Like many of us, I am trying to rethink this project in the light of the coronavirus outbreak – is my research even relevant in this moment of crisis? Yet precisely because civil society organisations are now having to re-evaluate their work, the questions I’m exploring about the space for political action are likely to be very live at the moment across the sector.
For charities, ‘political activity’ is defined as campaigning for changes in the law, and many organisations are likely to want to make demands of government in the coming months. This blog is aimed at charities trying to figure out how their response to coronavirus fits with the framework of ‘charitability’ – especially small organisations without easy access to legal support. I am not a legal expert, and this shouldn’t be taken as legal advice! However, based on my understanding of the legal, practical and political conditions that tend to get charities into trouble for being overly political, here are 5 reasons why I think charities should not feel constrained by charitability in this moment.
1. Charitable purposes and ‘reasonableness’
Under charity law, charities can engage in political activity but only to fulfil their (nonpolitical) charitable purposes. Some cases where charities have been pulled up for being ‘too political’ have hinged on whether the Charity Commission is convinced by the relationship between an organisation’s nonpolitical purposes and the political activity they have engaged in. For example, the Woodcraft Folk was reprimanded by the Charity Commission in 2003 for overstepping its educational remit by promoting an anti-Iraq war demonstration – even though they presumably thought this was in line with their purpose to “educate and empower children and young people to be able to participate in society”.
Trustees also have to show that engaging in political activity is ‘reasonable’ – that they have considered other ways to fulfil their charitable purposes, and that the political activity has a likelihood of success. Again, trustees and the Charity Commission may come to different views on this e.g. when War on Want was warned by the Commission in 2006 that its campaign against a trade treaty between Israel and the EU needed to demonstrate “a reasonable expectation” that this would further its charitable purposes to relieve poverty.
In one sense, tackling Covid-19 is outside of almost all organisations’ charitable purposes, since it is an unprecedented issue. But its effects are so wide ranging that the connection between it and, say, homelessness, the rights of trans people, or tackling food waste, shouldn’t be difficult to demonstrate. Similarly, given that the crisis is so acute and widely acknowledged – and in a context where local government funding is being repurposed across the board to address it – it would be hard to argue that it was not reasonable for a charity’s trustees to redirect its activities.
The CC9 guidance on charitable campaigning states that a charity can devote most all of its resources to political activity for a period of time, so long as this doesn’t go on for so long that it effectively becomes the purpose of the organisation. This obviously leaves something of a grey area about when something crosses over from being an ‘activity’ into a ‘purpose’. In the case of coronavirus, however, the fact that the public health crisis will come to an end at some point is protective for charities. It should be straightforward to make the case for why all resources were diverted to political campaigning on this issue for this time period, without being accused of this having become the organisation’s purpose.
3. Public opinion
As I wrote in an earlier blog, another way that charities are policed around being ‘too political’ is on the basis that this goes against what the public wants charities to do. (E.g. the Charity Commission’s 2019 election guidance which stated that “appearing to take a political position on either side could risk undermining public confidence in charity as something special”.) In general, what is being seen as ‘public opinion’ is often the views of a vocal minority anyway – polling has shown that the majority of the public expect charities to challenge government policies they see as harmful, and it is politicians and journalists who are far less supportive of this kind of action.
In the context of coronavirus, the disruption is so ubiquitous, and the situation so urgent, that it seems far more likely that the public would be critical of civil society organisations for taking too little action rather than too much. And more importantly from a governance perspective, it would be difficult for the Charity Commission to make a convincing case that public trust had been damaged by making calls on the government at this time.
4. The courses of action are not yet clearly partisan
Charities cannot support a political party, although they can be vocal about wanting to see particular policies enacted. One of the grey areas for charities is that they also have to avoid being perceived to be partisan, which can be tricky if the policies they support are broadly aligned with a particular party. Oxfam was told that it “should have done more to avoid misperception of political bias” when it was investigated for its Perfect Storm tweet, even though the Charity Commission accepted that they had not intended to act in a party political way.
In the current crisis, while different messages are coming out from different parties, so far the situation is evolving so rapidly that there isn’t a stable alignment between certain policy asks and the main parties. This will make it easier for charities to avoid being perceived to be partisan at the current moment; however, this is likely to change after the public health crisis has peaked, and charities should prepare themselves for a much more polarised political context later in the year.
5. Lack of capacity at the Charity Commission
In practice, the Charity Commission is rarely proactive in investigating organisations for political activity* – most investigations are reactions to complaints (especially if they come from Conservative MPs) or negative press (especially in right-wing newspapers). The Commission has experienced major funding cuts and understaffing in the last decade, and also just saw a mass exodus of staff earlier this year. Their new employees coming on board right now, working remotely in the context of a pandemic, are probably barely going to have the capacity to fulfil their basic functions, let alone pursue complex investigations.
Again, this could change after the worst of the public health crisis, but the scale of the changes happening at this time makes it less likely that particular organisations would be picked out for being too political right now, especially given all of the other factors discussed above. This is also important because one of the Charity Commission’s strategies is to clamp down on charities whose politics they dislike by focusing on violations of its increasingly complex reporting requirements – and nitpicking in this way this is unlikely to be a priority in the coming chaos.
In conclusion, all of these factors imply that during the public health crisis charities should be able to take whatever political action they think is reasonable, and devote as much of their resources to this as makes sense, without negative repercussions. The real difficulties are likely to come with the social and political crisis that will hit after the worst of the public health crisis recedes. While it is very difficult to focus on anything other than immediate needs right now, the charity sector might be wise to take legal advice and do advanced planning on how to handle this next stage, especially in the light of the restrictions on civil liberties in the Coronavirus Bill.
*An important exception is the Charity Commission’s ‘counterterrorism’ strand which has proactively targeted many Muslim charities over recent years.