The Charity Commission has issued guidance to charities on the EU Referendum. Flaws in this guidance have been pinpointed by Elizabeth Chamberlain of the NCVO in this warmly recommended blog:
I worry about the poor reputation of the Commission among influential parts of the charity sector: this negative piece of guidance will lower that esteem further. We need to bear in mind that the current Board of the Commission probably do not care as much about the views of the sector as they do about the constituencies whose support they need in Parliament and whom they may identify as representing “the public” : PACAC, led by the Eurosceptic Bernard Jenkin MP, and the substantial proportion of Conservative MPs and right-leaning newspapers, many of them pro Brexit, who are not friendly to large charities generally and their campaigning in particular.
The guidance is fundamentally negative. There is nothing about how charities, with their expertise in particular areas, will be able to enrich the public debate. What an omission, even dereliction! Instead, there is a one-eyed concentration on risks, finger-wagging and, as Elizabeth mentions, recurrent threats.
It is poorly argued. The fact that the scope of the referendum issue is wider than the remit of any particular charity does not, as the guidance claims, mean that it must only be “by exception” that any charity should make a contribution to the debate. Many charities regularly contribute to debate during an election where the issues at stake are just as broad and indeed less specific than “In or Out”. There is no valid reason given as to why any intervention by a charity should be so exceptional. So why should charities take any notice?
Insiders will note that the guidance employs language that was explicitly discarded in the Commission’s current guidance on political activity, CC9, as being confusing and unsatisfactory following consultation with the sector. Political activity should, we are now told in the old discarded language, be “incidental, ancillary or subordinate to” your charitable purposes. Why put the clock back, when the Commission knows full well that political activity can be a fundamentally important part of pursuing your charitable objectives?
The guidance also, as Elizabeth spots, employs the discredited tactic of instructing Trustees to eliminate risks over which they have no control. In the case of its guidance on the Oxfam tweet, the Commission said that Trustees must eliminate all risk of being perceived as party political. This came from a Charity Commission Chairman who, contrary to his wishes, is frequently perceived as party political. In similar vein, the Commission now instructs: “you must not allow” an external political party or campaign to exploit the charity’s intervention for their own purposes. But everyone knows that if you make a public statement any number of interests might try to spin it for their own purposes. I am afraid charities will regard this as nonsense.
It is almost comical to read : “you must be alert to the risk of being perceived to be aligned with a political party or with any particular organised campaign on either side of the argument, and consider carefully how you can avoid this.” Well, if a charity explains why in its view its beneficiaries and cause would be harmed (or advanced) by Brexit, it does inevitably “align” it with others arguing for the same outcome, albeit for broader or different reasons. CC9 accepts that this sort of coincidence is bound to happen and can be accepted. Why go back to muddled pre-CC9 thinking?
Another wretched phrase: you must ensure “the charity maintains its political neutrality as set out in CC9”. But CC9 is talking about party political neutrality. It does not at all recommend political neutrality on issues that affect a charity’s beneficiaries. The precision of CC9 is replaced by dangerous looseness. All these flaws tend in the same direction: repression, negativity. But because they are flaws, in tension with CC9 itself, they are likely to be counter-productive.
The guidance is frankly so poor that it discredits itself. This is not the way to encourage the Commission’s guidance to be taken seriously. And it certainly is not the way to convince the charity sector it should pay for such a regulator. When the fury of the Referendum is history, the bad taste of this guidance will remain.