Politics - too serious a matter to be left to politicians, unlawful if left to institutions



The febrile culture of pre-election campaigning has begun to exert its influence not only on the political classes, but also on the panoply of regulators seeking to ensure compliance within their areas of responsibility.  The Electoral Commission, a body not usually listed in the dramatis personae of agencies impinging on the education sector, recently issued guidance on the use of social media for non-party campaigning, which amounts to a regulated activity if certain criteria are fulfilled. That guidance included a warning that, provided other criteria were fulfilled, the use of social media would bring non-party campaigners within the ambit of the regulatory framework and therefore the cost of using those media should be monitored to ensure compliance with the current law on political campaigning.

The juxtaposition of the terms “political” “campaigning” and “social media” raises justifiable concerns within the sector, not characterised by its diffidence in expressing views on government policies by means of the full range of social media available. Could institutions therefore be construed as non-party campaigners subject to the regulatory control of the Electoral Commission?

The background to this conundrum is that amendments were made to the Political Parties, Elections and Referendums Act 2000 to make lobbying more transparent. Any non-party organisation that spends over the threshold of £20,000 (in England) or £10,000 (in Wales, Scotland and Northern Ireland) on political campaigning in the run-up to an election (the “regulated period”) must register with the Electoral Commission. Secondly, the organisation can then only spend a certain amount of ‘controlled expenditure’ on political campaigning in total within the ‘regulated period’. The regulated period for the 2015 general election is 19 September 2014-7 May 2015.  Controlled expenditure includes canvassing and market research from the public, publications made available to the public or public events or rallies.

Before the concept of a regulated campaigning activity is explored, it is important to note the constraint imposed by charity law on educational institutions.  As charities, universities and colleges must pursue only their charitable purposes and for the public benefit.  Political purposes are not charitable.  An institution cannot therefore give general support, financial support or support in kind to a political party, and must at all times maintain and guard its independence from political parties and candidates.

Notwithstanding the potential breach of charity law, an institution will be construed as engaging in regulated campaign activity if it fulfils the following two tests:

1.    The purpose test

Spending on campaign activity will be regulated if the activity in question can reasonably be regarded as intended to influence voters to vote for or against:

·         one or more political parties;

·         political parties or candidates that support or do not support particular policies or issues; or

·         categories of candidates (e.g. pro-immigration candidates).

The purpose test can be fulfilled inadvertently, even if the intention is to heighten awareness of a particular issue if, for example, the issue in question is very closely and publicly associated with a particular candidate or party.   The tone, context and timing of an activity or an activity that is implicitly or explicitly a call to action to vote for a particular candidate or party could fulfil the purpose test if, viewed as a whole, a reasonable person would regard the communication as intended to influence people’s voting choices.

2.    The public test

In order to fulfil this test, the campaigner’s work must reach the public, or a relevant section of the public.  Using social media to promote material as part of a political campaign will undoubtedly fulfil the public test. The Electoral Commission’s guidance states that:

·         costs incurred in employing staff who spend a significant proportion of their time creating and posting material that meets the purpose test; and

·         the costs related to the production of online materials and links to increase the reach of those materials

should be assessed to determine whether they are kept within the statutory limits and if not, to fulfil the requirement to register.

Do institutions engage in regulated campaigning activity?

Institutions rightly seek to influence policies that affect their ability to fulfil their educational and research mission and to fulfil their charitable objects.  As a result, many institutions employ public affairs and policy advisers to increase engagement with policy makers and with the public in general.   Traditionally, institutions have been careful to fulfil those noble ambitions while at the same time being careful not to promote party-political objectives in breach of charity law.  

Institutions are therefore unlikely to fulfil the purpose test and consequently monitoring the costs of using social media is irrelevant in the context of regulated campaigning activity. Nevertheless, in view of the imminence of the 2015 general election, it would be prudent for institutions to remind staff of the importance of maintaining institutional political neutrality and if any staff are members of, or wish to promote, a particular political party, they should do so via their own private and personal social media sites.  The legislation does not however seek to regulate genuine analysis of party policies for genuine academic purposes.

Geraldine Swanton
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385
W: www.sghmartineau.com


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