For many organisations, general elections are a chance to push forward their agenda and build relationships with potential future MPs, ministers and parties of government.
This includes charities and campaigning organisations seeking to promote their issue base and acquire pledges of support from candidates; businesses and trade associations seeking to influence commercial policy; and ‘pop-up’ groups of individuals campaigning locally or nationally on particular policy issues.
Whilst this is a period of opportunity, it also carries some legal compliance considerations. For example, some organisations might be restricted in the way they can operate by their internal policies, constitution or legal form. The content of advocacy materials can be regulated by election law and carry other risks like IP and defamation. Employees might want to get involved in their own political activity. Please get in touch if you have queries in these areas, which can all be navigated with the right planning.
In this factsheet, we briefly outline what election law might mean for you and your campaign.
Organisations and individuals that campaign (or are seen to campaign) ahead of an election but are not standing candidates themselves are known as ‘non-party campaigners’. Their activities can be subject to financial restrictions and transparency requirements – particularly during a regulated period. The regulated period is usually 365 days before a general election for ‘general campaigns’ (see below). With a general election likely to be held in the next 12 – 18 months, the regulated period may have already begun.
There are two key sets of rules that might impact on non-party campaigners ahead of a general election:
- General campaigns under the Political Parties, Elections and Referendums Act 2000 (PPERA): these rules apply to campaigns that could be seen to be for or against particular parties or other ‘broad’ categories of candidate, including candidates and parties who support or oppose particular policy issues.
- Local campaigns under the Representation of the People Act 1983 (RPA): these rules apply to individual constituency candidate level campaigns. There can be crossover between the two sets of rules, but it is more likely that most non-party campaigners focussing on general policy asks will fall within the general campaign rules. The local rules are subject to a much lower spending limit and slightly different types of activity will be caught by these rules. We suggest taking advice if you think you might be engaging in local campaigning. The regulated period is much shorter than for general campaigns, broadly covering the ‘short campaign’ from dissolution of Parliament before an election.
In this factsheet, we focus on general campaign rules under PPERA. Note that the law in this area has recently changed and so the information in this factsheet only applies to a general election held after 24 November 2023 – in the unlikely event that an election is held before that date, the rules will be slightly different.
If you are held to be engaging in general campaigning, then you will be subject to financial limits on the value of regulated activity you can undertake in the 365 days before the election, before a system of registration with the Electoral Commission and compliance requirements kick in. After registration, there is a maximum overall spending limit (previously around £390,000 for a UK-wide campaign and from January 2024, the spending limit will be substantively increased to just over £700,000). Only individuals and organisations with a sufficient UK connection can register with the Commission.
What activity counts towards these financial limits?
Often referred to as the ‘purpose test’, election law regulates spending on most activities which ‘can reasonably be regarded as intended to promote or procure electoral success at any relevant election’ for:
- one or more particular political parties;
- one or more political parties which advocate (or do not advocate) particular policies, or which otherwise fall within a particular category of parties; or
- candidates who hold (or do not hold) particular opinions or who advocate (or do not advocate) particular policies, or who otherwise fall within a particular category of candidates.
It is not necessary to name a party or type of candidate in your campaign materials – advocacy material could meet the purpose test if it is positive or negative about a policy that is closely connected with a particular political party, close to the election, for example, in such a way that a reasonable person might think you are really calling for the public to vote for or against that party.
There are some exceptions, but most everyday campaigning techniques and associated expenses will be caught if they meet this test, unless they are not accessible to the public.
We call this regulated activity.
What are the financial limits?
If you have a sufficient UK connection, you can spend up to £10,000 on regulated activity ahead of a general election in the UK. You then must make a ‘notification’ to the Electoral Commission to register with them to spend more than this.
When we talk about what you can ‘spend’, this really means the maximum value of regulated activities you can undertake – what you spend will not always be the value of the activity that counts towards your limit (e.g. you might think you are not spending anything on an unpromoted tweet, but actually there will generally be at least a small amount of staff time which you would need to value and count towards the limit).
After registration, you can usually spend up to £390,000 on UK-wide campaigning in the regulated period (from January 2024 this limit will be increased to over £700,000), but you will also need to comply with controls on internal financial authorisations, payments and record keeping and reporting on your donations and spending. There are special rules about the way in which you have to value activities and apportion their cost between constituencies of the UK (and there are further limits for regulated activity which has an impact in only some constituencies and not others, which we do not cover in this note). You can also choose to notify the Commission that you will not spend more than £20,000 in England or £10,000 in Scotland, Wales or Northern Ireland on regulated activity – if you do this then you will not have to do any reporting and will have a lot less internal compliance requirements, but you will need to ensure that you do not spend more than those lower amounts without updating your registration with the Commission first.
Rules about donations are complex and catch a variety of situations, including in kind donations (for example, use of an office space for less than market value) – if you have registered with the Electoral Commission, donations given towards your regulated activity with a value over £500 must come from ‘permissible donors’ (broadly individuals or organisations with a sufficient UK connection). It is possible that grants given for specific outcomes or purposes could fall within this regime. Donations are also reportable over certain thresholds throughout the regulated period and after it has finished.
What if I am an overseas organisation?
Overseas organisations can no longer incur regulated expenditure ahead of a general election – this is subject to a de minimis exception of £700 – clearly, across a 365-day regulated period, this is an extremely small amount of regulated activity. Overseas organisations may wish to consider how this could impact on any UK policy work or campaigning.
Working in coalitions
It is important to be aware that if you work on regulated activity in coalition with others, to a common ‘plan or arrangement’, then all expenditure incurred under that common plan could be attributed to all coalition members. Even if each coalition member is individually under the spending limits for registration or notification, all coalition members could be required to notify or register with the Electoral Commission if the joint spend exceeds the relevant spending threshold. This can catch organisations out.
Watch out for company law
Most companies will need to have passed a company law resolution to be able to make political donations or incur political expenditure, such as spending regulated by election law as discussed here.
From November 2023, new expanded transparency requirements apply under election law to many digital campaign materials (previously, similar rules only applied to printed material). These rules require transparency information, known as an ‘imprint’, to be included in the campaign material – broadly a requirement to identify yourself and anyone else responsible for publishing and promoting the material.
Bates Wells can help you to navigate these rules and maximise the impact of your campaign activity ahead of an election. Please contact Jess Collings for information.
The Electoral Commission also maintains helpful guidance on the rules (due to be updated ahead of the next election).
Watch out for the Commission’s new code of practice for non-party campaigners, expected to come into legal force soon – it will contain further explanation of the rules and the Commission’s regulatory interpretation of how the rules apply to non-party campaigners.