114: Non-party campaigning – a new draft Code of Practice anticipates the forthcoming General Election

A new draft Code of Practice (the Code) has been published by the Secretary of State under the Political Parties, Elections and Referendums Act 2000 (the Act) in time for the period within which expenditure by third party campaigners, prior to the forthcoming General Election, is subject to control.

‘Third party campaigners’ are those individuals and organisations which are not registered political parties but which campaign for or against:

• political parties;
• candidates; or
• issues relevant to the election (and which may be associated with particular parties or candidates) without standing as candidates themselves.

The draft Code was prepared by the Electoral Commission (the Commission) in accordance with the Act, following consultation with interested persons and bodies including the Speaker’s Committee and the Levelling Up, Housing and Communities Committee.

The Code is statutory guidance. Where it stipulates a requirement, that requirement is in primary or secondary legislation.

The Commission must have regard to this Code when exercising its functions under Part VI of the Act, ie when controlling third party campaign expenditure in national election campaigns.

It is important for all those engaged in campaigning activity in the next 12 months. Crucially, it is a defence for a third party campaigner charged with an offence under the Act, where the offence relates to expenditure incurred or treated as incurred by a third party campaigner during a reserved regulated period, to show:

• that the Code was complied with in determining whether the expenditure is controlled expenditure under the Act; and
• that the offence would not have been committed on the basis of the controlled expenditure as determined in accordance with the Code.

Committing an offence under the Act can lead to a fine or prosecution by the third party concerned or the ‘responsible person’ (see below).

So what is regulated?

Broadly speaking, controls are aimed at what third party campaigners spend on the campaign, receive by way of donations and are obliged to report.

The law on spending and donations is engaged when a third party campaigner spends more than £700 on ‘regulated campaign activity’. Individuals and organisations that are not based in the UK or not on the electoral register may not spend more than £700 on regulated campaign activity.

UK-based campaigners intending to spend in excess of £10,000 on such activity are required to notify the Commission. This results in them being listed in the register of notifications. Once on the register they become ‘registered non-party campaigners’ and they must appoint a ‘responsible person’ who is legally responsible for complying with the statutory requirements of the Act.

Regulated campaign activity

Expenditure which takes place in a ‘regulated period’ and meets a ‘purpose test’ is regulated on the following activities:

• press conferences or other media events organised by the campaigner;
• transport related to publicising the campaign;
• production or publication of campaign material which is made available to the public at large;
• canvassing views or seeking information from the public; and
• public rallies or other events.

A ‘regulated period’ in relation to UK General Elections is the 365 day period leading up to and including polling day. The regulated period applies retrospectively and will cover the period before the election is announced.

So the regulated period may well already be running.

The ‘purpose test’ is whether the spending concerned ‘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.

The Commission will have regard to various factors in determining what can ‘reasonably be regarded’ as intended to influence voters. These are:

• whether there is a ‘call to action’;
• the tone of the communication;
• the context and the timing of the event or activity; and
• how a reasonable person would view the activity.

In determining what comprises ‘the public’ in terms of campaign expenditure, the Commission will have regard to different considerations. Canvassing and market research which meets the purpose test and takes place in a regulated period will only be regulated campaign activity if it seeks the views of the general public. Rallies and events in such a period would have to be open for anyone to hear, see or attend, and campaign material will only be regulated if it is made available to the public or any section of the public. Material that is made available to a closed group of members or those who have chosen to receive the information is not regulated.

Reporting obligations

Registered non-party campaigners spending more than £20,000 in England, or £10,000 in Scotland, Wales and Northern Ireland are required to record and report their spending and donations. There are spending limits that restrict the total amount non-party campaigners may spend on regulated campaign activities during a regulated period. They are set out in Schedule 10 of the Act.

Spending up to £250,000

Detailed returns on spending on regulated campaign activity and related donations received must be submitted to the Commission within three months of the end of the relevant regulated period.

Spending above £250,000

The same returns must be made but must be accompanied by an auditor’s report and submitted within six months of the end of the period.

Moreover, now we are towards the end of the parliamentary terms, all registered non-party campaigners meeting the reporting threshold must submit quarterly donation reports to the Commission.

Expenses falling within the regulatory regime are set out in a Schedule of the Act. Annex A to the Code lists examples of the kinds of expenses which would be or would not be regarded as ‘qualifying expenses’, ie controlled expenditure under the Act. Broadly they include expenditure reasonably regarded as intended to promote or procure electoral success at any relevant election as identified above, including:

• the production or publication of material which is made available to the public at large or any section of the public (in whatever form and by whatever means);
• canvassing or market research seeking views or information from members of the public;
• press conferences, or other media events, organised by or on behalf of the third party;
• transport (by any means) of persons to any place or places with a view to obtaining publicity; and
• public rallies or other public events.

As will be appreciated, it is a complex picture, subject to detailed and at times unclear statutory provision. The draft Code is an important tool however, both as guidance and a defence mechanism. Third party campaigners who are engaged in or likely to be engaged in campaigning activity in the next 12 months ahead of the General Election need to understand the regulatory regime and the Code that governs it or risk enforcement by the Commission.

If you have any queries about the information in this blog, please contact David Mundy.