In spite of myths to the contrary, the vast majority of charities can campaign and engage in policy advocacy in the run up to elections, making the most of the opportunity that a pre-election period presents for furthering a charity’s purposes through policy and political work.
Provided that your governing document does not expressly restrict your charity from engaging in political activity (this is rare, but may be relevant in some cases, such as the terms of some charitable trusts), then charities can engage in advocacy and campaigning – your charity’s trustees just need to be aware of a few key limitations and regulatory regimes to navigate.
Political purposes versus political activity / campaigning
A charity cannot have a political purpose and can never engage in party political activity (supporting or opposing a candidate or party). But charities can engage in political activity in support of their charitable purposes, provided the activity is (i) not party political and (ii) does not become such a significant part of what the charity does that it becomes an aim of the charity in its own right. The Commission recognises that “campaigning, advocacy and political activity are all legitimate and valuable activities for charities to undertake”.
Understand and link campaigning to your charitable purposes
In general, the charity will need to ensure that it follows appropriate approval processes in deciding to pursue any campaign and that (in particular) its trustees are satisfied that any campaigning activity is in support of the charity’s objects, on the basis of a credible evidence base, and represents a reasonable commitment of charitable resources taking account of the anticipated charitable impact. This decision-making process should be documented. A charity should have systems in place to ensure that campaign activity is appropriately authorised, managed and reviewed.
Charity Commission guidance on campaigning, and supplementary guidance ahead of elections
Trustees need to be aware of the Charity Commission’s guidance on campaigning and political activity, CC9, and its supplementary guidance that applies ahead of elections (calling for extra caution and explaining how the Commission considers charities should navigate key electoral situations).
Take a look at the first factsheet in our Election ’24 series for an overview of election law and how it can apply to individuals and organisations campaigning on issues and policies in the run up to an election. Ahead of a general election, the most relevant rules for charities can be found under what is often called ‘the Lobbying Act’ (actually the Political Parties, Elections and Referendums Act 2000, recently amended by the Elections Act 2022).
It is not wrong or impermissible for a charity to undertake campaigning regulated by the Lobbying Act (provided they are not acting party politically), but it is important that charities are aware of the rules and the system of registration, administration and reporting that the regime can give rise to. It is particularly important to understand the ‘purpose test’ – the test for when an activity may be regulated by election law and count towards an organisation’s spending limit.
Content specific law and regulation
Sometimes the content of a campaign will attract regulation, such as intellectual property and copyright law (when using third party IP and images), compliance with advertising and fundraising law, and defamation law. Election law may also require transparency details to be included on certain digital and hard copy campaign materials, referred to as “imprints”. The imprint rules were extended to digital materials by the Elections Act 2022.
Social media can be a particular risk area ahead of a general election – both in terms of the possibility that social media posts could be regulated activity under election law, and risks of inadvertent perceptions of party political activity or bias. For example, through retweets of party or candidate content. There are also reputational risks where employees’ personal social media use may be attributed to the charity. The Commission has recently consulted on new draft social media guidance which speaks to some of these risks and encourages use of a social media policy (which should also cover the controls the charity has in place to manage political activity and reputational risk). It can be helpful to provide guidance and training to staff and trustees in relation to how they use social media – not to restrict them from expressing any particular viewpoint, but to help them protect their own interests and (as far as is reasonable) those of the charity when expressing themselves. This has of course become an essential life skill for all of us.
Charities should be aware that when engaging in direct insider lobbying activities (i.e. advocating directly to officials within government or other public bodies), there may be transparency or reporting requirements. For example, where an organisation or individual, in the course of a business and in return for payment, makes communications on behalf of another person to government ministers or senior civil servants (permanent secretaries or equivalents), they must be registered with the Registrar of Consultant Lobbyists before making the communication (unless an exception applies). Charities that lobby using in-house resources are unlikely to come up against this regime unless they use consultants or receive very specifically restricted grant funding in relation to the lobbying activity in question.
Charities should check that funds and resources they may use for advocacy activities are not subject to relevant restrictions. For example, terms of central government grant funding may restrict use of those funds in relation to lobbying and political activity. In addition, local government law prohibits local authorities and some other associated public bodies from giving publicity to a political party or publishing material that appears to be designed to influence public support for or against a political party. Authorities that are subject to this restriction must ensure that they do not give assistance to an organisation to carry out activity which it would itself be prohibited from undertaking under that provision. This can have a consequential effect on charities that receive funding or assistance from such an authority (for example, in holding or organising a joint event or initiative).
If your charity is a company, do also keep an eye out for the company law authorisation discussed in our factsheet on How election law might affect your organisation.
With sufficient consideration and planning, these risk areas should be manageable for most charities and their trustees, allowing them to be confident in continuing to campaign and advocate in pursuit of their charitable purposes.