In the run-up to an election, a question universities often find themselves asking is to what extent they can or should become involved in campaigns, election-related events and debates.
There is no shortage of guidance out there, with Universities UK, the Electoral Commission and the Charity Commission all having set out their thoughts on the matter. So, what are the relevant considerations?
Firstly, the need to comply with charity law. This means ensuring that:
- Any activity is in furtherance of the university’s charitable objects of advancing education through teaching and research;
- The proposed activity is permitted under the university’s governing documents; given the very wide range of activities permissible in the governing documents of most university’s this is unlikely to be an issue in practice;
- The university never engages in any party political activity; and
- The university retains its independence and political neutrality.
It follows from this that whilst universities must not support or oppose particular parties or candidates, they can engage in activities designed to promote policies or changes in the law which support the delivery of their charitable objects, including where those are advocated by particular parties.
From the perspective of electoral law, the key consideration is to establish whether the activities proposed amount to “regulated campaign activity”. There is a two-fold test:
- Is the aim of the activity to influence voters to vote for or against parties or candidates who support or oppose particular policies, even where those parties or candidates are not expressly named?
- Is the activity designed to be seen or heard by the public or a section of the public?
On the latter point, events targeted at staff and students are a grey area. Electoral commission guidance for charities suggests that “members and committed supporters”, defined as people who regularly donate or are actively involved in the charity do not count as a section of the public for these purposes. Equally, communications with MPs, political parties and their staff designed to influence the position they take on a particular issue are not considered to fall within the “public“ element of the test.
Identifying regulated activity is important, because if the cost of those activities is likely to exceed more than £20,000 over the period of a year before an election (in this case 9 June 2016) then the institution will need to register with the Electoral Commission. Given the “snap” nature of this election, however, it will be very difficult for anyone to seriously argue that expenditure incurred before the election was called (18 April) could realistically be intended to influence voters to vote in a particular way.
As well as the registration threshold, there are limits on how much can be spent in each constituency and as a cumulative total in each of the constituent parts of the United Kingdom.
In deciding whether any particular campaign should reasonably be regarded as intended to influence voters, the content as well as the “look and feel” of the activity will be considered. Tone, timing and branding may all overtly or subtly reinforce the perception that voters are being encouraged to act in a particular way.
So far, we have considered what steps an institution might wish to take in relation to any campaigning activity it might wish to undertake. The other side of the coin is where institutions are asked to make facilities available to others who wish to campaign, for meetings, debates or hustings for example. Here the key is neutrality and balance – a policy that is applied equally to all parties and candidates except where there is some exceptional and impartial reason to exclude a candidate or candidates. Examples given by the Electoral Commission and UUK include public safety or disorder concerns or constraints due to the number of parties running and room size.
A topical case study is that of the University of Bradford which was recently asked to host the launch of the Labour Party manifesto. Some of the considerations that came into play included:
- The short period of time from becoming aware that the Party wanted to host the event to the date of the event (around 10 days) which created challenges in terms of both completing the required decision-making process and the logistics in terms of event planning and security;
- The fact that, having established the event could lawfully take place, there was still a debate amongst management as to whether it should go ahead. Both pros and cons were identified, and a consensus required to be reached;
- The difficulties in getting the Council as charity trustees to make a decision about whether or not the event should proceed, given that calling a meeting was not possible and university governance does not lend itself to other more timely and flexible methods of collective decision making; and
- The care needed in ensuring that the University was not seen as “supporting” the event in a partisan way but merely facilitating it and thus fulfilling the important civic role of facilitating the democratic process. The University derived some benefit from the incidental coverage of the University and the City that accompanied the launch and a careful decision was needed about how best to capitalise on that.
In conclusion, although universities need to think carefully about how they become involved in election-related activities, there are relatively clear steps that can ensure they do so free from legal risk. Given the vital role HE can play in facilitating the high-quality debate and discussion that underpins a strong, functioning democracy, it is to be hoped that the legal framework will not put institutions off.