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.
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‘political activity’ is about trying to change a policy or law, or to preserve an existing policy or law if it is being repealed or amended.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.