The cost of speaking out

There has been an onslaught against campaigning charities by politicians, including Charles Elphicke, who argues that increasingly political campaigns by charities are ‘undermining’ their independence.

Criticism of charities which campaign to further charitable aims, instead of restricting themselves to the provision of services to beneficiaries, seems to have the sector in revolt. Sir Stephen Bubb, chief executive of the Association of Chief Executives of Voluntary Organisations, suggests those seeking to undermine robust charitable campaigning ‘ought to be ashamed’.

Criticism of government policy and rhetoric in this area has united otherwise unlikely bedfellows. The Countryside Alliance has expressed concern about the new rules on pre-election spending by non-parties introduced by the controversial Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014, which amends the pre-existing rules contained in the Political Parties, Elections and Referendums Act 2000 (PPERA). At the same time, poverty relief charities such as Save the Children have been forced to defend themselves against unfounded accusations of left-wing bias.

Meanwhile, other policy proposals have been criticised for their impact on campaigning charities, such as proposals to restrict the ability of groups to bring judicial reviews, and unclear plans for charities to disclose their spending on ‘campaigns’, without clarity about whether this only covers political campaigns or extends to fundraising and general awareness-raising campaigns. Many campaigning charities feel that heated political rhetoric is beginning to result in real detriment to their charitable activity.

There is no better example than the amended PPERA rules introduced by the Lobbying Act, which regulate ‘controlled expenditure’ by non-party campaigning organisations during a regulated period running from 19 September until the election in May 2015. Controlled expenditure covers spending reasonably regarded as intended to promote or procure the electoral prospects of parties or candidates, including candidates united by their support for particular policies.

Charities must be politically independent and are prohibited by charity law from being party political. But the test under PPERA is objective, meaning that if a reasonable person might consider an activity to be partly intended to support the electoral prospects of candidates favouring a charity’s policy, expenditure on that activity could be regulated. This was already the case under PPERA, but the Lobbying Act substantially extends regulated activities to include public events, transport, market research and associated staff costs. The result is that many more charities may now be forced to register with the Electoral Commission, potentially being misinterpreted as suggesting they are campaigning in a politically partisan way.

Few would disagree that a healthy democracy needs restrictions on political expenditure by non-party organisations. Most would support the principle of public transparency around the financial support parties and candidates receive from third parties in the run-up to election.

But existing rules on non-party expenditure were already contained in PPERA, before the Lobbying Act amended and widely expanded their scope. There is little or no evidence that the existing rules were not sufficiently robust. The extent and uncertainty of the new rules have been criticised for both the administrative burden they place on charities and their potential impact on the right to freedom of speech, which could be tested in any enforcement action.  

The next election will be bitterly contested and all sides are likely to lash out at organisations which seem capable of threatening their prospects. The charity sector is an obvious target, which is precisely why any regulation of the campaigning activities of charities would preferably have taken place in less politically charged times.

Simon Steeden is a partner at Bates Wells Braithwaite