Following Theresa May’s request for a further extension of Article 50, and an ever shifting timetable for the UK’s exit from the EU, it is now very possible that the UK will participate in the European Parliamentary elections in May of this year.
Historically, the European Parliamentary elections have been relatively low profile, with low turnouts and low public engagement. But that position may change in 2019, should the UK participate in the elections. Many organisations will use the opportunity as a platform to promote their position on Brexit, or to express their discontent with mainstream political parties. Whilst that may provide a wealth of opportunity for charities and issue-based campaigners to get their voices heard, it also brings with it a great deal of potential complexity.
If the UK does participate in the European elections, there will be a retrospective regulated period in relation to any spending by individuals and organisations which could reasonably be regarded as intended to influence voters in relation to the election (under the Political Parties, Elections and Referendums Act 2000, often described informally as the ‘Lobbying Act’). That retrospective regulated period would stretch back to 23 January 2019 (with polling day for the EPEs in the UK now set to be 23 May).
During the regulated period a detailed framework of rules applies to ‘non-party campaigners’ - i.e. organisations and individuals who are not standing for office or putting up candidates, but may be campaigning on issues. In particular, those rules include limits on how much can be spent on most public-facing activities which can “reasonably be regarded as intended to influence voters to vote for or against political parties or categories of candidates, including political parties or categories of candidates who support or do not support particular policies or issues” (known as the purpose test):
- For individuals and organisations which register with the Electoral Commission (which regulates general campaigning ahead of most elections), they will be able to spend just under £200,000 on UK-wide campaign which meets the purpose test ahead of the European elections;
- For those who do not or cannot register with the Electoral Commission (broadly only UK based organisations and individuals on a UK electoral register can do so), they will be able to spend just £20,000 across England and £10,000 across Scotland, and Wales; and
- Due to one of the many oddities of election law, the regulated spending limit in Northern Ireland is lower for registered campaigners than for unregistered campaigners – it will be £6,750 for a registered campaigner and £10,000 for an unregistered campaigner.
In relation to the European elections, examples of regulated spending might include organisations supporting candidates who support a ‘Soft Brexit’, revocation of Article 50 or a ‘No Deal Brexit’:
Registered campaigners will need to comply with various transparency and reporting requirements, such as rules around how funds for campaign activity can be sourced (e.g. receipt of donations) ensuring regulated spending is authorised by a designated individual, retaining invoices for regulated spending over £200 and submitting a detailed return to the Electoral Commission after the election.
As with the snap election in 2017, many organisations may be concerned that work they have undertaken since the beginning of the regulated period in January may now become retrospectively regulated. Our view is that in the majority of cases spending prior to the extension of Article 50 beyond ‘exit day’ is unlikely to be regulated, as the UK was not supposed to be taking part in the European elections, and as such campaigners generally could not be reasonably regarded as intended to influence an election to a body of which we are no longer expected to be a member.
In addition, charity law restricts political activity throughout a charity’s life, and calls for additional care ahead of elections. The Charity Commission has not yet commented on charity activity ahead of the European elections, but its generic guidance for charities ahead of elections and referendums is available here.
A series of local elections will take place across the UK on 2 May 2019. Most local elections are not regulated by PPERA, but are instead regulated by a different framework. These rules are complex, particularly in terms of the amount of expenditure that can be incurred on regulated campaigning. If you are going to be campaigning at a local level in a way that may influence voters then you should take further advice on this raft of rules.
Helpfully, the local rules have a narrower test for regulated expenditure, generally only catching activities which are intended to influence local elections. However, even though PPERA does not regulate local elections, it provides that activities which could be reasonably regarded as intended to influence voters in relation to these elections will count towards a campaigner’s spending limit for a general election (and also for the European elections).
Possible general election
The regulated period for a General Election will be a retrospective period of one year before the election. Again, we would generally expect that spending incurred before an election was expected is unlikely to be regulated. However, regulated spending in relation to the local or European elections will count towards non-party campaigners’ regulated spending for a General Election, if the regulated periods for those elections overlap. Campaigners should therefore be careful to take account of any regulated spending they do incur in relation to the local or European elections, as this could eat up part of their spending limits for any General Election that might be called in the next twelve months.
If you have any questions on any of these issues, please feel free to contact Simon Steeden, Partner and Joint Head of Politics, Elections and Campaigning, at firstname.lastname@example.org, or your usual Bates Wells contact.
Posted on 09/04/2019 in Legal UpdatesBack to Knowledge