Campaigning: A Question of Politics

How far can charities go with a political campaign? Nathalie Thomas examines the rules, asks how lobbyists work and hears how some think charities should be more transparent about campaigning.

Political campaigning is now an established part of the charity sector scene. Whether it's pushing for a change in the law or trying to gain access to a certain drug, barely a day goes by without one charity or another lobbying central or local government.

There's more to campaigning, however, than gathering a group of supporters and asking them to wave placards. Charities wanting to engage in any kind of political activity, whether it's staging a protest or lobbying an MP, are subject to guidelines and, depending on the preferred method, certain laws.

Most important is CC9, the Charity Commission guidance on the subject, first published in 1995 and updated in 2004. "Until the mid-1990s, it was often not recognised that campaigning was a valid means of engagement for charities," explains Rosamund McCarthy, a consultant with law firm Bates Wells & Braithwaite.

Big charities have the resources to ensure they don't fall foul of CC9 provisions (see panel, right), although this hasn't necessarily insulated them from criticism. The RSPCA, for example, played a pivotal role in the successful campaign to ban hunting. It has driven other forceful campaigns, including recent efforts to prevent a badger cull, but the charity is careful to ensure that political activity forms only a small proportion of its work.

"The vast majority of expenditure goes on providing services," says Ray Goodfellow, chief legal adviser at the RSPCA. In 2005, campaigning accounted for only 7 per cent of the charity's total expenditure - a figure that falls well within Charity Commission guidelines. Despite this, the charity has not escaped censure. Stanley Brodie QC wrote to The Times in February questioning whether the RSPCA was acting in accordance with its proper purposes when it campaigned politically. Brodie's argument was later rejected by Charity Commission chief executive Andrew Hind.

According to Goodfellow, this is an issue all charities that lobby or campaign politically should address. "The first question to ask is 'how is this going to further our purposes?'" he says.

"You have to be confident that you can justify the campaign." He admits that the RSPCA is fortunate to have the means to ensure that its work doesn't fall into any legal or regulatory potholes. "We have an in-house legal department to assist the campaigns team," he says. "That's a big plus for larger charities."

But money isn't everything. Even though its income is little more than 1 per cent of that of the RSPCA, Bowel Cancer UK frequently launches politically oriented campaigns. It regularly challenges the National Institute for Clinical Excellence over the approval of treatments, and it vigorously lobbied the Government for a national bowel cancer screening programme, which was introduced in July this year.

"Campaigning accounts for about a quarter of our activity," says Ian Beaumont, public affairs director at Bowel Cancer UK. Like the RSPCA, the charity is careful to ensure its political activities remain within the regulatory framework.

One of its strategies is to boost a campaign's impact by joining a coalition.

"It's all about partnership working," Beaumont says. Bowel Cancer UK is part of the Cancer Campaigning Group, an alliance of 30 health charities.

It also works with pharmaceutical companies when necessary.

Beaumont says engaging support across political parties also helps Bowel Cancer UK stay on the right side of regulation. When it was lobbying for a national screening programme, for example, the charity rallied the support of about 160 parliamentarians from all parties. They tabled and signed early day motions and asked questions in the Commons and the Lords.

"We do not wish to make political capital out of cancer," says Beaumont.

"Obviously we target the Government because it makes the decisions, but we would never use a campaign as a political tool to attack the Government."

Even though most charities are able to campaign successfully within the CC9 guidelines, many feel the need for greater clarity. Phil Rimmer, business manager at Action on Smoking and Health, part of the Smokefree Coalition that urges a smoking ban, says: "The underlying problem is the way Charity Commission advice is written. It's long and it's dull, but it doesn't actually do very much. You read it and instruct staff and trustees about what it says. Then you and they realise that what you have to do is try to operate within guidelines that aren't really guidelines."

Others agree. Earlier this year, a survey by the Sheila McKechnie Foundation and People & Planet found that charities thought CC9 was ineffective and created uncertainty about how much or how little campaigning charities can do. In response, the Charity Commission agreed to publish a question-and-answer column, designed to address some of the sector's concerns.

But even if CC9 is improved, it's not the only regulation campaigning charities need to be concerned about.

All advertisements, for example, have to adhere to the Advertising Standards Authority's CAP Code, which covers advertising, sales, promotion and direct marketing. The Communications Act 2003, which covers TV and radio advertising, can also throw a spanner in the works, as Animal Defenders International found to its cost earlier this year. Its My Mate's a Primate television advert was deemed too political to broadcast.

Campaigns that use demonstrations as a tool are affected by the Serious Organised Crime and Police Act 2005 (see feature, page 19). Socpa requires anyone wanting to hold a demonstration within a designated area of up to 1km around Parliament to apply for a licence at least six days in advance.

According to Claire McMaster, chief executive of the Sheila McKechnie Foundation, the Act has the potential to deter charities from staging protests - both through fear of prosecution and by thwarting a speedy reaction.

She says: "Because the Act is in its early days there haven't been many prosecutions - but I think the potential is there. The air of uncertainty is leading people to think twice about getting involved in protesting activity."

McMaster is concerned that the introduction of Socpa and other legislation, such as the 1997 Protection from Harassment Act, which limits the ability to protest outside a private address, could signal a shift towards an over-restrictive environment for campaigning charities.

The British Union for the Abolition of Vivisection shares these concerns.

Alison Cowan, development director at BUAV, points out that it was earlier legislation that denied anti-vivisection organisations charitable status.

A test case brought by the Inland Revenue in the 1940s resulted in the ruling that an anti-vivisection stance, whatever form it took, was against the public interest.

The impact is considerable. "Not being a charity brings many, many disadvantages," Cowan said. "What's really upsetting is that our supporters are always offering Gift Aid and we have to explain that they can't."

There are those, of course, who think it's right to scrutinise the political activities of charities. It's not only Brodie who has questioned whether political campaigning falls properly under the umbrella of charitable activity. Former Conservative leader Iain Duncan Smith believes the public is tired of charities campaigning and would prefer to give money to local charities that work directly with the needy.

Nick Seddon, research fellow at the Institute for the Study of Civil Society, doesn't go so far as to say charities shouldn't campaign at all, but he does believe there should be more transparency. "I think there should be a review of how charities are classified according to their level of campaigning activity," he says. "I don't think many people realise how much is spent on lobbyists and campaigns."

Seddon imagines a situation in which a charity receives most of its funding from the Government or another politically slanted source, and then campaigns in accordance with that agenda. "It then becomes very difficult to see how you are doing anything but lobbying the Government for the Government," he says.

Most charities rebut such criticisms and find a way to work happily within the legal restrictions, but McCarthy offers a solution for those that can't. She says: "If you want to be totally untrammelled in what you do, if you want to be able to react in the way you want to react, and if you don't want to worry about the wording on your website and whether it's going to compromise you, you should seriously consider whether it's actually in your best interests to be a charity at all."

THE RULES OF POLITICAL CAMPAIGNING

Charity Commission guidance, known as CC9 Based on case law, CC9 was republished in 2004 after the Government's Strategy Unit advised the commission to reword the original 1995 document.

Most charities agree that CC9 is now much clearer but, without statute law decreeing precisely how and to what extent they can campaign, many still feel they are on uneven ground.

A basic problem stems from definition. "People use the words 'political campaigning' and 'campaigning' interchangeably," says Rosamund McCarthy of solicitors Bates Wells & Braithwaite. "There are different strands to campaigning."

CC9 states that a charity can devote all of its resources on non-political campaigning - public awareness and education programmes, for example - if it is in pursuit of the charity's purposes.

It also states that an organisation "set up for a purpose of advocating or opposing changes in the law or public policy or supporting a political party" cannot be a charity because its public benefit cannot be assessed.

However, where political campaigning is "incidental or ancillary" to a charity's purposes, the commission considers it an acceptable part of charitable activity.

CC9 guidance makes clear that charities can engage in political activity, as long as trustees ensure that it does not become the "dominant means" by which it carries out its purposes.

Advertising Standards Authority's CAP Code Applies to adverts (other than broadcast ones), posters, cinema and video commercials, viewdata services, marketing databases, and sales and advertisement promotions. Requires observation of a range of rules, from truthfulness to protection of privacy.

THE COMMUNICATIONS ACT 2003

This shifted regulatory powers over telecommunications and broadcasting matters to Ofcom, a new combined regulator. It also implemented the EU's 2003 regulatory framework for electronic communications in the UK and amended the Enterprise Act 2002.

Serious Organised Crime and Police Act 2005

Section 132 defines the terms of demonstrating in the designated area (up to 1km around Parliament). The demonstration will be deemed illegal without a licence obtained six days before the event.

PROTECTION FROM HARASSMENT ACT 1997

Harassment is defined as causing alarm or distress to another and could include a wide range of conduct.

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