For the second time in three years, the Charity Commission is attempting to clarify its guidance on campaigning to spell out exactly how far charities can go when it comes to political lobbying. But a coalition of sector organisations is predicting that the new draft will do little to dispel confusion.
The coalition, made up of the organisations and people who contributed to the Advisory Group on Campaigning and the Voluntary Sector earlier this year, says that until there is a change in the law there will continue to be misunderstandings about exactly what charities can and can't do. It argues that this lack of certainty means many trustees are opting to play it safe and depriving themselves of one of the most effective weapons in their arsenal.
The coalition is taking matters into its own hands and is calling for the constitutional reform bill, expected in the Queen's Speech on 6 November, to be used to amend the Charities Act 2006 (Third Sector, 10 October). The change would allow charities to dedicate all their resources to political campaigning in furtherance of their charitable objectives, but not to support political parties.
But is such a legislative change really necessary?
Getting things straight
The Charity Commission's guidance provides an interpretation of existing case law. Sarah Atkinson, head of corporate affairs at the regulator, says that the rewritten guidance, which is due to be published next month, will go further than ever before.
"We recognised that the guidance that stated political campaigning must not become 'dominant' and 'should remain incidental or ancillary to the charity's purposes' is clearly confusing," she says.
"It worried people, leaving them thinking that they had to minimise political campaigning. When we rewrite our guidance, we will try to use language that makes it clearer. However, it's not for us to change the law."
Ian Leggett, director of human rights and environmental charity People & Planet and a member of the coalition, sympathises with the commission's predicament, but believes it could go further.
"The revised guidance on political campaigning it is proposing still leaves a lack of clarity, although I appreciate that its hands are tied because of case law," he says. "It would add real weight to our argument if the commission would recognise that there is a legal issue here. It's disappointing that they haven't already done so."
Apart from pushing for a legislative change, says Leggett, the only other way to bring clarity to the issue would be to persuade a charity to take a legal challenge through the courts to the House of Lords, in the hope of setting a new legal precedent.
"That would be risky, enormously time-consuming and hugely expensive - I doubt that anyone would be willing to do it," says Leggett. "We believe that lobbying for an amendment would be more fruitful."
The coalition is seeking to use the constitutional reform bill to amend the Charities Act 2006 so as to allow political campaigning under the public benefit test.
"We want to change the definition of public benefit so that dedicating 100 per cent of your charity's resources to trying to change public policy would be allowed," says Rosamund McCarthy, a partner at law firm Bates Wells & Braithwaite and herself a coalition member. "But promoting the interests of a particular political party would not be."
Greg Clark, the shadow charities minister, has already spoken out against the move on the grounds that it could have a detrimental affect on public trust in the sector (Third Sector, 10 October).
Brian Lamb, a coalition member and acting chief executive of deaf and hard of hearing charity the RNID, vehemently denies this. "Although it might seem like a massive shift, it's a tidying up," he says. "This would damage public trust only if we were asking if charities could work in a party political way."
But Francesca Quint, a barrister and member of Radcliffe Chambers in London, disagrees.
"This is quite a fundamental change, but it is not being presented as such," she says. "It's not just about giving more freedom to charities - it would change the nature of new charities and could have a significant influence on the character of the sector."
Atkinson cautions against making hasty decisions. "As the charity regulator, the commission has to look at the impact that such an amendment would have on public trust and confidence," she says. "We need to open up the debate."