Shortly before summer recess, the new Elections Bill 2021 was introduced by the Government. Whilst much of the focus on the Bill has been on controversial new voter identification requirements, the Bill also aims to amend and supplement existing law applying to organisations that engage in issue-based campaigning and advocacy work, both in the run up to elections and more broadly throughout their day to day activities.
Key changes include:
- More organisations will have to register with the Electoral Commission when engaging in issue-based campaigning – the Bill introduces a new requirement for registration as a ‘lower-tier’ non-party campaigner, where they incur more than £10,000 of regulated spending in the regulated period (of normally a year) before a general election anywhere across the UK. Currently, organisations can incur double that amount of regulated spending in England (£20,000), and also up to £10,000 in Scotland, Wales and Northern Ireland, before being required to register.
- Restricting overseas organisations’ involvement in elections – The Bill prohibits non-UK based campaigners from incurring regulated spending of more than £700 in relation to a UK election – potentially causing difficulties for some campaigning organisations that do not have an incorporated UK base, such as where they operate through a UK branch of an overseas organisation.
- New transparency rules for digital campaigning materials: A long-trailed expansion of ‘imprint’ rules to capture online and digital campaigning will require paid-for digital material to contain certain transparency information, where it can reasonably be regarded as intended to influence the public to support (or oppose) parties, candidates, political office-holders or the holding of (or any outcome in) a referendum. Registered parties and non-party campaigners (including new lower-tier non-party campaigners) will also be required to include imprints on similar material that is not paid for, including where the material “Wholly or mainly relates to a referendum regulated by election law” (a very broad new category) or can reasonably be regarded as intended to promoting or procuring the success or failure of a petition to recall an MP.
More detail about these proposed changes is provided below. We are concerned that the new lower tier registration threshold will deter more charities and issue-based campaigners from engaging in advocacy work in the run-up to an election, and that widely drawn digital imprint rules could trip up a wide range of organisations which will not be used to dealing with the current rules for printed material – which were themselves poorly understood.
For further information, or to share any concerns who might have with the new rules, please get in touch with Simon Steeden at [email protected]. Please also let us know if you would be interested in joining a webinar or online roundtable to discuss the proposed new rules.
The key changes in more detail:
New lower-tier registration threshold for issue-based campaigning
- Ahead of a number of UK elections (such as General Elections), if individuals or organisations, including charities, engage in particular activities (the ‘activity’ test), which will be made available to the public (the ‘public’ test) and which might reasonably be perceived as intended to influence the electoral success of a party or candidates either negatively or positively (the ‘purpose test’), then the value of those activities could count as regulated electoral expenditure. Organisations can only incur regulated expenditure up to a certain financial threshold before they have to register with the Electoral Commission as an official ‘non-party campaigner’. Registration involves giving details to the Commission about your organisation and its governing body (the exact requirements depend on the organisational type or whether the campaigner is an individual), and broadly only UK-based and registered organisations can register.
- The current position is that organisations can only incur up to £20,000 in England or £10,000 in Northern Ireland, Scotland or Wales of regulated expenditure before they have to register with the Commission to have access to (considerably) higher spending limits (although even registered campaigners cannot incur more than £9,750 in any single constituency). Once registered with the Electoral Commission, organisations have to comply with rules concerning their spending, record keeping and sources of funding. Organisations might decide to avoid registration, so as to avoid the administrative burden registration can create or due to a concern that registration may imply that the organisation is more ‘political’ than is the case.
- However, it may be more difficult for organisations to avoid registration going forward, whilst still undertaking sufficient activity to have impact in promoting an organisation’s purposes or objectives in a key period ahead of an election. This is because the new Bill provides that organisations can no longer incur more than £10,000 without being registered as a ‘lower-tier’ non-party campaigner. Organisations would still have to register as full non-party campaigners if they were to exceed the financial limits for each region of the UK (i.e. £20,000 in England). As the national limits are £10,000 in Northern Ireland, Scotland or Wales it seems that the lower-tier threshold is of relevance only to organisations who will be activities which are UK-wide, or focused in England or a combination of UK nations.
- Lower-tier registration does not give rise to the same electoral finance requirements as full registration. The organisation’s details will be publicly available as a registered campaigner and it will need to, for example, ensure that all donations over £500 in value (including restricted grant funding and non-cash donations) given for the purpose of incurring regulated expenditure are ‘permissible’ under UK election law (broadly, are from UK electors and other UK corporate structures).
Restricting overseas organisations’ involvement in elections
- The current electoral law framework does not expressly prohibit overseas organisations from incurring regulated expenditure ahead of UK elections. It does however prevent those organisations from being able to register as an ‘official’ non-party campaigner so as to access higher spending limits. Previously, overseas organisations, and those ineligible to register as non-party campaigners, might have taken a view that they could incur up to the relevant registration thresholds in regulated expenditure ahead of an election. Some overseas organisations might, for example, operate in the UK but through a ‘branch’ structure rather than with a separate company incorporated in the UK. Those organisations might wish to engage in UK-focused advocacy which might pass the purpose test, but previously could not be able to engage in such activities with a value over £20,000 in England or £10,000 in Scotland, Wales and Northern Ireland.
- However, the new Bill expressly prohibits such organisations from incurring more than £700 of regulated expenditure ahead of a UK election. This may be difficult for organisations that are based overseas but provide commentary, for example, on UK political affairs in pursuit of their mission or objectives, given the breadth of the purpose test (as set out above).
Transparency details on ‘political’ materials
- Currently, election law provides that a limited category of printed campaigning materials must contain certain details about the person or organisation publishing and promoting the material, and the person or body on whose behalf the material is being promoted. This requirement applies regardless of whether the material is published in the run up to an election or not. This is known as an ‘imprint’ and is explained by the Electoral Commission as follows:
For local campaigns, election material is published material such as leaflets and adverts that can be reasonably regarded as intended to promote or procure the election of a candidate at an election.
For general campaigns, election material is published material such as leaflets, adverts and websites that can reasonably be regarded as intended to influence voters to vote for or against:
· one or more political parties
· political parties or candidates that support or do not support particular policies
· other categories of candidates, for example, candidates who went to a state school, or independent candidates (who are not standing in the name of a political party)
- As the requirement arises from laws created before the prevalence of digital campaigning and advocacy, it does not apply to electronic or digital material. In the wake of widespread concern about the influence of digital content in UK elections and politics, the Bill now seeks to introduce a wide requirement for an ‘imprint’ on digital materials, in addition to the requirement set out above for printed materials.
- The Bill provides that:
- Paid-for digital material,including audio-only electronic communications (subject to limited exceptions) must contain an imprint with certain transparency details if the material can be ‘reasonably regarded’ as intended to achieve one or more purposes set out in the legislation, as follows: “influencing the public, or any section of the public, to give support to or withhold support from— (a) a registered party, (b) a candidate or future candidate, (c) an elected office-holder, (d) the holding of a referendum in the United Kingdom or any area in the United Kingdom, or (e) a particular outcome of such a referendum”. This requirement applies whether or not there is an election upcoming and may apply to a very broad range of communications by charities and issue-based campaigners in seeking to advocate for their purposes and objectives.
The Electoral Commission has made calls for this broad requirement to also apply to unpaid content.
- Digital material that is not paid will require an imprint only if it the promoter of the material or the person on behalf of whom it is published has a formal status under election law- i.e. a political party, a registered non-party campaigner (which will include the lower-tier registered campaigners), candidates and future candidates, elected office holders, referendum campaigners or recall petition campaigners, where the material:
(i) Wholly or mainly relates to a referendum regulated by election law (a very broad new category); or
(ii) Can reasonably be regarded as intended to achieve any of the following purposes:
- Promoting or procuring electoral success at a relevant election for one or more parties (including those who hold or advocate or do not advocate particular policies or who otherwise fall within a particular category of such parties) or for candidates or future candidates who hold or advocate or do not advocate particular policies or who otherwise fall within a category of candidates / future candidates);
- Promoting or procuring the election of a particular candidate or particular future candidate at a particular relevant election (whether or not it expressly mentions their name);
- Promoting or procuring the success or failure of a recall petition
There are limited exceptions, including where material might be republished unaltered if the original was compliant with these requirements (e.g. re-tweeting campaign materials by individuals).
For further information, get in touch with Simon Steeden at [email protected].
We’re planning to hold an online roundtable, to allow charities to share thoughts and concerns about the Bill. If you’d like to be invited to the event (date TBC), please register your interest below.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of July 19, 2021.