Charity and politics 3: the changing landscape of charitable purposes

This is the third in a series of blogs about the relationship between charity and politics (you can read the first one on the current legal framework here, or the second one on why charities can’t be political here). In this blog, I want to talk more broadly about charitable purposes, and how these have changed over time.

The first piece of charity law was the Charitable Uses Act 1597/1601, which was intended to address the widespread misuse of funds going on in Tudor charities. This Act gave the Lord Chancellor powers to appoint commissioners to investigate malpractice, and in its preamble listed the kinds of uses that commissioners were allowed to investigate:

“some for relief of aged, impotent and poor people, some for maintenance of sick and maimed soldiers and mariners, schools of learning, free schools and scholars in universities, some for repair of bridges, ports, havens, causeways, churches, sea-banks, and highways, some for education and preferment of orphans, some for or towards relief, stock or maintenance for houses of correction, some for marriages of poor maids, some for supportation, aid and help of young tradesmen, handicraftsmen, and persons decayed; and others for relief or redemption of prisoners or captives, and for aid or ease of any poor inhabitants concerning payments of fifteens, setting out of soldiers and other taxes.”

This wasn’t intended to give a comprehensive definition of what was charitable – there were some major things missing from it, most notably religious institutions, because the Protestant writers of the law were worried about future Catholic commissioners using this to take assets from Protestant organisations. However, this section of the preamble was often used by later judges to decide whether or not an organization was charitable.

A case in 1891 provided the first legal definition of charity, ruling that there were four categories of charitable purposes: relief of poverty, advancement of education, advancement of religion and ‘other purposes beneficial to the community’. This fourth category was obviously very broad, and in practice judges often referred back to the 1601 statute and drew analogies with the things on its list to decide what could or couldn’t be charitable purpose. This situation went on until the Charities Act 2006, and so the list from 1601 was having an impact on groups trying to register as charities up until then.

The case law shows quite a complicated and contradictory terrain, with what has or hasn’t been considered charitable changing in different contexts and at different times. For example, the National Antivivisection League, which has one of its purposes banning vivisection, was considered to be charitable in 1891, but in 1948 the Law Lords ruled that actually this purpose was political and the League didn’t qualify for tax relief.

Sometimes changes to what is considered charitable have been in response to legal developments outside of charity law. A case in 1949 – somewhat ironically, involving an organisation trying to build good relations between white English and Dutch speaking South Africans – had held that ‘appeasement of racial feeling’ was a political rather than charitable purpose. However, the Charity Commission changed its stance in 1983, recognising the impact of the various Race Relations Acts:

“We took the view that [the 1949 case] did not freeze the appeasement of racial feeling as a political purpose for all time. In England and Wales the question of whether it would be beneficial to the public to appease racial feeling appeared to be no longer a political one as legislation had been passed in an attempt to force good race relations.”

An updated definition of charitable purposes was finally put into law in the Charities Act 2006, which lists 13 categories of activity that can be considered charitable. Probably the most notable change was the addition of “the promotion of human rights” to this list, which had been considered a grey area since Amnesty International was refused charitable status in the 1980s. (See my next post for more discussion about the relationship between ‘human rights’ and charitability.) Just as the Race Relations Acts led to some kinds of antiracist activity being considered uncontentious and nonpolitical and therefore charitable, the Human Rights Act 1998 led to human rights being included in the Charities Act 2006 list.

There is a contradiction here: while campaigning for the Race Relations Acts or the Human Rights Act would have been seen at the time as political and noncharitable, having become law they created a new social context where antiracism or promoting human rights were moved into the charitable category. What is seen as charitable and nonpolitical is therefore the outcome of political struggles. And yet at the same time, the Charity Commission and judges in the case law persistently talk as if there is a stable distinction between charitable and political purposes that everybody agrees on, and as if a new social consensus (for example that racism is bad) could be built without anyone having to confront power.

One interpretation of this is that we are looking at conservativism in action. ‘Small c’ conservativism (i.e. not specifically to do with the Tory party) is a way of looking at the world which values stability and tradition, often contrasting itself with liberal or radical worldviews which are seen as invested in destructive change. Yet in order to maintain power, conservatives have to constantly adapt to their circumstances – as Edmund Burke put it, “we must reform in order to conserve”. There is a process of change, accompanied by a claim that things are actually staying the same, which denies the competing interests and conflicts which are involved.

I would argue that the concept of what is charitable contains this conservative impulse, constantly shifting while claiming continuity with the past. And tracing how it has changed over time can help us to understand charitability as a moving target, while also unpicking the interests that are served by presenting it as fixed and unchanging.

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