Charity Commission and Political Activity: Back into the Fog?

In December 2014 the Charity Commission criticises a major charity (Oxfam) for exposing itself to false perceptions and misunderstanding because of loose language (in a tweet). The Commission’s report on the matter exposes the Commission to false perceptions and misunderstanding because of loose language. Oh dear.

The message for the wider sector as articulated by the Commission in its report includes this:

“Particular care should be taken to ensure that any material does not damage the charity’s reputation, that messages are appropriate and in pursuit of its objectives and do not have any risk of being misinterpreted or perceived as party political (my italics)“.

This is back to the glory days of 1991 (see my first blog).We all know it is impossible to eliminate “any risk” of being misinterpreted or perceived as party political, as William Shawcross must understand better than most from the attacks on his alleged political bias as Chair of the Commission. The only way of complying with this vague drafting is to seal ones lips completely. That is why, today as in 1991, imprecision is dangerous.

I am assured by senior Commission staff that the wording should not be interpreted literally and that in practice CC9 rules OK (until it may be amended). I am sure they are sincere. But in the end it is the Board, not the staff, that calls the shots and they must have taken great care over the wording of such a high profile report on a controversial matter. When you are a regulator, you must expect Trustees and their lawyers to take your words at their face value: it is no good explaining that they are not to be taken literally. These words, absorbed by conscientious Trustees and legal advisers, will add to the chilling effect on political activity.

Good regulation requires giving clear and consistent messages, so that the regulated know what is required of them. The core problem with the Charity Commission’s guidance to charities on political activity in the years up to 1995 was vagueness tinged with negativity, allowing scope for mixed messages, and unpredictable, selective interventions. This was to a great extent eliminated or mitigated in adjustments to the guidance (CC9) in 2004 and 2008. But recently, alas, we have been heading back into the fog.

William Shawcross and his completely new Board took the helm from 2012 onwards. They began to say things publicly that muddled the relative clarity of CC9. Shawcross told the Women’s Institutes in June 2013 that “politicisation” of charities was one of four key dangers to the sector, along with terrorist infiltration, abuse of vulnerable beneficiaries and fraud. Whereas CC9 had a clear definition of political activity, Shawcross was slipping back into imprecision. What did he mean? Did he mean “party political activity” which is outlawed anyway? Did he mean spending much time and resources on political activity in support of charitable objectives, specifically permitted by CC9? Was he re-introducing criteria of “responsible” tone, which had been previously found by the Commission to have no basis in law and therefore dropped in the 2008 Guidance? What was this problem, so serious as to be mentioned in the same breath as terrorism, fraud and abuse? All very unclear, except that the tone was negative.

Then in September 2013 another Board member (Prof Gwithian Prins) told Third Sector Magazine:

“We will also take a view about charities keeping their campaigning within their charitable objects and purposes… Problems arise when charities push the envelope, and some have recently been in the public eye because of this. If a charity campaigns about matters that appear to be outside its objects, then naturally we will look at it. The weather has changed on this front. The public expects charities to stick to their knitting, to use an old-fashioned phrase.”

The bit about staying within charitable objects was entirely in line with CC9. But the allegations about “pushing the envelope”, the “changing weather” and the implication that the proper work of charities – their “knitting” – was to be contrasted with some current political campaigning by charities reintroduced an ill-defined negativism. How many charities did the Commission consider were campaigning outside their objects, who were they, who was doing what wrong? No answer, just a pall of vague doubt. (The same phrase about sticking to knitting was adopted in a clumsier way by Brooks Newmark during his brief and unhappy reign as Minister for Civil Society, tending to blur the distinction between the hostility to charity campaigning of some Conservative Ministers and MPs on the one hand and the supposedly independent Charity Commission on the other.)

In the major row that broke out about the Lobbying Act, the Commission did not contribute to the debate drawing on the principles enshrined in its own guidance, and at one stage Shawcross publicly attributed to the sector the view that an amended Bill was acceptable, whereas substantial parts of the real life sector led by NCVO, ACEVO and many others were very far from satisfied. All this fed an impression that there was a gulf between CC9 and the actual views of the Board, and that at least some of them were itching to revise CC9 in a restrictive direction. This impression was reinforced when the Commission’s new Chief Executive was understood to announce that CC9 was indeed going to be reviewed after the General Election. It subsequently emerged that this is only one possible outcome of the normal review of how charities perform during an Election period, but many within and outside the Commission still expect it, partly depending on who wins.

A period of sustained stability and clarity would be a much, much better idea.

Addressing fears in the sector that the intention of such a review is bound to be restrictive, Commission staff have repeatedly mentioned that a key reason for such a review would be the rapid growth of social media usage. This rationale should be viewed sceptically. Social media growth affects different dimensions of charity life: fundraising appeals, supporter management, reputational issues, not simply or specially political activity. They are cross-cutting, generic issues to do with the coherence with which Trustees and (where relevant) senior staff can safeguard sound messaging, reputation, discipline, consistency and propriety. Message to the Commission: if new guidance is needed at all about the challenges of social media, please do not muddle this with a review of guidance relating to political activity in particular.

Make no mistake: a review of CC9 would be massively destabilising, soaking up enormous time and nervous energy, and divisive. And this time, the churches and other faith charities are no longer Exempt Charities outside the scope of Commission regulation: they are now subject to CC9. Sensible politicians and members of the Board of the Charity Commission should tread very, very carefully in trying to regulate more restrictively what religious organisations believe God is telling them to do and say in order to advance His Kingdom on this earth. Do they want to take on Archbishops Welby and Sentamu on the freedom of the churches to preach the gospel and apply it to the world around us? Or Cardinal Nicholls on the great Social Teaching of the Roman Catholic Church?

So, overall, despite a short term pre-election period of relative calm on this front, we find ourselves headed backwards towards the corrosive vagueness and instability of the 1980s. To have relatively clear guidance (CC9) but then confuse and undermine it through imprecise and negative public utterances and supplementary guidance, is poor regulation. This is good neither for the sector not for the reputation of the Charity Commission. The British public, who owe so much to the non-party political activity of charities, including churches, from the Abolition of the Slave Trade onwards, deserve a lot better.

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