Draft Code of Practice for non-party campaigners

Some individuals and organisations that are not registered political parties campaign for or against political parties or candidates or on issues around elections, without standing candidates themselves. 

In electoral law, these individuals and organisations are defined as third parties. The Commission calls them non-party campaigners. 

There are laws that non-party campaigners must follow on campaign spending, donations, and reporting.

Many individuals and organisations campaign in the run up to elections and meet the definition of a non-party campaigner but are not covered by the regulatory regime. 

Who is covered by the law

The laws on spending and donations apply to non-party campaigners who spend more than £700 on regulated campaign activity. 

Non-party campaigners intending to spend more than £10,000 on regulated campaign activity must submit a notification to the Commission following which they will appear on the register of notifications3 . Only certain types of entities can submit a notification to the Commission. 

Registered non-party campaigners and the responsible person

Once a non-party campaigner appears on the register of notifications, they are referred to as ‘registered non-party campaigners’.

When a non-party campaigner registers with the Commission, they must appoint a ‘responsible person’. The responsible person is legally responsible for compliance with the laws in PPERA4 . 

If an individual registers as a non-party campaigner, they are automatically the responsible person. 

Non-UK individuals and organisations 

Individuals and organisations that are not based in the UK or are not on a UK electoral register are not permitted to spend more than £700 on regulated campaign activity5 . 

A non-party campaigner can only spend more than £700 on regulated campaign activity if they are:

• listed in section 88(2) PPERA as eligible to give a notification to the Commission or 
• an unincorporated association with the requisite UK connection6 .

An unincorporated association has ‘the requisite UK connection’ if it consists of two or more persons, all of whom are registered overseas electors7 .

The non-party campaigning laws only apply to regulated campaign activity. Not all non-party campaign activities are regulated. 

Activities that may be regulated 

The following activities are regulated if they occur in relation to a general campaign during a regulated period and meet the purpose test:

• press conferences or other media events organised by the non-party campaigner
• transport in connection with publicising the campaign

The following activities will only be regulated if they occur during the regulated period, meet the purpose test and are also made available to the public:

• production or publication of campaign material 
• canvassing and market research 
• public rallies and events8

There are three elements that must all be considered when determining whether an activity is regulated campaign activity:

• the regulated period
• the purpose test
• whether the activity is made available to the public

Regulated period

Spending by non-party campaigners is regulated in the period before a UKPGE and Northern Ireland Assembly elections. This is defined in PPERA as the ‘relevant period’ but is commonly known as the ‘regulated period’.  

UK Parliamentary general elections

The regulated period for non-party campaigners at a UKPGE is the 365 day period leading up to and including polling day9 .

An election to the UK Parliament may be called at any time during the maximum five-year Parliamentary term. 

Where the period of time between the announcement of an election and polling day is shorter than the length of the regulated period, the regulated period will still run for 365 days. The regulated period will be applied retrospectively and will cover a period before the election was announced.

Where a second UKPGE is held within 365 days of the previous election, the second regulated period will start on the day after the first polling day and will run up to and including the second polling day10 . 

Northern Ireland Assembly elections 

The regulated period for non-party campaigners at a Northern Ireland Assembly general election is the four months immediately before polling day. 

In the event of an extraordinary election, the regulated period starts on the day on which the extraordinary poll is announced11 . 

Senedd and Scottish Parliamentary elections

The regulated period for a Senedd or Scottish Parliamentary election may be relevant if it overlaps with the regulated period for a UKPGE. Where the two regulated periods overlap, a combined regulated period applies to the relevant part of the UK. 

This Code applies to combined regulated periods. Spending by non-party campaigners in the relevant part of the UK is regulated for the whole of the combined regulated period.

Purpose test

Spending on campaign activities by non-party campaigners is only regulated if it 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 candidates12

by influencing voters at an upcoming election to vote in a particular way. This is commonly known as the ‘purpose test’. 

The purpose test must be applied at the time, or in the event of a retrospective regulated period as if at the time, the activity takes place. 

There are a number of factors that will help to determine whether an activity can be reasonably regarded as intended to influence voters to vote in a particular way at an upcoming election: 

• A campaign that involves a call to action to voters to vote in a particular way at an upcoming election is likely to be regarded as promoting electoral success for a particular party or category of candidates and so meet the purpose test. The call to action may be explicit, or implicit. 
• A campaign that explicitly promotes particular parties or candidates, or implicitly promotes certain political parties or candidates over others, is likely to meet the purpose test. 
• A campaign that is positive or negative towards a political party or parties, a category of candidates or a policy closely and publicly associated with a party or category of candidate is likely to be regarded as intending to influence voters to vote in a particular way and so meet the purpose test. 
• A campaign that is intended to change political parties’ or candidates’ views on a policy or issue may meet the purpose test if the policy or issue is so closely or publicly linked to a party, parties or category of candidates, that it is reasonable to regard the campaign as intending to influence voters to vote in a particular way. 

An activity can achieve other aims as well as being intended to influence how people vote. However, when determining whether an activity meets the purpose test, it is immaterial whether that activity can be reasonably regarded as intended to achieve another purpose or purposes as well13 . 

Retrospective regulated period

Where a regulated period is applied retrospectively, any pre-announcement activity will only be regulated if, at the time it was carried out, it could reasonably be regarded as intending to influence voters to vote in a particular way at a relevant election14 .

The following are relevant elections:

• UK parliamentary elections 
• elections to the Scottish Parliament
• elections to the Senedd
• elections to the Northern Ireland Assembly
• elections of police and crime commissioners
• local government elections 
• local elections in Northern Ireland

If there are no upcoming elections, an ongoing campaign on a particular issue is unlikely to be reasonably regarded as intending to influence voters to vote in a particular way. See section on campaign activity before an election is announced.

Public activities and material not publicly available 

‘Public’ has no statutory definition and should be given its normal meaning. Activities or material that are made available for anyone to hear or see will be regulated campaign activity. 

Where access to those activities or material is restricted by the non-party campaigner to members or known supporters, this will not be regulated.  

Public activities that are regulated

The following activities will only be regulated if they take place during the regulated period and meet the purpose test: 

• canvassing and market research of the public  
• public rallies and events

Campaign material that is regulated

Campaign material that meets the purpose test and take place during a regulated period will only be regarded as regulated campaign activity if the material is made available to the public, or a section of the public15 . This is sometimes referred to as the public test. 

Whether the material is made publicly available is determined by who has access to that material.  

Campaign material that is not regulated

Where access to campaign material is limited in such a way that the general public would not be able to access that material, this is not regulated campaign activity. This applies regardless of the means by which the material is distributed. 

Where access to campaign material is restricted by the non-party campaigner, those activities will not be regulated. For example, where access is restricted to members, or supporters, this will not be regulated.  

Campaign material that is made available exclusively to individuals who have chosen to receive information from the non-party campaigner, will not be regulated.

Controlled expenditure is any spending incurred in respect of regulated campaign activity. Schedule 8A PPERA sets out the list of qualifying expenses that fall within the regulatory regime. 

General guidance 

Campaign activity before an election is announced

A long running campaign on a particular issue that was carried out before an election was announced is unlikely to be reasonably regarded as intending to influence voters to vote in a particular way at an upcoming election if there is no regulated period. 

If a long running campaign continues unchanged once the election is announced, it is unlikely to be considered regulated campaign activity.

If activity around a long running campaign increases or is altered in the run up to an election in a way that could be reasonably regarded as intending to influence voters to vote in a particular way, it may be considered regulated campaign activity. From the point the campaign is considered regulated campaign activity, the costs associated with that campaign are likely to be controlled expenditure and must be treated as such. 

A campaign may still be considered regulated campaign activity where it is intended to achieve another purpose other than influencing voters if the campaign can be reasonably regarded as intending to influence voters to vote in a particular way at an upcoming election. 

Re-using items paid for and used at a previous election

Non-party campaigners may re-use items from previous elections. Spending on items that were paid for and used at a previous election and were reported in full in a previous spending return do not need to be reported again in the spending return for the same non-party campaigner at the current election if they are used again without alteration. All new costs relating to their re-use, including storage, cleaning, or the cost of altering the items must appear in the spending return. 

Apportionment of items for subsequent elections

Items that have been paid for and used during a regulated period cannot be apportioned or reported solely on the basis that they will be used again during a subsequent regulated period. The full value of the spending must be reported in the spending return. 

Unused items

Items that have been paid for by a non-party campaigner, but have not been used during the regulated period, do not need to be reported in the spending return. 

Items paid for prior to the commencement of the regulated period

Where spending was incurred prior to the start of a regulated period on items that are used during the regulated period, the spending on those items must be reported in the spending return. 

Items provided free of charge or at a discount

Where any items are provided free of charge or at a discount, the appropriate amount must be reported in the spending return as notional spending and/or a donation.  

Apportioning spending

Where spending on an item or activity was incurred partly in connection with regulated campaign activity and partly in connection with non-regulated activity, the amount that must be reported is the proportion that reasonably reflects the amount spent in connection with the regulated campaign activity. 

Only the regulated campaign spending must be reported in the spending return. 

VAT

Spending must be reported inclusive of VAT where applicable, even where VAT can be recovered. 

Overheads 

Overheads that are directly attributable to campaign activity must be reported. The amount that must be included in the spending return is the proportion that reasonably reflects usage during the campaign. The proportion that reasonably reflects usage is generally the cost that is incurred over and above the usual costs in a given period. Where an apportionment of overheads is necessary, an aggregated figure for each overhead is sufficient to meet the reporting obligations.

Overheads include items such as:

• office space
• electricity bills
• the provision of phone lines and internet access
• mobile phones
• the provision of office equipment of any kind

The cost of water, gas and council tax are not costs that fall to be reported as they are not sufficiently closely connected to the regulated activity.

Staff costs

Staff costs that are directly attributable to regulated activity must be reported.  Where staff costs can only be partially attributed to regulated activity, the costs must be apportioned and only the portion attributed to regulated activity must be included in the spending return. 

Where an apportionment of a staff member’s time is necessary, an aggregated figure for all staff time attributed to regulated activity is sufficient to meet the reporting obligations. 

The childcare costs of staff members are not expenses that fall to be reported as they are not sufficiently closely connected to the regulated activity33 .

Excluded items

Any spending on campaign activity that falls to be reported in the spending return of a candidate or in the spending return of a registered political party, must not be reported in the spending return of a non-party campaigner.

Schedule 8A 

Schedule 8A PPERA lists the qualifying expenses that fall within the regulatory regime. 

Expenses that fall outside the regulatory regime

PPERA specifically excludes the following expenses from the reporting requirements:

• expenses incurred in respect of the publication of any matter relating to an election, other than an advertisement:
  • in a newspaper or periodical 
  • as a broadcast made by the British Broadcasting Corporation or by Sianel Pedwar Cymru or
  • as a programme included in any service licensed under Part 1 or 3 of the Broadcasting Act 1990 or Part 1 or 2 of the Broadcasting Act 1996 
• expenses incurred in respect of, or in consequence of, the translation of anything from English into Welsh or from Welsh into English
• reasonable personal expenses incurred by an individual in travelling or in providing for the individual's accommodation or other personal needs
• reasonable expenses that are reasonably attributable to an individual's disability
• expenses incurred in respect of the provision of an individual's own services provided voluntarily in the individual's own time and free of charge34

Expenses that fall within the regulatory regime

PPERA specifically lists the following expenses as falling within the regulatory regime: 

• 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 non-party campaigner
• transport (by any means) of persons to any place or places with a view to obtaining publicity
• expenses in respect of the transport of such persons include the costs of hiring a particular means of transport 
• public rallies or other public events, other than:
  • annual conferences of the non-party campaigner
  • any public procession or protest meeting, within the meaning of the Public Processions (Northern Ireland) Act 1998, in respect of which notice is given in accordance with section 6 or 7 of that Act (advance notice of public processions or related protest meetings)
  • Expenses in respect of such events include costs incurred in connection with the attendance of persons at such events, the hire of premises for the purposes of such events or the provision of goods, services or facilities at them. But expenses in respect of such events do not include costs incurred in providing for the protection of persons or property.

Annex A sets out a non-exhaustive list of the kinds of expenses that do, or do not, fall within the meaning of qualifying expenses.

All registered non-party campaigners must comply with the donation controls in Schedule 11 PPERA that set out who can donate to non-party campaigners.  

Registered non-party campaigners that do not meet the reporting threshold must check whether the donation is from a permissible source, but they are not subject to the donation reporting requirements. 

Donations covered by the laws

The laws on donations only apply to donations that are given to registered non-party campaigners, specifically towards their spending on regulated campaign activity. The laws do not cover money that is received for the organisation’s general purposes.  

For the purposes of donations to non-party campaigners, a donation is:

• money, goods, property or services43
• given for the purpose of regulated campaign activity44 and
• with a value of more than £50045

Anything with a value of £500 or less is not a donation for the purposes PPERA. 

Who can donate to a non-party campaigner

Non-party campaigners can only accept donations from individuals or organisations that are based in the UK46 . The list of permissible sources is set out in s.54(2) PPERA. 

Non-party campaigners must not accept donations from a registered political party47 .

Non-monetary donations

Non-party campaigners must put a value on any non-monetary donation. The value of a donation is the difference between the value of what is received, and the amount, if any, that the non-party campaigner pays for it48 . 

Items that are received for free or at a non-commercial discount, where the difference in the commercial value and what was actually paid for it is more than £500, is a donation for the purposes of PPERA. 

When a non-party campaigner receives a donation of more than £500, they must promptly check whether the donation is from a permissible source. 

Non-party campaigners have 30 days in which to decide whether they can accept the donation49 . A donation that cannot be identified as being from a permissible source must be returned within the 30 day period. 

Non-party campaigners must keep records of the donations that are received, as well as donations that have been returned. These details must be included when the donation is reported to the Commission.