Political campaigning and social media activity: the Commission's decision on Humanity Torbay and Elections Bill 2021 in the UK

On 25 March, the Charity Commission released its inquiry decision relating to Humanity Torbay, a charitable incorporated organisation (‘CIO’) that managed a community drop-in centre providing information and advice on health, wellbeing, housing, employment, and referrals to local food banks.

The investigation centred around the political nature of some of the organisation’s media content (in particular, Facebook posts made by the CIO’s founder and CEO) which criticised the current UK government.

The Commission has guidance about political campaigning and activity, and advises that trustees should ensure that when senior staff speak publicly on behalf of the charity that those statements further the charity’s objects (and that when senior staff publicly express their own personal political views, it should be very clear that those views were not the views of the charity).

There were additional concerns regarding the management of the CIO’s resources and whether the trustees had general complied with their duties and responsibilities.

The Commission issued the trustees with an action plan, requiring the removal of the inappropriate social media posts and asking the trustees to review their social media policies and procedures. This was not undertaken: in fact, the founder continued to post political messages on the Facebook page. As the founder controlled the Facebook page, it was difficult for the other trustees to remove her posts.

Although the founder ultimately opted to leave the CIO, the potential reputational damage arising from the political posts combined with a decrease in funding and skilled personnel resulted in the trustees deciding to wind up the charity.

The founder admitted that she controlled the Facebook page and that she made the political posts. She accepted the terms of a four-year voluntary undertaking prohibiting her from acting as a charity trustee or holding any office or employment with senior management functions for any charity in England or Wales.

Regardless, the Commission considered the trustees’ failure to control and prevent inappropriate material being posted on its social media pages in the name of the charity to be evidence of misconduct and/or mismanagement in the charity’s administration by the trustees.

Elections Bill 2021 and impact on charities

This decision is also pertinent against the backdrop of the Elections Bill 2021, currently at the report stage in the House of Lords. As the Bill progresses concerns have been raised that charities will be more reluctant to campaign.

The Bill, which aims to “strengthen the integrity of the electoral process” will impact charities by introducing changes to campaigning rules. In particular:

• introducing the category of a new ‘lower tier’ non-party campaigner: this new category will require non-party campaigners incurring regulated spending (i.e. spending on an activity that can be seen by the public and could reasonably be considered to be intended to influence voter choice) more than £10,000 in the year before a general election to register with the Electoral Commission. The current threshold for registration is £20,000;
• new rules on transparency for digital campaigns: these rules will require paid-for digital material that is designed to influence the political support (or otherwise) of the public for candidates or parties or for the outcome of a referendum, to contain certain disclosure information for transparency purposes; and
• new limits on non-UK based campaigners’ spending: non-UK campaigners (which could catch campaigning organisations incorporated outside of the UK operating via an overseas branch) will be limited to spending £700 in relation to a UK election.
  

A survey undertaken by Bond, a UK network for international development organisations, found that one third of respondents said the new ‘lower tier’ would deter them from campaigning, with a further 29% stating that the proposals would “possibly” stop them from campaigning.

Considerations for trustees

In the Humanity Torbay decision, the Commission reiterated its guidance on campaigning by charities:

• under charity law a charity cannot have a political purpose, and campaigning and political activity must only be undertaken by a charity in the context of supporting the delivery of their charitable purposes – for example, a charity may give its support to, or raise concerns about, specific policies advocated by political parties if it would help achieve its charitable purposes (as long as the charity makes clear its independence from any political party);
• when publicly discussing politics, a charity must stress its independence and ensure that any involvement it has with political parties is balanced;
• charities must not give support or funding to a political party, candidate or politician; and
• trustees must protect their charity and not allow it to be used as a vehicle for the expression of the party-political views of any individual trustee or staff member or by a party or candidate.