning organisations, public bodies, trade unions, trade associations and businesses on how electoral law and the pre-election period might affect them. Details of the Group and its experience is available here.

If you have any questions in relation to any of these issues, please let us know. Contact details are available below.

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All content on this page is correct as of April 18, 2017.