The Charity Commission's CC9 guidance of 2004 attracted increasing criticism for its perceived lack of clarity and risk-averse tone, and last year the commission responded by producing a supplementary question and answer document. That wasn't enough for Baroness Kennedy's influential advisory group on the subject, which called for "a change in the interpretation of the law". Shortly after Gordon Brown came to power, the Government's third sector review declared that it too wanted greater flexibility, and revealed that the Charity Commission was taking a fresh look at the subject. Last week, the fruits of the commission's review were published.
In the main, it's a great improvement on the version of 2004, not least because of its positive tone and clear examination of the key questions from almost every conceivable angle. The commission has used the question and answer format throughout, giving a variety of helpful examples. There is a special section for trustees and deliberate reassurance that breaches of the rules are unlikely to lead to a spell in Wormwood Scrubs. It is a genuinely user-friendly document.
The guidance is at its best on the general principles that have not always been clearly stated or understood in the past. It distinguishes between campaigning and political activity, and offers some helpful summaries: it says, for example, that "although organisations that are established to pursue political purposes cannot be charities, political activity may be carried out by charities, but only as a means of supporting their charitable purposes. For the same reason that a political purpose cannot be charitable, political activity can only support, or contribute to, the achievement of charitable purposes".
The guidance might be on more difficult ground, however, on the always vital question of 'how far can you go?' In the previous guidance, that question was answered with the rule that political activity must not become "dominant" and should remain "ancillary" to the charity's activities. This attracted much criticism, not least for its unfairness to smaller charities unable to 'hide' their campaigning under a welter of other work. Neither of these much-maligned words is to be found in the new guidance. What we have instead is the formulation that "political activity cannot be the continuing and sole activity of the charity".
One objection to this might be that it would allow a charity to spend nearly all its resources on political activity, providing it carried out just one other activity, however small, and took the occasional break, however short.
Another might be that the existing case law from 1947 uses the terms 'dominant' and 'ancillary', and if the commission's new formulation were to be legally challenged, it would come up against that fact. A modern court might decide that, given the recent developments in this area, the old words were no longer helpful and the new formulation held good. It might not. Until the party conference season and the election that never was, it looked as if the Government might be prepared to put the matter beyond doubt and legislate. Since then, however, other political priorities have supervened.