Trustee Conference PM5: Getting campaigning right

Drinks sponsors:

GETTING CAMPAIGNING RIGHT: FROM COMPLIANCE TO INFLUENCE

7 NOVEMBER 2016

Partner sponsor:

Media partner:

Lead sponsor:

GETTING CAMPAIGNING RIGHT

• Simon Steeden, Partner, Bates Wells Braithwaite

• Chris Walker, Senior External Relations Officer, NCVO

• Discussion groups and feedback

LEARNING OBJECTIVES

By the end of the session you will have:• Understood the law on campaigning with

reference to recent developments• Received tips for good practice in campaigning

for trustees• Discussed issues of relevance to trustees on

campaigning

Getting campaigning right: trustees and compliance

Simon Steeden: PartnerNovember 2016

Summary of this presentation

1. Legal framework/classifications of charity campaigning 2. Trustees’ duties 3. Trustee risk management/identification4. Campaigning in the run up to elections5. Questions

1. The legal framework for charity campaigning

Type 1: Non political campaigning

Campaigning targeted at voluntary changes, such as…

Public awareness raising and changing public attitudes on a particular issue

Activities to change the policy or practice of a business or company

Type 2: Political campaigning

• Activity by a charity which is aimed at securing, or opposing, any change in the law or in the policy or decisions of central government, local authorities or other public bodies, whether in this country or abroad. It includes activity to preserve an existing piece of legislation, where a charity opposes it being replaced or amended.

• Human Dignity Trust v. Charity Commission CA/2013/0013.

Type 3: Party political and electoral campaigns

Charities cannot engage in party political or electoral campaigning

Examples of banned party political campaigning

‘Regulator orders mosque charity to remove party political mural from dome’

‘Charity Commission writes to four charities that signed pro-Tory letter in The Daily Telegraph’

How much campaigning can a charity carry out?

Type 1Non-PoliticalCampaigning

Type 2PoliticalCampaigning

=

=

100% of resources.

CC9 guidance (March 2008): political campaigning cannot be the sole and continuing activity.

199999/0119

Awareness Raising

Changing Law or Policy

Type 3Party PoliticalAnd Electoral Campaigning

= Including supporting a party, a candidate or groups of candidates = prohibited.

Party Political/Electoral

2. Trustees’ duties

CC9 Guidance – what a charity can do

Subject to satisfying Trustees’ duties, a charity can:

• Seek to change law or policy• Campaign to preserve existing legislation• Lobby MPs and disseminate voting patterns to charity supporters• Affiliate to a campaigning alliance, even if some members are not

charities, e.g.

Trustees’ duties

1. Trustees must comply with all legal requirements, which include:

• Advertising law (i.e. ASA/CAP code)• Charity law• CC9 Guidance• Election law• Defamation law• Public Order law e.g. SCOPA 2005

2. Trustees must ensure that any activity of the charity furthers its objects

Trustees’ duties - Furthering the charity’s objects

Q: How can Trustees decide if a campaign is furthering the charity’s objects?

A: Trustees should consider the following questions:1. How likely is it that the campaign will reach its objective?

2. What other activities would achieve the same objective?

3. Is the use of resources to promote the campaign justified, in terms of: Duration and financial cost? The availability of other more cost effective options Will campaigning be the only activity?

3. Trustee risk management

Risk: Questions trustees should consider

•Is the Charity acting outside its purposes? •Is there a sound and factually accurate evidence base?•Is there a risk to independence, e.g. public perception if Charity’s policy coincides with a political party?

General risk management

•Have the Trustees approved a strategic plan for campaigning? •Do the Trustees have appropriate means of approving campaigning, e.g. delegated sub-committee?

Strategic ControlEnsuring that campaigning is an ancillary activity of the Charity in

furthering its objects

•Are there “risk of what we say” policy/procedures in place for Trustee sign off?•Do the Trustees regularly review campaign risks?•Are there campaign evaluations and impact assessments in place?

Operational Control

Ensuring policies are in place to properly manage and deliver the

Charity’s Campaigning

Risk/Benefit analysis of campaigns

As part of its assessment of the overall risks and benefits of the activity, a charity should consider:• the risk that the activity may not be effective, or that the charity will be drawn

into activities that are outside its purposes• the costs and benefits of engaging in a particular campaign• the risks attached to the campaign, and how these might best be managed;

these include public perceptions of the charity’s independence, for example if a charity is supporting or opposing a policy that is also advocated by a political party

• the strategy for delivering the campaign• how best to evaluate the campaign’s success and impact• Trustees must not allow a charity to be ‘used as a vehicle for the expression

of the political views’ of individual trustees or staff• Consider reputational risk. Reputation = valuable charity asset to be

protected • Should keep a record of this risk analysis

Managing risk of political association

• It is important to consider the perception of party political association of material, even if this is not the purpose of the campaign.

• Ensure use of social media and hashtags does not inadvertently engage with terminology that is attached to one particular party unless you can provide good rationale for the use

• Even where the Charity Commission investigate and do not uphold the complaint, this can still draw negative attention to the charity and can lead to newspaper coverage of such complaints – potential reputational damage

Pre-empt possible complaints

• Pre-empt the kind of complaints you may receive and the investigations these may lead to.

E.g:

• Paper trails of sign off and engagement with charity’s objects/activities

• Risk management controls in place

• Evidence of trustee level involvement/control

• Evidence of the percentage of charity resources used on the campaign and consideration of how this can be justified

Consider the current environment facing charities

• In past, ASA biggest risk - Charity Commission becoming much more of an active/strict regulator

• Shift in public opinion toward charities

• ‘Sock Puppet’ doctrine – public money funded charities

• Have to understand that this means more risk/more need for proper controls and consideration of political association perception need for proper factual basis for any allegations

And trustee engagement can bolster campaigns...

4. Campaigning in the run up to elections

Campaigning in election periods – regulators

Electoral Commission Charity Commission

Intending to influence people’s voting choice

Attempting to influence public opinion on matters

of public policy

199999/0119

Timing – Charities and elections

• Remember: Charity Commission guidance CC9 still applies.

• Lobbying Act: regulated period for Political Parties Elections and Referendums Act 2000 begins 4 -12 months before an election

• Charity Commission guidance on “Charities and Elections” applies during the period between announcement of an election and date election is held

• Other legislation may apply– Representation of the People Act 1983– Section 365 Companies Act 2006– Local Government Act 1986

199999/0119

Simon Steeden

[email protected] 551 7782

www.bwbllp.com

Get in touch...

CHRIS WALKERSENIOR EXTERNAL RELATIONS OFFICER, NCVO

WHEN CAMPAIGNING GOES RIGHT

DOING THE GROUNDWORK

• What do you want to achieve?• Is campaigning the most effective way to do it?• How will you know you have been successful?

KNOWING WHEN TO CAMPAIGN

Value addedPolitical opportunityTimingWinnabilitySaleability – to decision makers, your supporters?Does it fit with remit of your organisation?CredibilityWhen other options have failed…

EVIDENCE

A good campaign needs a strong evidence base• inform your work• help your influencing• help you evaluate

UNDERSTANDING CHANGE

Why do we need change? What do we want to change? How will change happen? Who has the power to make this happen and what will influence them? What do we need to do? What will success look like?

THE CAMPAIGNS CYCLE

Analyse the issue

Develop strategy for

change

Plan the campaign

Deliver the campaign,

monitor progress

Evaluate – build on success,

manage failures

PLANNING

Activities

Impact

Outcomes

• a process, not an event• about achieving specific impacts, not just

raising awareness of problems• about developing strategies based on research

and analysis rather than guesswork• about choosing approaches and deploying

resources where they will have most impact• communicating in ways which resonate with

those you seek to influence

…thinking and acting strategically

EFFECTIVE CAMPAIGNING IS…

QUESTIONS FOR TRUSTEES

• Is there a clearly identified end goal?• Do we have the right plan to reach that goal?• How likely is success?• Do we have the resources we need?

DISCUSSION GROUPS

• What have been your biggest concerns around campaigning as a trustee – how have you mitigated these and worked as an organisation to ensure you complied with the law and campaigned effectively?

• How do you want to support campaigning by your organisation? Are there any tools that would help you to better support campaigning?

KEEP IN TOUCH

CHRIS WALKER, SENIOR EXTERNAL RELATIONS OFFICER, NCVO

[email protected]

@_C_WALKER