Last week the law firm Bates Wells Braithwaite issued a detailed and persuasive analysis of why it considered the Charity Commission’s guidance on the EU referendum to be confusing, contradictory, inconsistent with other commission guidance and a misrepresentation of the law.
The commission has now reissued the guidance with a number of changes and published an explanatory blog. It is a significant climbdown, although the blog characterises it as "responding to requests for greater clarity". Crucially, the bald statement that involvement in the referendum campaign "will amount to political activity" has been significantly qualified. The assertion that charity involvement in the campaign will "inevitably be by exception" has become "likely to be by exception". The wording about risk management and use of social media has also been toned down.
These changes are more than just the provision of greater clarity. They are corrections, and BWB and others who objected have done the sector an important service by persuading the commission to make them. It is alarming that the commission, which people rightly expect to be the guardian and oracle of charity law, could have got itself into this position. Normally it is famously careful to the point of pedantry over its wordings and definitions, but in this instance that seems to have gone out of the window. It had initially argued that the extra guidance was unnecessary, and when this document suddenly appeared late in the day it looked impulsive rather than considered: so it has proved to be.
There is also the question of the changes that have not been made to the guidance: the impractical statement remains, for example, that exploitation by others of a charity’s position "must be avoided". More significantly, however, the guidance still contains the assertion that political activity by charities in furtherance of their purposes must be "incidental, ancillary or subordinate" to those purposes.
This is at variance with the commission’s general guidance on political campaigning, CC9, from which these words were removed at its last revision in order to make the message more comprehensible and permissive. The fact that the words have been left in the revised EU referendum guidance strengthens the view that elements in the commission consider CC9 at variance with the law and would ideally want to revise it again and tighten it up. Unless and until that happens, there are now two apparently conflicting sets of guidance. This creates a chilling uncertainty for charities.
One can only speculate about the internal factors and political pressures that might have led to all this, but the net result does not exactly enhance the commission’s standing as an authoritative regulator. And if you’re expecting contrition, don’t: the explanatory blog concludes on a note of defiance, saying that the style and tone of commission guidance in recent times have been seen as some by negative, but are not going to change. Fair enough – the sector already has got the message loud and clear about robustness and all that; but talking tough needs to be coupled with getting it right.