On 14 July, almost six months after the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 became law, the Electoral Commission published 300 pages of guidance on how to comply with it.
There is widespread agreement that the commission was given a very tough job in interpreting the law, but the general – although not universal – view in the charity sector is that the guidance is simultaneously unclear, complex and lacking in detail.
How then can charities avoid the civil or possibly criminal penalties resulting from non-compliance? Alison Talbot, a partner at the law firm Blake Morgan, suggests looking at Charity Commission guidance before that of the Electoral Commission.
"Charities have to be satisfied that what they do is within charity law, so I would direct them toward the commission's generic guidance and its updated Charities, Elections and Referendums guidance," she says. "I think that would be a better first port of call."
The fundamental question the act poses to charities is whether they need to register with the Electoral Commission as non-party campaigners. The answer depends on whether they spend more than a certain amount of money on qualifying public activities that could be reasonably regarded as intended to influence voters.
Many people in the sector say charities would prefer not to register. Rosamund McCarthy, a partner at Bates Wells Braithwaite, agrees: "Most charities are not saying 'tell me, Rosamund, how can I register?'," she says. "Nearly everyone I speak to says they don't want to."
Elizabeth Chamberlain, policy manager at the National Council for Voluntary Organisations, detects the same preference. She says that charities are generally less concerned about the possibility of breaking the rules than the possible reputational impact of registering. "Charities feel that if they get to the point of having to register, they'll be facing questions from the public," she says.
Chamberlain says that charities must keep in mind the fundamentals of charity law and their own charitable objects. "Stick to your regular campaigning activity in pursuit of your charitable objects; do not suddenly start a whole new campaign in the regulated period," she says. "Ministers have been clear that charities that campaigned long term on an issue should not be affected." Political neutrality is key to charity law, Chamberlain says, and charities should be careful to adopt a politically neutral tone, lest they be seen as trying to procure electoral success.
Private or public?
The law's second major test is whether activities are directed at the public. Charities must be aware of the definition of "public", and the distinction between private and supporter communications, Talbot says.
"There is a view that Twitter, LinkedIn and Facebook are aimed at supporters, but that is not the case – the guidance says these are communication with the public," she says. These concepts should be understood at all levels of a charity. "Awareness should not be only at trustee level," she says.
McCarthy says that areas of particular uncertainty in the guidance include the constituency spending limit, the way in which campaigning coalitions are treated and what happens if a particular party adopts a policy that you have championed. "According to the Electoral Commission, the fact that a political party subsequently takes up an issue should mean that it remains unregulated, unless you alter or increase your activity," she says. "However, it is unclear what 'alter or increase' means – does that mean it would be difficult to have any type of reactive strategy?"
McCarthy's firm is one of several organisations – others include the NCVO, the charity leaders group Acevo and the online campaigns platform 38 Degrees – to publicly ask the commission to change its guidance.
A spokesman for the commission says that it has received "largely positive feedback" on its guidance, but acknowledges that some organisations have asked for more detail, including on campaigns that are adopted. "We always said we would produce more factsheets after publication of our guidance if we got a number of enquiries on a topic, and that is what we are doing," he says.
Such uncertainties have silenced some charities, says Chris Priestley, a partner at the law firm Withers. "Lots of my clients are downing tools," he says. "They have taken the view that with the administrative burden of trying to track spend, and the fear of being on the wrong side of the law, the simplest thing is not to campaign."
Others have decided that registering is the way forward. Jessica Metheringham, parliamentary engagement officer at the religious charity Quakers in Britain, says her organisation is likely to register, although it considers the law "unworkable and unenforceable". She also questions the guidance's helpfulness. "The concept of 'members of the public' simply isn't appropriate for a faith organisation," she says.
Dominic Goggins, head of government relations at the Catholic development charity Cafod, says that although the act does not in theory affect the charity, it still entails extra legwork. "We will have to put additional resources into ensuring maximum vigilance around the legislation, and have established a new working group that will report to board level," he says.
Jude Doherty, a policy coordinator at the Directory of Social Change, a charity that provides training and support for the sector, says that, like Cafod, it will not register with the commission. "Hopefully, our example is useful to smaller charities that might be unsure whether they need to," he says.
The DSC has produced a flowchart to help charities decide whether or not to register, accompanied by a disclaimer that it does not constitute legal advice. "Although charities aren't stopped from saying what they want, the trade-off is trudging through 326 pages of guidance notes," says Doherty.
"The new rules are a headache, but you should not let them stop you speaking out."