What Have Charities Ever Done for Us?. Cook, Stephen
became increasingly significant with the steady increase over time in types and levels of taxation. But they were all part of what would nowadays be called the voluntary sector – independent, non-governmental organisations set up and financed by concerned individuals to seek what they saw as the relief of need, the common good or the improvement of their society, and at times pursuing that cause by campaigning for political change.
Charity law on campaigning
But was it legitimate for charities to campaign for changes in the law? Some court decisions in the 19th century indicated that judges thought charities, while disbarred from supporting a specific political party, could have a political purpose. But a definitive change came in 1917, when relatives of the late Charles Bowman challenged the provision in his will that the National Secular Society should inherit his estate.6 In this case one of the judges, Lord Parker, stated that the objects of the Society, such as the disestablishment of the Church and the provision of secular education, were ‘purely political objects’ and ‘a trust for the attainment of a political object is not charitable since the court has no way of judging whether a proposed change in the law will or will not be for the public benefit’. Decisions on what was for the public benefit – a fundamental requirement for charities – were for Parliament, not the courts, it was argued.
The ‘political rule’ established in the Bowman case became, in effect, the law, and was confirmed and extended by decisions in subsequent landmark cases. One of these came in 1948 when the judicial committee of the House of Lords (the precursor to today’s Supreme Court) confirmed the refusal of charitable status to the National Anti-Vivisection Society.7 In this case, ironically, the Law Lords seemed to set aside the Bowman principle that the courts could not make decisions about public benefit, asserting that the benefit to laboratory animals would be outweighed by the detriment to medical research. The second case was in 1981, when the High Court upheld the Charity Commission’s refusal to register Amnesty International, which campaigns on behalf of prisoners of conscience around the world.8
The judgment in the Amnesty case underpinned the guidance to charities, first issued by the Charity Commission in 1995, about restrictions on political activity. The guidance allowed political activity that was ‘ancillary’ to a charity’s work, but ruled it out if it was ‘dominant’ – a distinction that required some arguable judgements. Since then, however, these guidelines have been revised and relaxed several times in the light of political and social developments, most notably after the election of the Labour government in 1997. The most significant revision came after an extensive critical analysis of the law by the Advisory Group on Campaigning and the Voluntary Sector in 2007, when its chair, Baroness Helena Kennedy QC, stated that most people working in charities thought the rules on campaigning were “a minefield of confusion”.9, 10
The Group’s report argued that politics and charity were not different things and never had been: ‘The key areas that charities are involved in, such as health, education and environment, criss-cross into the political.’ In the same year, the government policy document The Future Role of the Third Sector in Social and Economic Regeneration reaffirmed that an organisation with an overtly political purpose could not be a charity, but stated:11
Provided that the ultimate purpose remains demonstrably a charitable one, the government can see no objection, legal or other, to a charity pursuing that purpose wholly or mainly through political activities.
The subsequent revision of the Charity Commission guidance in 2008 affirms that campaigning and political activity by charities can be ‘legitimate and valuable’:12
However, political campaigning, or political activity, as defined in this guidance, must be undertaken by a charity only in the context of supporting the delivery of its charitable purposes. Unlike other forms of campaigning, it must not be the continuing and sole activity of the charity. There may be situations where carrying out political activity is the best way for trustees to support the charity’s purposes. A charity may choose to focus most, or all, of its resources on political activity for a period. The key issue for charity trustees is the need to ensure that this activity is not, and does not become, the reason for the charity’s existence. Charities can campaign for a change in the law, policy or decisions where such change would support the charity’s purposes. Charities can also campaign to ensure that existing laws are observed.
Controversial cases
This guidance comes into play especially during election campaigns, when the Commission monitors what charities are saying and considers complaints. In the run-up to the 2015 general election, for example, it censured four charities whose names appeared (by mistake, they later said) on a list of 5,000 organisations that signed a letter to The Times in support of the Conservative Party.13 In the next general election campaign, two years later, the right-leaning Institute of Economic Affairs (IEA) was given ‘formal regulatory advice’ by the Commission about two publications, one of which proposed what should be in the Conservative Party manifesto, while the other criticised the Labour manifesto; Unity Group Wales, a charity supporting lesbian, gay, bisexual and transgender (LGBT) people, was told to take down Labour Party posters in Swansea; and the National Council of Hindu Temples, which e-mailed members suggesting they should support the Conservative Party, agreed to send a second e-mail asserting that the Council was politically neutral.14
Outside election periods, the Charity Commission concluded, in response to a complaint in 2010, that the Atlantic Bridge Research and Education Scheme was promoting the ‘special relationship’ between the UK and the US in a way that was not compatible with its charitable purpose of the advancement of education for the public benefit.15 The charity had created a Margaret Thatcher Lecture and an award called the Margaret Thatcher Medal of Freedom, and the Commission said it was apparent from the lectures and the recipients of the medal that the charity’s focus was on the late Baroness Thatcher’s view when she was prime minister that the so-called special relationship should be strengthened and promoted. ‘This suggests that the activities of the charity are promoting a political policy which is closely associated with the Conservative Party,’ the report said. Atlantic Bridge, founded by the Conservative MP and former cabinet minister Liam Fox, was told to ‘cease its current activities immediately’ and carry out a governance review. Fourteen months later, it decided to close.
In 2014, the international development charity Oxfam put out a tweet, with a picture embedded in it, to publicise its forthcoming report entitled Below the Breadline. The tweet showed a raging sea with the caption ‘A Perfect Storm, starring Zero Hours Contracts, High Prices, Benefits Cuts, Unemployment, Childcare Costs’. The Conservative MP Conor Burns replied to the tweet, saying that it amounted to ‘highly political advertising’ and he was going to complain to the Commission. The regulator accepted that the charity did not intend to act in a political way, but said it ‘should have done more to avoid any misperception of political bias by providing greater clarity and ensuring that the link to the Below the Breadline report was more obvious’.16
Think-tanks such as the IEA and Atlantic Bridge are often involved in spats about their charitable status. Another case happened in 2008, when the Charity Commission found that the Smith Institute, named after the late former Labour Party leader John Smith, was vulnerable to the perception that it was involved in party politics because it had frequently held seminars at the 11 Downing Street residence of the chancellor of the exchequer.17 A dispute ensued, and two years later the Institute decided to stop being a charity. In 2014, the Commission concluded that the left-leaning Institute for Public Policy Research, in its report The Condition of Britain, had exposed itself to the perception that it supported the development of Labour Party policy.18
Other restrictions on charity campaigning
The 2008 guidance has remained in force, despite periodic suggestions it should be tightened. Fresh restrictions on charity campaigning were, however, imposed by another route. These apply only in the 12 months before elections and are contained in the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act of 2014, known as the Lobbying Act for short.19