Businesses Beware: Don’t get caught by new Electoral Commission rules on ‘Non-Party Campaigning’

With less than six months to go to one of the most uncertain general elections in decades, there is much at stake for the UK economy and business landscape. Many businesses and organisations will, naturally, want to comment on what they view as the important political and public policy issues – whether they concern taxation, public spending, red tape, infrastructure investment, immigration, our relationship with the EU or anything else that matters to them and their commercial and organisational interests. Businesses have always done this – after all, as the main employers, investors and engines for growth in the UK economy, if they don’t speak out about their concerns and interests, who will?

The difference this time round, compared with previous elections, is that there is new legislation in place under the Transparency of Lobbying, Non Party Campaigning and Trade Union Administration Act 2014. This legislation places new rules, overseen by the Electoral Commission, that govern people and organisations who campaign in the run up to elections but are not standing as a political party or candidate. These people and organisations are defined as “non-party campaigners”.

During the lead up period to the Election (19 September 2014 and 7 May 2015), an organisation’s spending on campaigning will need to be accounted for and capped by the Electoral Commission. This cap will depend on whether an organisation is a ‘registered campaigner’ or an ‘unregistered campaigner’. A registered campaigner is allowed to spend more money on campaigning than an unregistered campaigner, but must comply with the Electoral Commission’s reporting requirements. This can impact on an organisation’s own reporting requirements, particularly if they answer to shareholders or members.

What’s the big issue I hear you ask? Some would argue that businesses should be fully prepared for these additional administrative and regulatory burdens if they are prepared to make political statements and publicly campaign ahead of the Election. The issue is, however, that are a number of grey areas in the Electoral Commission’s guidance, which may result in businesses being unwittingly included within the scope of the new regulations, even if they have not consciously said anything party political. Organisations who are normally careful not to be party political in their public statements and corporate communications, can find themselves caught by these new rules if, for instance, their public positions on key policy issues closely mirror a particular political party’s manifesto pledge or known policy position, thereby implicitly setting out a party political position.

This is a new and confusing problem for many businesses (not to mention corporate communications professionals). It does mean that businesses should be careful when conducting what is termed ‘regulated campaign activity’, which includes the publication of publicly available materials, press conferences, conducting research, public events and statements on social media. On these activities, the Electoral Commission will conduct two tests – a ‘purpose test’ and a ‘public test’ – to decide whether an organisation’s activity should be included in the scope of the rules. The ‘purpose test’ determines whether the activity can reasonably be regarded as intended to influence voters and the ‘public test’ determines whether activities are also aimed at, seen or heard by, or involve the public. The risk for some businesses is that the Electoral Commission could determine these tests in a way, which is seen as somewhat subjective.

So, what should organisations do to ensure they don’t get unwittingly caught? They should exercise caution on all public messaging and public relations activity up until next May and identify key areas of risk on their communications plans over the next six months. They should be aware of upcoming developments in the political and public policy environment and be aware of what the political parties are saying. On areas where they are not sure, businesses should consult those who are familiar with the Guidance – whether that involves communications professionals, legal advisers or, indeed, the Electoral Commission itself. This should provide greater clarity and comfort to businesses as we watch the drama unfold on what promises to be an eventful, unpredictable, close fought and potentially ugly general election campaign next year.

Further information on the Electoral Commission’s guidance for non-party campaigners can be found here: http://www.electoralcommission.org.uk/i-am-a/party-or-campaigner/non-party-campaigners

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