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Coronavirus and charitability

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.

2. Timeframe

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.

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Defining ‘the political’

This project is all about one of those tricky, commonplace words that we use all the time to mean different things: ‘political’. There has obviously been masses written about its different interpretations, but one of the discussions that I have found helpful is in Newman and Clarke’s book Publics, Politics and Power (2009) because it specifically links it to ideas of civil society.

They distinguish between three views of politics. The first sees everything as political, since all aspects of social life involve conflicting perspectives and differences of power. The second treats politics as institutional and focuses on the actions of parties and politicians. And the third sees politics as “fundamentally ‘dirty'”, involving “cynical calculation, instrumental manipulation, spin and corruption” (p.21).

The flipside of this third approach is that there must be some other, better, nonpolitical way of organising social life – and people adopting this position often locate this in civil society. For example, accounts of the former countries of the Soviet bloc in the early 90s often contrasted the ruthlessness of the state with the actions of ‘ordinary people’, peacefully coexisting outside of politics. This way of thinking about civil society has a long history going back to Alexis de Tocqueville’s writings about the US in the 19th century, which he saw as a place of liberty and free association completely separate from the market and the state.

My own starting point for this project, in contrast, broadly fits with the first approach Newman and Clark identify – I see ‘politics’ as an ordinary part of everyday life, as we struggle to live collectively in a context where some people have a lot more power than others. Civil society therefore can’t be seen as a place where politics isn’t happening, but instead becomes another context where ideas and norms about what is socially acceptable and how we should behave towards each other are being worked out. This is a view of civil society that chimes less with Tocqueville than with the Italian Marxist Antonia Gramsci, who saw it as an arena which can either support the status quo or act as a site of resistance to it.

This perspective has implications for how I’m going about my research. Since I understand politics as being everywhere, it also exists in the word itself – I agree with Newman and Clarke that who or what gets labelled as ‘political’ “is itself the result of political struggles” (p.22). For civil society organisations, these struggles will often hinge on the question of whether civil society is a place that can legitimately engage in contestations around power, or whether doing so means being seen as tainted by ‘dirty’ politics.

Since the terms are very slippery, my approach starts by looking at how ‘the political’ is defined and interpreted in a range of contexts, and who is empowered and disempowered as a result. Who benefits when the Advertising Standards Agency determines what is ‘political advertising’, when the Charity Commission decides what ‘political campaigning’ looks like, or when Prevent trainings trying to distinguish between acceptable political positions and ‘extremist ideology’? How do small civil society organisations navigate these competing and often contradictory expectations, and how does this benefit or disadvantage the people they work for?

Sometimes the word used to describe how an idea like ‘civil society’ is conceptually separated from ‘politics’ is ‘depoliticisation’. I tend to avoid it because I think this separation is itself a very political act, and calling it ‘depoliticisation’ just makes this more confusing. However, I do like the definition that Brown uses, that “[d]epoliticisation involves removing a political phenomenon from comprehension of its historical emergence and from a recognition of the powers that produce and contour it” (2006, p.15). This suggests that reattaching terms to their histories can help to reveal how they work, which is another approach I’m taking with my research. For example, the legal structures of charitable trusts clearly have a politics when we understand that they have been tax avoidance schemes for the wealthy since the 1200s!

The idea that ‘politics’ needs to be kept in its own separate box is a deep seated one in a lot of contexts e.g. across the arts. And some people have always been attuned to the hidden politics that often underpins this – Skin from the rock band Skunk Anansie wrote in the 90s that “the main criticism we have had is that you can’t mix politics and music, which seems like quite a fascist idea from music journalists.” Her band’s response was to open their album Stoosh with the following track, which is basically the succinct, sweary version of this blog. The chorus goes:

“Yes it’s f*cking political

Everything’s political!”

References

Brown, W. (2006) Regulating Aversion: Tolerance in the Age of Identity. Princeton University Press.

Newman, J. and Clarke, J. (2009) Publics, Politics and Power: Remaking the Public in Public Services. SAGE.

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.

Charity and politics 1: the lay of the land

The relationship between charity and politics is exceptionally complicated, and the next few blog posts will be dedicated to unpacking some of the many issues which arise at their intersection. This first blog broadly outlines the parameters for how charities are and aren’t allowed to engage politically.

An important point to make from the outset is that, contrary to what many people believe, charities have a positive right to engage in ‘political activity’. The main framework governing this is a document produced by the Charity Commission in 2009, Campaigning and political activity guidance for charities (CC9). Below, I’ve drawn out four relevant areas charities have to consider, each of which have grey areas where what is inside or outside of the rules is not entirely clear.

Charitable purposes

To register as a charity, an organisation has to show that its purposes are charitable. Since the Charities Act 2006, 13 different categories of charitable purposes have been set out in law; these are by definition considered nonpolitical purposes. Once registered, a charity can only do activities which help fulfil their charitable purposes. My third blog in this series will look at how these purposes have changed over time and some of the ambiguities in the definitions, and the fourth blog will focus on one of the most unclear areas, human rights.

Campaigning activity vs political activity

The guidance draws a distinction between two types of activities. ‘Campaigning’ is used to refer to activities like raising awareness or trying to ensure that an existing law is observed, while ‘political activity’ is about trying to change a policy or law, or to preserve an existing policy or law if it is being repealed or amended. Essentially, political activity means challenging whoever is in political power, whether that is at local, national or international levels of government.

Charities are allowed to do both of these activities, and can campaign without restrictions, but have to be more careful around political activity. While the guidance says that a charity is allowed to devote most or all of its resources to political activity for a period of time, this can’t go on so long that it effectively becomes the sole purpose of the organisation, and trustees also need to be able to show that they have considered other courses of action and that the activity has a reasonable chance of success.

There are a number of areas ambiguity here. First, the guidance recognises that the line between campaigning and political activity is not always clear, particularly in areas such as human rights. Secondly, there is a subjective element to determining whether political activity has gone on for so long or been so dominant that it can be seen as becoming the organisation’s purpose. And thirdly, there might be quite different assessments of the likelihood of a political campaign being successful, and therefore whether sustained political activity is a reasonable course of action.

Charities and political parties

Charities can engage in political parties, and support policies advocated by particular parties, but cannot support a party itself. This is justified both by the need to maintain independence, and because a party’s manifesto will include a wide range of policies most of which lie outside the organisation’s charitable purposes. The CC9 recognises that charities will work with particular politicians outside of elections, and it is okay to, for example, invite the local MP to a charity’s event without inviting representatives from other parties, so long as the MP doesn’t use this as an opportunity to promote their party.

Grey areas here are around the importance of perception – a charity has to not only remain nonpartisan but be perceived to be nonpartisan, which obviously raises questions around who is doing the perceiving. When Oxfam was investigated for being overly political and anti-government in their Perfect Storm tweet, several of the complaints came from Conservative MPs, who arguably had a political motivation to interpret the tweet in partisan terms.

Charities and elections

The rules are tighter around elections, when charities also have obligations under the Lobbying Act. Broadly speaking, during elections charities are meant to take additional steps to ensure that they are – and appear to be – nonpartisan. The Charity Commission’s election guidance suggests that if charities hold events during election periods they should invite representatives from “as wide a political spectrum as possible” – and if they are asked to input into a party’s manifesto, the CC9 guidance suggests that they should also offer to advise other parties.

A charity is allowed to state which policies it supports in an election where these are relevant to their charitable purposes, and to produce materials which compare parties’ policies in that area so long as they don’t then draw conclusions about how people should vote. For example, the Countryside Alliance can put out material saying that they want to reverse the ban on foxhunting, and comparing the different parties’ stances on it, but they can’t direct supporters to vote Conservative (say) because of their foxhunting policy.

In practice, of course many charities end up being much more aligned with the policies of certain parties rather than others, and the point at which a charity could be seen as tacitly supporting a particular party is pretty subjective. Another difficulty is that it often isn’t in the control of the charity whether a political party is willing to engage with them – charities have to be nonpartisan, but parties can be as biased as they like e.g in the kinds of economic analysis that they are open to. The Lobbying Act (which I will write about in a later blog) has also created a lot of confusion around what charities are allowed to do, and seems to have reduced a lot of charitable campaigning around election times, particularly joint campaigns.

An evolving framework

While the CC9 remains the overarching framework for charities and political activity, additional areas of confusion have emerged in the last 10 years. The Charity Commission have been interpreting the rules more narrowly, and become more punitive when they consider charities to have overstepped the line, as seen in the Human Dignity Trust case and the investigation of the Joseph Rowntree Charitable Trust for funding Cage (see blog 4).

In addition, the Commission’s communications to charities in recent elections seems to conflict with the CC9 guidance. In the run-up to Brexit vote in 2016, the Charity Commission issued a statement saying that it would be “by exception that charities would reach a decision to engage in political activity in the referendum”, which the UN Special Rapporteur said misrepresented the law on campaigning. (The Commission’s statement was subsequently made slightly less restrictive in response to criticism, but this may have just made organisations more confused.) Similarly, an email from the Charity Commission sent out to voluntary sector bodies before the 2019 election was criticised for discouraging campaigning in its tone, and for giving the misleading impression that the law had changed.

In lots of ways, grey areas are inevitable in any kind of legal framework. What is important here is that these grey areas are growing, because of conflicting statements coming from the Charity Commission, and because charity law intersects with other unclear systems of regulation such as Prevent, which has an extremely vague definition of ‘extremism’. Yet even though what is allowed is more and more ambiguous, there is still a widespread assumption that charities should just know what is or isn’t appropriate without having to be told, and that being, say, investigated by the Charity Commission is in itself a sign that they’ve done something terribly wrong even if the investigation decides that what they did was within the rules.

This culture operates within wider society, but my sense is it operates particularly strong within the charity sector itself – that the reputational damage that charities face if they are investigated may be less about how they are viewed by the wider public and more about how they are seen by funders and other charities. It’s like an organisation is seen as violating a kind of politeness or decorum that ‘proper’ charities know how to abide by if their activities even touch on the edge of what’s allowed. And what this results in is a great deal of self-censorship, where charities often avoid anything that could be interpreted as political activity, even though they have a positive right in law to promote policies, criticise government bodies, and engage with political parties.


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 19th-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.

The politics of Judicial Review

Judicial Review developed in the 1960s as a mechanism for questioning and appealing against government decisions. It can be used by individuals to challenge a decision against them, for example if their asylum claim has been refused, and also by organisations, e.g. if they want to argue that they should have been awarded a government contract.

Many organisations also support individuals to make appeals by Judicial Review, and use this to campaign for change. By working with lots of people who are encountering the same problems, they are able to build up evidence of systemic injustices. This is how Detention Action managed to end the fast track process for asylum appeals in 2015, and how the Just for Kids Law was passed which makes sure that 17-year-olds in custody are treated as children and provided with an appropriate adult.

Since 2010, there have been a number of changes which limit the use of Judicial Review, including:

  • making many individuals ineligible for legal aid
  • reducing deadlines for challenging certain kinds of decisions
  • adding new residence tests
  • changing the funding rules so it is harder to claim for casework costs
  • lifting the ‘automatic cost caps’ for environmental cases

We’ve also seen increasingly negative discussions of Judicial Review by government ministers. For example, Iain Duncan Smith attacked the Child Poverty Action Group for legally challenging housing benefit reforms in 2011, and Chris Grayling wrote an article criticising organisations who use it “as a legal delaying tactic for something they oppose”, or those who see it as “a promotional tool for countless left-wing campaigners”.

In 2013, the government consulted on other changes that would stop voluntary organisations from taking out Judicial Review unless they had a ‘direct interest’, rather than “persons who had only a political or theoretical interest, such as campaigning groups”. This was a new kind of justification – whereas previous changes were said to be necessary to reduce costs, the proposals around ‘direct interest’ were specifically about stopping Judicial Review being used as a tool for making collective claims rather than just individual ones.

I think tells us a lot about how attacks on political action work. For these critics, Judicial Review is only a legitimate if it used by individuals – as soon as it is used to identify wider patterns or to make collective claims it becomes illegitimate ‘political’ activity. There is no recognition that ‘the system’ might actually already be extremely unfair against particular groups, and there is also no recognition that the individuals who are most likely to get an unjust decision against them are the least likely to be able to pursue a legal case without support. And then anyone who provides this support is seen as only having a ‘theoretical’ interest, even if they may actually see themselves as ‘directly affected’ because they are part of the same group e.g. if they are both asylum seekers, both Muslims, or both non-native English speakers.

It isn’t yet clear how the current government will treat Judicial Review, but we can probably expect more restrictions in the coming years. How this will impact on campaigning will depend on whether civil society organisations are willing to defend not only the rights of individuals to appeal against government decisions, but also the rights of groups to use Judicial Review to make collective claims even if this is being delegitimised by labelling it ‘political activity’.

Monks and medieval tax avoidance: the origins of trusts

A trust is a legal structure where the owner of an asset is different from the person or people who benefit from it. It is a common legal form for a charity, in particular for grant givers, meaning they have a huge influence on on how the whole of civil society works.

I’ve just been reading a book called Social Justice, Charity and the Law by Francis Gladstone which was commissioned by NCVO in 1982. It’s got loads of interesting stuff in it, including an account of how trusts became a popular part of English law. Initially they were called a ‘use’, but gradually the term ‘trust’ became the accepted one.

Gladstone suggests that they were probably introduced because of the influence of the Franciscan orders. St. Francis of Assisi was a monk in late 12th century Italy who preached absolute poverty and suggested it wasn’t very Jesus-like for religious people to be rich. After this it became generally accepted that monks couldn’t own anything, which was a bit awkward because obviously the monasteries were really wealthy. Pope Gregory XIV got round this by saying that monks could have the ‘use’ of properties without actually owning them. The exact link between this and the legal concept of ‘use’ in English law isn’t clear, but it appeared here shortly after the Franciscan orders arrived in 1224.

It then became popular due to the unintended consequences of several legal changes brought in by Edward I to try and protect feudal revenues. One was the law (Quia Emptores) which stopped tenants from being able to create sub tenancies, which was a common way of avoiding the mediaeval equivalent of inheritance tax. So they started creating trusts so they could pass on the ‘use’ of the land instead. The other laws (the Mortmain statutes) tried to discourage people from gifting properties to impersonal personal owners like the church. This wasn’t great for the King because the owner would never die and he would lose the dues on them, so he said you could only make this kind of gift if you bought a royal licence. So again, people started gifting the ‘use’ of a property rather than the ownership to avoid the licence fee.

Obviously trusts today work very differently to medieval ones. But understanding the origins of the legal structures that underpin much of the charity sector today highlights two things. First, they have been part of a struggle for power between the state, the church and the wealthy since their inception 800 years ago. And second, the rich have understood for many centuries the advantages that they can get from dividing the ownership of property from the people that are meant to benefit from it.

Background

In 2018 I conducted some research as part of the Civil Society Futures Inquiry, interviewing groups with an explicit mission to make change happen. One theme which came up in those interviews, and which has been echoed in personal conversations with people I know through organising, were the limitiations lots of groups were experiencing in their work around ‘political’ activity. These restrictions were coming from lots of angles: from funders and the Charity Commission, and related to legislation like Prevent or the Lobbying Act.

Examples included groups being threatened with having their funding removed if they opposed the local council, or being unable to access public spaces for events if the topics touched on controversial issues, which limited their ability to create meaningful change and reach out to a wider audience. These experiences echoed high-profile examples such as government ministers criticising the Trussell Trust for saying that food bank use was related to benefit sanctions, and the Charity Commission investigating the Joseph Rowntree Charitable Trust for funding Cage.

The impact on these smaller organisations is less well understood, because the organisations also described being unable to speak publicly about the restrictions they faced – where a big player like Oxfam might be able to ride out being criticised by the Charity Commission for a ‘political’ advert, for small groups this is often too big a risk. So I decided to do some follow up research specifically focussing on this question of how the ‘political’ is being defined in different contexts, and how this limits the effectiveness of small organisations.

I hope to document some of what is happening by interviewing a range of different groups, alongside desk-based research to understand how the definitions of what is political emerged historically. The aim is to find a way to tell the general public something about what’s going on, while keeping the organisations themselves anonymous.

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