London, 19 September 2014
Back in August, the PRCA Not-For-Profit and Charity Group wrote to the Electoral Commission with fundamental questions about the impact of regulations for non-party campaigners during the 2015 General Election.
And with the regulations starting today, the Electoral Commission’s responses make it clear that the advice to keep calm and keep campaigning is still correct.
In fact, providing your campaign started prior to the 19th September, it is difficult to see how the Act can apply. Other key rulings the Commission have made include:
- If a politician (or group of politicians) decide to back an existing campaign, this is not then covered by the Act
- All pro-bono activity must be accounted for at market rate and should be included if in scope, as must all overtime
- Yet, volunteer time is not included (although training and equipping volunteers with campaign material is)
But given the 1,300 word response to the PRCA from the Electoral Commission contained links to over 300 pages of guidance (especially useful is this document [pdf]), the complexity of the regulations and the speed at which they are being rushed in, eight months before an Election, will continue to be a cause for concern.
Incredibly, the regulations are still being developed. In follow-up correspondence, the Commission clarified to the PRCA that press conferences are covered, but media interviews are not. So, don’t call a press conference. Ever.
In addition, the Commission has still to publish guidance on key areas such as social media.
So, sadly, not every question will be answered and not every campaigner will be properly prepared for the impact of this legislation. But the PRCA Not-for-Profit and Charity Group would like to hear from any members who decide to register or are reported to the Commission.
And in the meantime, there are five initial principles to help campaigners avoid falling foul of the Act.
Edited highlights from the Electoral Commission’s response to the PRCA. The letter is available in full here [pdf] and the Commission’s words are in below italics:
Definition of what is covered
1. If one political party (or group of candidates, etc) publicly supports an apolitical campaign following its launch, does this fact make the campaign subject to the Act from that point forward? And is this support ever considered to have ended or lapsed?
If the campaign was not previously regulated, your subsequent campaign activity is unlikely to become regulated campaign activity simply because a party has changed its position unless, for example, you change your approach as a result of their support and start publicising their support for your campaign.
2. If you are a charity spending government money on service delivery (e.g. via direct grant or contract) and this requires public awareness campaigning on related-issues, would this be covered?
Spending on public awareness campaigning is only regulated if the campaign activity takes place during the regulated period and meets the public and purpose tests. We consider it highly unlikely that awareness-raising of service delivery will meet the purpose test.
3. If any restrictions imposed by the Act lead to a breach of a pre-existing contract for not delivering on agreed targets (either by a supplier working with an organisation or an organisation with a contract with government), how should the organisation deal with this?
As noted in response above, we think it unlikely that the rules will prevent a contract being fulfilled and the current guidance would help a campaigner to make this assessment of their activity.
The Electoral Commission has, however, offered to produce further guidance on this topic if any charities wish to have it.
Extent of work covered
4. Do spending limits cover activity carried out by staff where the only cost is their salary and where working on the campaign is a proportion of their role (e.g. time of spokespeople, such as a chief executive, conducting media interviews) If so, how would this be calculated?
Conducting media interviews is not a regulated campaign activity - regulated campaign activities are listed on page 4 of our guidance Overview of regulated non-party campaigning.
However, note that according to this guidance, press conferences can be regulated and the reply goes on...
All costs (including staff costs, overheads or administrative costs) that relate to regulated campaign activity will count towards the spending limits. Pages 5-6 of our guidance [pdf] explain how to calculate these costs.
5. How should overtime and pro-bono support / secondments from suppliers be calculated and reported?
Overtime is part of staff costs and should be calculated in the same way… Pages 12-13 of the same guidance explain how to calculate and record pro-bono support and secondments from suppliers.
This guidance states that “You must record the full commercial value of these items or activities if: you receive the item free of charge or at a non-commercial discount of more than 10%, and the difference in value between the commercial rate and what you pay is over £200 This, in effect means that all pro-bono support and secondments are covered.”
In effect, this means that all pro-bono support will need to be assessed and declared at its full value.
The PRCA have challenged this ruling in the follow-up correspondence, but the Commission ruled that while volunteer time from staff (or suppliers) would not be included, over time and any “notional value” which could be attributed to pro-bono support would need to be declared (and any discount offered by a supplier may need to be shown at the full value).
6. Do PR agencies need to register, or are they covered by their client(s) registration(s)?
If you as a public relations agency spend money on regulated campaign activity during the regulated period, and you do so on your own behalf, you must register with us... If you spend money on behalf of another organisation, for instance because you are supplying that organisation with your professional services, that organisation must register with us… The cost of their contract with you to provide regulated activity on their behalf will count towards these amounts, as will any additional regulated activity that they undertake themselves.
7. Is time spent training volunteers and providing them with skills to campaign covered?
Volunteer time, including time spent by your staff that you do not pay them for, does not count towards the spending limits. If you pay staff to train anyone in connection with regulated campaign activity, those staff costs will count towards the spending limits. For example, if you pay staff to train volunteers in creating election material or in managing a public event which will meet the public and purpose tests, spending on the proportion of the training which is connected with regulated campaign activity will count towards the spending limits. If you train volunteers using other volunteers, their time does not count towards the spending limits. In all cases you must make an honest and reasonable assessment of your actual spending on regulated campaign activity.
Complying with the regulations
8. How detailed will the breakdowns need to be? i.e. should we count for in-house printing/copying, posting content on-line (including a share of broadband connection, etc), time spent sending a tweet?
Spending returns completed by non-party campaigners must include how much was spent on each category of regulated campaign activity. These categories are set out on page 4 of our guidance Overview of regulated non-party campaigning. The same document also provides more detail on what counts under each category. You must also keep invoices or receipts for any payments over £200. In many cases, the costs of posting material on a social media site, for example sending a tweet or updating a Facebook page, will be negligible. In all cases, campaigners should make an honest and reasonable assessment, based on the facts, of the proportion of spending that can be fairly attributed to their regulated campaign activities.
Although note that guidance on social media is still to be created by the Electoral Commission.
9. Is there any allowance for commercial confidentiality in the reporting?
[…] There is no provision for commercial confidentiality in the rules for non-party campaigners.
10. If the organisation has a retained marketing agency / suppliers working across campaign and non-campaign activity, how should this be broken down in reports?
Only spending on regulated campaign activity will count towards the spending limits. Campaigners may need to split their spending to ensure that the correct costs are counted towards their spending limits. Some examples of where this might apply are provided on pages 9-11 of Managing non-party campaign spending. You may also find our expert paper Splitting campaign spending useful. The information that campaigners are required to report, and how this should be broken down, is explained on pages 29-31 of Managing non-party campaign spending.