Campaigning: How far can you go down the political route?

The rumbling argument about campaigning by charities reaches a high point next Monday, when four heavyweight contenders engage in a debate in front of a voluntary sector audience at the House of Commons.

Here they give a taste of the arguments by answering four key questions, and on the opposite page we reproduce some key texts on the subject.

Baroness Helena Kennedy

QC and chair if the advisory group on campaigning and the voluntary sector

- Do the rules on campaigning by charities need changing?

They are not fit for purpose. The main difficulty is the broad charity law definition of what constitutes "political activity". It involves activity that seeks to change the law and to influence public policy. It also encompasses campaigning to reverse the decision of a governmental authority. The latter could include a human rights organisation putting pressure on a foreign court to release a prisoner of conscience. Because of this wide definition, many charities fear that expenditure on political activity could cross an ill-defined threshold into being dominant.

- Do you think the campaigning rules, which are based on case law, can be altered without legislative change?

The goal of the Advisory Group on Campaigning and the Voluntary Sector is legislative reform to change the definition of "political activity". But the Charities Act 2006 puts on a statutory footing the advancement of human rights and the prevention of poverty. Charity law recognises that different charitable purposes give scope for lesser or greater political activity. The act extends this. It is hard to see how to prevent poverty without addressing economic and political causes. And the advancement of human rights involves engagement with state actors.

- Should charities be allowed to dedicate all of their resources to campaigning?

The rule that charities can engage in political campaigning only if it is not a dominant activity penalises smaller ones. They might do a tiny amount of campaigning, but it could still be unlawful. In the same way that trustees can use all of their resources to deliver public services, trustees should enjoy the freedom to use all of their resources to influence public policy. Service delivery that fails to achieve full cost recovery is minimising the potential taxation burden. This is not seen as being political, whereas campaigning to change the burden of state responsibility is.

- In practice, would there be a difference between a charity giving all of its resources to political campaigning and having a political purpose?

Yes, because a charity would still have to satisfy the public benefit test. A non-charitable, political-purpose organisation could spend its money on political campaigning without consideration of whether this was reasonable. Even if a charity used all of its resources for political campaigning, this could still not be an end in itself, because the decision must be based on a reasoned case, reviewed and justified. The campaigning would have to be furthering a clearly charitable purpose: for example, the advancement of health.

Brian Lamb

Director of Communications at the RNID

- Do the rules on campaigning by charities need changing?

Yes. They are based on case law that is arcane and out of step with charities' practice, the expectations of the public and charity supporters. They do not recognise the changed context: charities support civic engagement that fills the democratic deficit opened up as the public has become disenchanted with traditional politics. Charity Commission guidelines have emphasised the considerable degree of latitude that charities already have in campaigning, but the rules disadvantage smaller organisations and leave uncertainty.

- Do you think the campaigning rules, which are based on case law, can be altered without legislative change?

The best approach would be to broaden the definition of political activity to ensure that charities could not be penalised for the legitimate pursuit of their charitable objectives. This would need legislation but it would be a relatively simple change. Trustees should still be held to account using the same principles of effectiveness that would be applied to any other charitable activity. The public could decide to what extent they wished to support charitable causes if they had a problem with the way the charity was pursuing its aims.

- Should charities be allowed to dedicate all of their resources to campaigning?

A charity will rarely want to dedicate all of its resources to campaigning, but it is difficult to see who is better placed than trustees to make this decision. In any other area of charitable activity, it is up to the trustees to decide how an organisation deploys its resources to meet it objectives. The same principle should apply to campaigning. The crucial issue is what activities will create the most impact and achieve its aims. If this is through campaigning, there should be no argument against this, as long as the ultimate purpose remains achieving a charitable objective.

- In practice, would there be a difference between a charity giving all of its resources to political campaigning and having a political purpose?

The real question is the fear that charities would in some way become politicised in a party political way. No one is arguing for the freedom to be party political. Further, the public benefit test means that charities would have to ensure that all their activities met charitable purposes set out in the Charities Act. These would exclude groups ranging from the British National Party to CND and many in between, because they would not meet the test. Trustees would still have to show how their decision to pursue their aims met one of their charitable purposes.

Francesca Quint

Barrister specialising in Charity Law

- Do the rules on campaigning by charities need changing?

There is no need for legislation because the legal principles are clear. It would be undesirable to attempt to codify their interpretation, because this would hinder future development. However, the commission's guidance is being updated and clarified, and I support that wholeheartedly, remembering that it is guidance, not law.

- Do you think the campaigning rules, which are based on case law, can be altered without legislative change?

I do not consider that the case law is out of date. There is so much of it. It is certainly arguable that some of the newly defined charitable purposes (such as the prevention of poverty and the advancement of animal welfare) provide more scope for trustees to undertake political activity in support of them. This is one reason for updating the guidance.

- Should charities be allowed to dedicate all of their resources to campaigning?

For most charities, most of the time, I think it would be a mistake. The credibility of a charity when undertaking a political campaign in support of its objects is helped by the perception of its knowledge and experience of actually working with beneficiaries. Without that, there is no distinction between a charity and any other pressure group. It would also be difficult to judge whether the organisation was truly focused on its charitable purposes.

- In practice, would there be a difference between a charity giving all of its resources to political campaigning and having a political purpose?

It is easier to describe the distinction than to recognise it in practice. The more political activity a charity undertakes, the more likely it is to be operating for political purposes, even if its literature says otherwise. There would be scope for abuse if the guidance did not explain the need for restraint. It would be a waste of resources for the commission to look at every case individually. The problem can easily be overcome by the use of a separate, non-charitable body working alongside the charity.

Greg Clark

Shadow charities minister

- Do the rules on campaigning by charities need changing?

The existing rules already allow charities to run campaigns, including political campaigns - which is exactly what many charities already do, and very successfully. The only thing charities aren't allowed to do is devote most or all of their resources to political activity on a permanent basis. This maintains a vital distinction between charities and political lobby groups - safeguarding the trust that the general public has in the charitable sector.

- Do you think the campaigning rules, which are based on case law, can be altered without legislative change?

Allowing charities to devote all of their resources to permanent political activity would require a change in the law - as the Charity Commission has made clear. The commission's guidance on the law as it stands was issued in 2004, with questions and answers published this year. With the Government insisting on a third rewrite of the guidance in the space of three years, it looks suspiciously as if ministers are trying to wheedle the commission - which should be independent of political influence - into changing the law by stealth.

- Should charities be allowed to dedicate all of their resources to campaigning?

Charities are already allowed to dedicate 100 per cent of their resources to non-political campaigning. Political campaigning is a different matter - but even here a charity can devote all of its resources on a temporary basis if this serves the charity's purposes. However, if political activity takes over completely, those core charitable purposes are being left behind, and the Charity Commission would be left in the absurd position of having to decide whether a purely political outfit served the public interest or not.

- In practice, would there be a difference between a charity giving all of its resources to political campaigning and having a political purpose?

There'd be no difference at all. Charities would be allowed to become pressure groups, and vice versa. Political organisations would apply for charitable status - and many new outfits would be set up to take advantage of the associated tax breaks. A diverse and lively political culture is good - but it isn't what most people would regard as charitable. As for party politics, there is a risk that charities could become tangled up in the funding of covert party political activity - running campaigns that do not mention a party by name, but which advance its policies.

- Those wishing to attend the debate, organised by the NCVO in association with Third Sector, should email chief.executive@ncvo-vol.org.uk. It takes place in committee room 12 at 6pm.

 

The Charity Commission rule

 

A charity may choose to devote up to all its resources to non-political campaigning to further its purposes.

However, when the campaign is of a political nature (seeking to advocate or oppose a change in the law or public policy), trustees must ensure that these activities do not become the dominant means by which they carry out the purpose of the charity. These activities must remain incidental or ancillary to the charity's purposes. What is dominant is a question of scope and degree on which trustees must make a judgement."

- CC9: Campaigning and Political Activities by Charities, Charity Commission, 2004.

 

What campaigners say

 

A charity should not have limits placed on the resources that can be committed to political campaigning activities. A change in the interpretation of the law to remove the dominant and ancillary rule would be of public benefit, where the purposes are otherwise charitable."

- Report of the Advisory Group on Campaigning and the Voluntary Sector, April 2007

 

What the Government says

 

It is surely possible, in a well-run charity, for political activity to be 'dominant' within a charity and yet still enable it to further its charitable purpose. Provided that the ultimate purpose remains demonstrably a charitable one, the Government can see no objection, legal or other, to a charity pursuing that purpose wholly or mainly through political activities."

- Third sector review, Cabinet Office, July 2007.

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