The next Scottish Parliament election is scheduled to be held on 6 May 2021. As with any parliamentary election there will be a plethora of issues that the parties will select as key aspects of their campaign, in seeking to win the electorate's vote. May 2021 is not far away and the various political parties will likely already be considering their respective strategies. Ahead of the election there is an important question for charities to consider: can they be involved in campaigning on political issues?
Are there rules on this?
There are three distinct sets of rules that apply to charities and campaigning on political issues: charity law, electoral law and the lobbying register. The first and third sets of rules having distinct Scottish considerations.
In brief, charities are free to campaign on political matters if:
- it advances the charities charitable purposes;
- the charity’s governing document does not prevent it;
- the charity’s purpose is not to advance a political party; and
- it can be shown that campaigning is in the charity’s best interests.
It is generally accepted – including by the Scottish charity regulator, OSCR - that campaigning on political issues is one way that charities can advance their charitable purposes. Charities do not and should not inhabit some form of political vacuum. Influencing politicians might be central to a charity securing change that furthers its purposes. However it does fall on charity trustees to ensure that any activities meet the guidelines listed above. In addition, trustees should be conscious that involvement in campaigns could impact the charity’s reputation (for better or worse) and that regardless of their involvement; charities should be and be seen to be, independent, of political parties. It is an inappropriate connection to party politics that is likely to create the greatest risks for a charity.
Electoral law, generally, will not, as a matter of course, apply to (Scottish) charities. However if a charity spends (or intends to spend) more than £10,000 on a ‘regulated campaign activity’ in Scotland (there are different thresholds for activities outside of Scotland and charities affected by these rules should be aware of the particular Scottish elements of the rules) during a ‘regulated period’, then it will need to register with the Electoral Commission (the “EC”). There are a lot of components here so it would be better to break these down:
- A ‘regulated campaign activity’ sounds like it could cover a range of things in the context of political campaigns. It will be ‘regulated’ if it meets either the ‘purpose’ or ‘purpose and public’ tests (more below).
- A ‘regulated period’ differs depending on the political activity: general elections have a regulated period of 365 days ending on the day of the election, while other elections have a regulated period of four months also ending on the day of the election.
- The ‘purpose test’ asks whether it is reasonable to believe that an activity is intended to influence voters to vote for / against political parties or categories of candidates and covers various activities e.g. press conferences and transport to publicise a charity’s campaign
- The ‘purpose and public tests’ asks whether the activities are aimed at, seen, heard by or involves the public, or a section of the public. This will catch the production of election material, canvassing / market research and public rallies and events.
The EC published updated guidance in connection with the Lobbying Act (we will return to the Scottish Lobbying Act) making it clear that furthering charitable purposes and following charity law is key for charities in this sphere.
Essentially Scottish charities will always have to comply with Scots charity law (whether they are involved in political campaigns or not). Electoral law will only apply in so far as the charity’s spending on regulated campaign activities exceeds the relevant spending threshold and the purpose / purpose and public tests are met. The latter will be key for charities and charities registered in Scotland will need to adhere to Scottish requirements on political campaigning during election periods or otherwise.
What happens if charities don’t adhere to the rules?
OSCR has responsibility for ensuring compliance with Scots charity law. In the event that a concern is raised that a charity has failed to observe the rules, OSCR is entitled to raise an inquiry into its activities. In addition OSCR is entitled to publish the findings of any inquiry it carries out which could, in the event that the charity is found to have breached charity law, have a significant impact on its reputation.
In addition to the charity law component, the EC is responsible for ensuring compliance by charities with electoral law. It is an offence for a charity to exceed the spending limit and not be registered with the EC, which could result in a significant financial penalty being levied against the charity. This could have a detrimental impact on the charity’s finances and ability to manage it operations.
There is also the reputational issues (which might for example affect donor sentiment) of inappropriately straying into party political territory.
Scottish lobbying register: what is the key message?
We mentioned three sets of rules. The final one is the Scottish lobbying register. This does not (and nor should it) restrict charity’s campaigning and influencing. It does however create certain transparency requirements when there are face-to-face engagements with certain politicians and senior non-politicians within Scottish Government. This Scottish lobbying register rules are separate and different to any wider UK lobbying requirements.
The Lobbying (Scotland) Act 2016 came into force on 12 March 2018 and with it came the lobbying register, with requirements for returns to be made to the Lobbying Registrar on a six monthly basis setting out each separate occasion on which you or your organisation has engaged in “regulated lobbying”. We have previously blogged on this topic and issues for charities- https://brodies.com/blog/charity/charities-and-the-scottish-lobbying-register-yes-cabinet-secretary/. That previous blog includes a link to Brodies wider guidance help on this topic.
Charities that are cross-border charities will need to ensure they follow guidance and law in England and Wales, UK-wide and Scotland. Any decisions about politically-related campaigning as well as internal policies must adhere to the Scottish requirements such as OSCR’s expectations and the Scottish lobbying register rules.