ELECTION 2017: Why charities should be allowed to campaign freely at election time

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Everybody was caught off guard when Theresa May announced Britain would be heading to the polls on June 8. But charities were more surprised than most by the news – which had an immediate impact on their day-to-day campaigning operations.

Under special election-time rules, charities are legally restrained in their campaigning missions. The law restricts campaigning on policy platforms that are intended to procure the electoral success of a particular party or candidate.

For example, as the Conservative manifesto proposed giving MPs a free vote on the legalisation of fox hunting, animal welfare organisations will have to proceed very carefully before speaking out. Opposition to the change could easily be interpreted as favouring one party over another.

If charities do want to campaign on policy platforms associated with political parties there are particular election-time rules about how much money they can spend. If they intend to spend more than £20,000 during a campaign, they must register. For such campaigns in Wales, Scotland and Northern Ireland, the threshold is £10,000. Total expenditure is then capped at £319,800 or £9,750 in any given constituency.

Snap election causes headache

The ordinary period that this covers before a general election is 365 days – a very long time. But because we are in a snap election, this period is treated retrospectively, which has placed an extra and surprising burden upon campaigning charities. This means charities must now unexpectedly account for all of their expenditure over the past year which might reasonably be regarded as intended to procure electoral success.

As the current rules were introduced in 2014, and this is the first snap election since then, this is the first time this retrospective rule has been used. In light of this, the Electoral Commission has promised to take a “pragmatic and proportionate response” to the issue.

Still, the demand from the Electoral Commission to register expenditure over £20,000 retrospectively will have come as a surprise to charities. And refusal to comply with the rules carries very serious sanctions. In April, Greenpeace was fined £30,000 by the Electoral Commission for refusing to register during the 2015 election campaign – even though the commission estimated the charity had spent over £100,000.

Taking a coastal boat tour, Greenpeace activists had visited communities around the UK, deliberating targeting political candidates and attempting to get them to sign up and support sustainable fishing.

Ban on direct party-political support

Charities are also subject to a long-standing year-round ban on direct party political support. They cannot put up banners telling people how to vote, nor can they knock on doors and promote a particular party. This stems from the case of McGovern v Attorney General in the 1980s, which declared the campaigning activities of Amnesty International to be outside the scope of acceptable legal charitable activity.

In the case, the judge also ruled unequivocally that charities are also subject to a ban on party-political support. The ban applies at all times, but its effect is inevitably felt most keenly ahead of an election. It also extends to all places of worship which are classed as charities under the law.

It’s up to the Charity Commission, rather than the Electoral Commission to enforce these ordinary rules against direct party political support. Its regulatory approach was put to the test during the 2015 election when the dome of the Shacklewell Lane Mosque, a charity, was found unlawfully daubed with the name of a candidate running against then-UKIP leader Nigel Farage. The commission responded in a carefully measured way, without sanctions. They ensured the trustees were aware of the law and paid a site visit to ensure the charity was properly run.

Clearly, not all charities will intend to spend over £20,000 and it is important to note that the Charity Commission actually encourages organisations to speak out so long as they stay within the rules. But as my colleague Debra Morris at the University of Liverpool has noted, the overall impact of this complex regulatory landscape might still be to deter charities from their campaigning mission.

Is this justified?

In my view, there are two possible justifications for regulating election-time campaigning. The first is based around concerns about keeping charities above the political fray. If charities are seen to take sides on weighty political issues, some members of the public will inevitably find it distasteful, which might damage the “charity brand”.

But while this concern might justify the ban on party-political support, wider-ranging restrictions on policy campaigning throw the baby out with the bathwater. Charity is inherently linked with policy. It is impossible to think of a charitable purpose that does not have at least a policy tinge and restrictions on policy campaigning misunderstand that part of their nature.

A second possible justification for limiting election-time campaigning flows from the relationship between charity and the regulatory state. The government now delivers a great many welfare services through charities. Just as civil servants are subject to purdah at election time, it might be said that charities should also maintain a hushed neutrality.

But not all social welfare organisations – such as the RNLI – receive government funds. And even in the case of those organisations which do receive taxpayers’ money, I hope that the relationship between the sector and the state amounts to something more than government purchasing a second civil service on the cheap. Government authorities should be prepared to fund independent, opposing voices.

Moves for change

There are some tepid signs that reforms might be coming. In a 2016 review, Lord Hodgson of Astley Abbotts recommended that only campaign activities deliberately intended to impact upon the ballot box should be controlled at election time. A report published by the House of Lords in March 2017 also adopted this view.

Such cautious steps do not grasp the nettle. A bolder path would be to accept that all charity is straightforwardly and unambiguously political. Charities are mostly run by people motivated to change the world. They have political campaigning missions and it will benefit everyone if they can speak out freely.

John Picton is Lecturer in Charity Law at University of Liverpool

A version of this article originally appeared on theconversation.com