Campaigning and political activity

Mills & Reeve’s guide to making the most of the pre-election period.

We really can’t tell you when Rishi is planning to hold the next general election – we have no inside info sadly! However, what we do know is that the run up to a general election holds enormous opportunities for charities to have their policies and objectives integrated into manifestos.

The UK is facing multiple challenges from climate change, the cost-of-living crisis to the impact of wars overseas. Some powerful and effective charity campaigns have already been launched.

At Mills and Reeve we sometimes encounter charity trustees put off campaigning by the perceived complexity of rules and potential risks involved. In an interview in the Guardian Chair of the Charity Commission Orlando Fraser has also criticised the “war on woke” and its chilling effect on trustees’ confidence to speak out following attacks on charities campaigning in areas such as race, immigration and the climate crisis (complaints which have been rebutted by the Charity Commission). “I will robustly defend charities’ right to campaign lawfully, even where such campaigning covers sensitive or politically divisive ground.”

So, safe in the knowledge that the Charity Commission has your back, we hope to guide you through the rules on charity campaigning and political activity to take full advantage of the opportunities offered by the General Election 2024…or 2025, we don’t know.

Why so many rules?

The charity sector is meant to be free from government influence and fully independent. This independence (from government, business and individuals such as MPs) is the reason that the public has confidence in the charity sector. Charities must always act solely in pursuance of their objects, free from the influence of government or other bodies.

When campaigning, and in particular when supporting a particular party’s policy, a charity should stress and make clear its independence both to supporters and to those it is seeking to influence.

The rules we set out below deal with two types of activity:

• Political activity, meaning seeking to influence decisions of public bodies; and
• Campaigning, a lower risk activity seeking to raise awareness and change public behaviour.

These two types of activity are largely dealt with using the same principles in charity law and so for brevity we shall refer to them both as ‘campaigning’.

Where to start?

This is our Mills and Reeve guide to safe charity campaigning in the 2024/5 general election.

Start by checking your constitution!

Unless your charity’s constitution specifically prohibits engaging in political activity – which is extremely rare – you are permitted to campaign. In fact, the Charity Commission encourages it.

What are your objects?

Charities are encouraged to campaign “robustly”, but only in pursuance of their objects. If you keep these in mind, you won’t go far wrong. The Charity Commission says “campaigning and political activity can be legitimate and valuable activities for charities to undertake”.

It is a fundamental of charity law that a charity cannot be set up for political purposes (i.e to support a political party or secure a change in the law) or engage in party political activity. A recent tribunal case confirmed that even where an organisation has wholly charitable objects, where background information shows that it is in fact established to campaign and change the law, building mistrust in public authorities, that organisation cannot be charitable. The aim was to set up a group to challenge Covid 19 measures. 

How should trustees approach the question of campaigning?

Charity Commission guidance CC9 sets out good practice:

• They must be satisfied that the activities are likely to be an effective means or furthering the charity’s purposes; and
• They must be able to justify the resources applied.

A risk register, a campaign business plan, recording of evidence and minutes of relevant meetings are all recommended. The guidance also sets out a checklist for trustees when considering campaigning.

What campaigning can a charity do?

• Campaign in pursuit of their objects, provided this does not become the continuing and sole activity of the charity.
• Focus most or all of its resources on campaigning for a period, as long as this activity does not become the reason for the charity’s existence. The trustees must consider that for the time being the charity’s purposes are most effectively pursued through political activity.
• Campaign for a change in law, policy or decisions, or for existing laws to be observed provided this would support the charity’s objectives.
• Engage with a political party, with caution. Charities should be careful not to engage only with one party, in order to maintain political neutrality. Seek to engage equally with all parties.
• Engage with individual politicians, while remaining politically neutral. The guidance CC9 gives examples of how this should be approached.
• Support specific policies of political parties if they align with the charity’s objects.
• Use emotive or controversial material where this is lawful, factually accurate and justifiable in the context of the campaign.

What campaigning can’t a charity do?

• Support a political party. If a charity endorses a party’s stance on poverty it should not lend its support to all the party’s policies.
• Give financial support, or support in kind, to a political party.
• Give a platform to or engage with only one party or MP or candidate as this would call into question the charity’s neutrality.
• Allow the charity to be used as a vehicle for the expression of personal or party political views of any staff member or trustee. See below.
• Breach a range of criminal and civil laws – for example advertising laws or defamation. More detail can be found in the guidance.

Humanity Torbay

In 2022 the Charity Commission found that Humanity Torbay’s trustees had permitted the charity’s founder and chief executive unfettered access to the charity’s social media pages to express her own political views that did not support her charity’s purposes. She was barred from acting as a charity trustee for 5 years and the charity voluntarily wound itself up. This illustrates the profound impact of inappropriate campaigning.

How to campaign?

The Charity Commission has a few pointers – but obviously this will be entirely up to the charity. The charity may use any reasonable method to campaign so long as it is lawful and an effective use of resources.

• Innovative tech campaigning may require specialist advice about legality, propriety and cost effectiveness.
• Charities’ use of social media should be informed by the Charity Commission guidance Charities and social media.
• Charities are permitted to provide materials to their supporters to send onto MPs or government provided the materials are well-considered and rational.
• Campaign materials can be emotive or controversial, provided they are factually accurate. Trustees must have balanced benefits of greater public understanding against potential reputational risk to the charity.
• The guidance sets out some considerations for charities considering commissioning research, working in coalitions, organising petitions and demonstrations.

What about when an election is called?

Once the election is called there is supplementary guidance called Charities, Elections and Referendums. It goes into further detail about:

• Policies
• Parties
• Publicity
• Candidates
• Facilities

The aim of the guidance is to help charities avoid becoming involved in party politics, even unintentionally. We will cover this in more detail once the election has been called.

Election Law

Charities should also check whether their campaigning is caught by election law. This imposes a regime on certain types of campaigning – which if over a financial limit will involve registration and reporting obligations. These rules apply during an ‘election period’ which is the year preceding a (in this case) general election. Since the latest the UK can expect a general election is 28 January 2025 we are definitely within the election period now, so these rules may apply to your charity.

 Spending on campaign activities is only regulated if it can reasonably be regarded as intended to promote or procure the electoral success of:

• one or more political parties
• political parties or candidates who support or do not support particular policies or
• another particular category of candidates

by influencing voters at an upcoming election to vote in a particular way. The Commission employ a ‘purpose test’ which must involve a ‘call to action’ to voters.

As we have outlined above, charities carefully steering away from any party political campaigning should not come under these rules. However, some charities have been registered in the past. Some useful case studies can be found on the Electoral Commission’s website.

This area is complex and we would recommend seeking advice if you think your charity might be caught by these rules.

Imprints

Under the law, some campaign material must contain details to show who is responsible for the material. This provides transparency for voters, showing who is trying to influence you with campaign material.

If you produce material that relates to an electoral event, or to a party, candidate or elected office-holder, you may need to include an imprint.

Imprints can be required on digital material and printed material. Further information can be found in the guidance from the Electoral Commission Imprints | Electoral Commission