Charity and politics 2: why can’t charities be political?

This is the second in a series of blogs about the relationship between charity and politics. (The first, which outlines how charities are regulated around political activity, can be read here.) In this post, I want to look at some of the arguments that have been made for why there needs to be the separation between ‘charitable’ activities/purposes and ‘political’ ones.

Broadly speaking, there are four arguments:

1. Precedent: the first legal case that explicitly drew the line between charity and politics was Bowman vs National Secular Society in 1917. In the ruling, Lord Parker stated that “a trust for the attainment of political objects has always been held invalid”, essentially claiming that charities can’t be political because they have never been political. This involved ignoring lots of 19^th-century charities which were clearly set up to pursue legal reforms such as the RSPCA and the British and Foreign Antislavery Society. It is notable that Scottish charity law has a different interpretation of the relationship between charity and political activity, even though this is based on the same case law as elsewhere in the UK.

2. Separation of powers: in the 1917 Bowman case, Lord Parker also claimed that “the Court has no means of judging whether a proposed change in the law will or will not be for the public benefit”. This is an argument based on the separation of powers – that it’s up to Parliament to decide what the law should be, and that the courts are crossing into Parliamentary territory if they decide that the public will benefit from a change in the law. Some critics have pointed out that, from another perspective, “judges spend much of their lives doing little else but assessing the public benefit of things put before them” (Perri 6 and Randon 1995). A case from 1948 involving the National Antivivisection League – which had as one of its purposes banning vivisection – illustrates this ambiguity. At one point in the ruling, the Law Lords state that the organisation can’t be charitable because then they would have to decide if banning vivisection was good or bad, then later on say that the organisation can’t be charitable because vivisection is an important and beneficial part of medical research (Gladstone 1982, 100).

3. Tax relief: a third position argues that since charities receive tax relief they are partially funded by the public. As political purposes are by their nature controversial, allowing charities to be political would mean members of the public inadvertently supporting causes they disagreed with. Counter arguments to this have pointed out that taxes are often spent on things individual members of the public dislike, and that other kinds of tax relief are not connected to restrictions on political speech, most obviously the tax benefits received by private companies (Perri 6 and Randon 1995).

4. Public trust: a final argument claims that by engaging in political activity charities will become less legitimate in the eyes of the public. Election guidance produced by the Charity Commission in 2019, for example, said that charities “appearing to take a political position on either side could risk undermining public confidence in charity as something special”. However, recent polling has indicated that a majority of the public do actually expect charities to challenge government policies that they see as harmful, and other research has also found very little link between decreases in trust in charities and concerns about being ‘too political’.

I have a bit of a different read on the separation between ‘charity’ and ‘politics’. Many of the arguments above treat them as self-evident categories, as if it should be obvious what is ‘charitable’ and what is ‘political’ and why they should be kept apart from each other. However, I would argue that when you look back you can see that these concepts have developed in relation to each other over the last 500 years, and have always been tied up in power struggles.

The first piece of charity law, the Charitable Uses Act 1597/1601, was part of the Poor Laws, a series of pieces of legislation which set up the first state provision of poor relief. The Poor Laws are a key moment in the creation of the modern state – they embedded the idea that the state had a general responsibility for relieving poverty, and also had the right to interfere in people’s lives by putting them in the workhouse. Welfare, and the taxes that fund it, have been highly controversial arenas of ‘political’ struggle ever since.

Right from the outset, however, the state was factoring that their activities would be accompanied by other kinds of poor relief provided by charities – the motivation for creating the Charitable Uses Act was to address the widespread misuse of charitable funds at the time so that the public would be more likely to donate to them. But unlike taxes, giving to charity was framed as an uncontentious way of supporting ‘good works’ sitting outside of politics, even though it was part of the same system of poor relief.

Of course, there have been huge social, political and economic changes in the last 400 years, and the meaning of both ‘charity’ and ‘politics’ has changed considerably since Elizabethan times. But a consistent theme over the centuries has been the ambiguous space that charity sits in, officially independent from the state but factored into state policy, and a crucial part of power struggles while also being constructed as nonpolitical. So when charities today find the line between the charitable and the political hard to navigate, they are in good company.

References

Gladstone, F. (1982) Charity, Law and Social Justice. NCVO/Bedford Square Press.

Perri 6 and Randon, A. (1995) Liberty, Charity and Politics: Non-Profit Law and Freedom of Speech. Aldershot: Dartmouth Publishing Company.