'Significant climbdown' by Charity Commission on EU referendum guidance

The regulator has today issued revised guidance on the forthcoming vote, after fielding concerns from charities and lawyers

EU referendum: guidance revised
EU referendum: guidance revised

The Charity Commission has revised its guidance on charity campaigning in the run-up to the EU referendum, a move one sector lawyer described as a "significant climbdown".

The guidance, re-issued by the regulator today, no longer says it would be "inevitable" that charities would become involved in campaigning around the forthcoming referendum only in exceptional circumstances.

Instead it says that it would be "likely" that charities would only campaign on the matter in exceptional circumstances.

Earlier this month, the commission released guidance warning charities that if they chose to campaign in the EU referendum they risked breaching the commission’s CC9 guidance on political campaigning and charity law.

The guidance was criticised by charity bodies for using the wrong tone and by the charity law firm Bates Wells Braithwaite as "misrepresenting the law".

In blog post published today explaining changes to the guidance, Sarah Atkinson, director of policy and communications at the commission, said: "We are aware of some concerns that have been raised about the guidance, and have been asked for greater clarity on some of the wording.

"Having considered these, today the commission has made some changes to the wording of the guidance in order to provide greater clarity."

She said the new guidance would answer questions on whether any public involvement in the referendum would automatically be considered campaigning, whether charities should get involved only "by exception" and how charities should protect themselves from exploitation by political campaigners.

The original guidance warned that public involvement in the debate "will amount to political activity". But the updated version says it will be considered political activity only "if the engagement can reasonably be seen as influencing the outcome".

A briefing issued by BWB last week warned this sentence could have led to educational charities that wanted to hold hustings about education in order to explain the debate being seen as engaging in political campaigning, even if they did not express a view.

The initial guidance said that "tweets by key individuals in a charity or posters being displayed in charity premises which are intended to influence voter behaviour would be clear breaches of our guidance".

BWB argued that it would be "entirely appropriate" for individuals in charities to use social media and posters to campaign if the charity had taken a position, and the new guidance has been altered to clarify that only tweets that "are not in line with the charity’s decided position could risk breaching our guidance".

Despite revisions to the guidance, the Charity Commission has not clarified what it means by its instruction to charities that if they plan to spend more than £10,000 in the campaign they should register with the Electoral Commission as "a non-party campaigner" – this appears in both versions.

Charities are required to register as non-party campaigners in general and devolved administration elections, but in referendums they must instead register as "permitted participants".

An spokesman for the Electoral Commission said: "We have issued guidance on this already – charities should register with us as permitted participants if they plan to spend above the threshold."

One sector lawyer, who asked not to be named, told Third Sector that changes to the guidance and the decision to re-issue it represented a "significant climbdown" by the regulator.

Sir Stuart Etherington, chief executive of the National Council for Voluntary Organisations, said he was pleased the commission had responded to concerns and issued revised guidance, but said: "The change in tone is helpful, but a number of inconsistencies remain.

"On the one hand, it is helpful that the commission recognises there are often factors beyond a charities’ control. However, the new guidance continues to state that charities ‘must not allow’ their positions to be misconstrued.

"The revised guidance fails to recognise that the outcome of the referendum will be relevant to a number of charities and that some will be considerably affected."

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