Describing an elephant: the Charity Commission’s historic weapon against charity campaigning

“‘Political’ activity – like the elephant – is difficult to describe but easy to recognise.”

This formed part of the Charity Commission’s 1986 Guidance on political activity. It was risible but also dangerous, because on that basis how were charities to know whether they were doing it? Vagueness was the historic hallmark of the Commission’s guidance, especially up to 1995 but in key respects up to 2008.

So its 1981 guidance began: “As we have emphasised in previous reports, the extent to which it is permissible for charities to promote, support or take part in political activities is not an area in which it is possible to lay down hard and fast rules. Each case has to be considered individually in the light of all the relevant circumstances.” This gave the Commission enormous latitude to intervene if pushed hard enough in a particular case by, say, MPs or a powerful interest group or media headlines, but otherwise to do very little. It was a perfect recipe for unpredictable, inconsistent regulation: just right for the Ministry of the Interior of Turkmenistan, not so good for the charity sector in England and Wales. Some of the specific “Thou Shalt Not”s highlighted in my last blog were damaging enough, but the more serious underlying problem was the pervasive fog of vagueness flavoured with negativity.

Within this generously imprecise framework lay other vaguenesses. Charities were to be “reasonable”, presenting arguments in a reasoned, relevant and responsible way. What exactly did that mean? Another elephant: difficult to describe but your friendly Commissioner would be able to tell you if you were in doubt. It was permissible to “help the Government to reach a decision” by information, argument and rational persuasion, but it was not permissible to bring pressure to bear to adopt, alter or maintain a particular line of action. All clear?

Another manifestation of vagueness was mixed messages, which left Trustees struggling to understand what was meant. Thus, it was OK to exert political pressure in a way that is “merely ancillary to a charitable purpose”.  So political pressure had to be the means to an exclusively charitable end: reasonably clear? But then up to 1995 additional, conflicting criteria were added:  “in general, what is ancillary is that which furthers the work of the institution, not something that will procure the performance of similar work by, for example, the Government of the day”. Really? Why should it not be ancillary to a charitable object to procure action by another agency that benefits your charitable beneficiaries? No answer. Why “must [charities] avoid seeking to eliminate social, economic, political or other injustice” as a means of advancing a charitable objective, if the charitable object required it? No answer. On the one hand it was sufficient for the activity to be ancillary to a charitable aim (if the tone and style were “reasonable”). On the other hand it was not sufficient.

The vagueness was based on the fact that there was virtually no case law to go on. A small Board of Commissioners mostly from a legal background, and perhaps partly insulated from the swirling changes and conflicts that were affecting the life chances of many charities’ beneficiaries, were floundering as they tried to conjure serviceable principles from a virtual void.

This vagueness allowed gross inconsistency in practice. So the Commission grappled with a small number of campaigning charities: OXFAM, War on Want, Christian Aid, Shelter, in response to complaints from certain MPs or powerful lobbies such supporters of  Israel, but whole swathes of the national voluntary sector were simultaneously busy campaigning and putting pressure on Governments and state agencies without the slightest challenge from the Commission and without the slightest intention of stopping doing so. The overall ambiguity permitted a highly selective targeting of a handful of charities running high profile campaigns while ignoring hundreds of others, also deeply engaged in political activity, that were regarded as somehow more respectable and responsible. One example among many was the vigorous campaigning and lobbying by the Council for the Protection of Rural England that stirred up massive opposition among mainly Conservative communities and MPs against the Thatcher Government’s early proposals to relax planning controls over the Green Belt: never a squeak from the Commission, so far as I am aware, whatever parts of its muddled guidance might have said.

One undoubted achievement since the 1980s – until recently – is the greater clarity that has been progressively introduced into the Commission’s guidance on political activity. The old vagueness was a curse. True, because it was so muddled and discredited, and because in practice the Commission was highly unlikely to intervene at all in the work of a large majority of politically active charities – let alone do more than, at worst, censure them – many charities basically decided to ignore it. Many national charities at that time did not hold the Commission in high regard because the Board seemed legalistic and out of touch and went around saying risible things like the elephant analogy quoted above. Experienced national charities knew how to play the game, and they got on with what they felt they had to do without bothering about the Commission too much. (That is why, although the Commission must be robustly independent of the charity sector as well as of the Government, it actually needs the respect of the sector in order to do its job well.) Other charities, however, who were less confident, or who were anxious to follow cautious legal advice, felt the repressive effect on their political activities or were discouraged from contemplating them. And crucially, organisations seeking charitable status encountered unpredictable, frustrating problems if their plans included “political” elements. Like a capricious policeman who forfeits the trust of the community, the Commission of the 1980s and its unpredictable vagueness on political activity created difficulties for the sector rather than supporting its effective operation.

The 1995 version of CC9, published when Richard Fries was Chief Commissioner, did provide some crucial clarification. It was much less negative in tone. It recognised that “Many people think that charities should be allowed and indeed have a duty to campaign freely to change public policy on any issue if it is relevant to their work and if they have direct experience to offer”. There was little emphasis on punitive sanctions: for example, “Political activity by the trustees of a charity would not normally affect its charitable status and be a reason for removing it from the Register…” There was greater clarity that political activity that was ancillary to a charitable objective was in principle permitted, with fewer confusing ifs and buts. Material could include emotional content, though it should not be exclusively emotional, and pressure tactics were also permissible so long as pressure was not the sole tactic. It was permissible to promote policies that coincided with a political party’s, so long as you took care to emphasise the independence of the charity in so doing. The remaining vagueness related principally to the idea of being “reasonable” and demonstrating a “proper sense of proportion”; and to the precise meaning of “ancillary”. It emerged later ( as a 2007 Working Party chaired by Baroness Helena Kennedy and serviced by Bates Wells and Braithwaite discovered) that many Trustees were under the impression that sticking to “ancillary” political activity (that did not define or dominate the charity) meant that they should not spend more than about a fifth of their resources on political activity. These surviving areas of ambiguity were removed or significantly shrunk by revisions of CC9 in 2005 and 2008.

So have we now kissed goodbye for good to the corrosive ambiguity of the past? Alas, no. It is making a notable come-back. The whiff of fog is in the air. The eye-catching specific prohibitions of the 1991 ruling on the Oxfam case are most unlikely to be repeated, but the vagueness tinged with negativity – the historic weapon against campaigning charities – is becoming familiar again. We shall examine this in the next blog.

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