Читать книгу What Have Charities Ever Done for Us? - Cook Stephen - Страница 13

3

‘Stick to your knitting’: the curbs on campaigning

In 2013 Gwythian Prins, a member of the board of the Charity Commission for England and Wales, made a remark during an interview that became a catchphrase and a talking point in the voluntary sector.¹ Sitting in the impressive drawing room of the Athenaeum Club in London’s Pall Mall, he argued that some charities were getting too deeply involved in campaigning. “The weather has changed on this front,” said Prins, a historian and specialist in defence affairs. “The public expects charities to stick to their knitting, to use an old-fashioned phrase.”

The remark signalled a renewed focus by the regulator, supported by some politicians, on the vexed question of whether charities should be allowed to campaign or get involved in politics – a question that has been controversial since Victorian times. Prins’s clear implication was that charities should stay out of politics and confine themselves to the relief of distress. The contrasting view is that charities have always tried to eliminate the causes of distress – that William Wilberforce, for example, didn’t achieve the abolition of slavery by providing soup kitchens for slaves. The late Stephen Lloyd, an influential charity lawyer, argued in 2014 that charities are ‘necessarily and inevitably’ caught up in politics:²

If politics are not concerned with poverty, injustice, climate change, the distribution of wealth, human rights and education, what are they for? And since these, and many other issues, are the essence of charitable purposes, it is inevitable that charities will engage with contentious political issues. It goes with the patch.

This chapter examines how the boundary between charities and politics has moved back and forth in modern times as political attitudes have fluctuated and the law has been developed and reinterpreted. In the second decade of the 21st century the pendulum swung towards a tighter regime, and many charities featured later in this book – especially those involved in the kinds of causes mentioned by Lloyd – have learned to tread carefully to stay out of trouble.

The history of charity campaigning

The simple relief of need was the principal function of charities in mediaeval times, when monasteries and the Church provided almshouses, hospitals and schools. These were financed by donations from a population that saw charitable works as a way of securing salvation in the next world. Charitable institutions became more secular after the dissolution of the monasteries by Henry VIII: the rising mercantile classes and the new gentry created by the redistribution of Church property discovered that ‘they could create institutions of social change and reformation with their own wealth and charity’.³ This flowering of charity lasted until after the Civil War of 1642–51 and included the establishment of many schools, four great London hospitals and charities for the poor and destitute that were often administered by parishes or guilds.

In the 18th century, however, there was a shift in the nature of charity because of concern that private bequests deprived families of their inheritance and were poorly administered.⁴ In the middle years of the century, ‘associational’ charities flourished – charities that raised money from the public, using the tools of the emergent popular press, in order to tackle social problems such as abandoned children and prostitution. Examples were the Foundling Hospital, set up by the sea captain Thomas Coram in 1739 and still in existence as the children’s charity Coram, and the Marine Society (now the Marine Society and Sea Cadets), founded in 1756 to train destitute boys as sailors. Nearly 1,400 charitable schools were founded in England and Wales between 1710 and 1800, many by the Society for the Promotion of Christian Knowledge and the Sunday school movement.⁵

Towards the end of that century, however, the Industrial Revolution was gathering pace and campaigning as we would recognise it today, directed mainly at the government and legislators, began to take shape. The gradual but momentous social changes resulting from the Revolution led in the 19th century to mass poverty and ill‑health among workers in the mills and factories of the Midlands and north of England. Charitable organisations responded as well as they could, but better communications, developments in political thought and revolution in France and America also prompted more people to think it was possible and right to address the causes of social distress as well as the symptoms.

Social reformers and philanthropists, often motivated by religious feeling and supported by churches, led the way and succeeded in pushing through many of the social reforms that we now take for granted. These include the abolition of slavery, better conditions in factories and mines, the protection of children and animals, universal adult suffrage, penal reform, education for all, the abolition of the death penalty and the decriminalisation of abortion and homosexuality. The successful 21st-century campaigns to ban foxhunting and smoking in public places follow in this tradition and feature in later chapters.

In some cases the vehicle of the reformers was a charity; in others, the means were friendly societies, co‑operatives or simply unincorporated associations. Bodies that were not charities did not benefit from the advantages – or suffer from the restrictions – of charitable status, including the exemption from most taxes, which 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 Its purpose is ostensibly to prevent wealthy individuals and corporations influencing the democratic process, but it affects all organisations that might campaign, including charities. It requires them to register with and report to the Electoral Commission as ‘non-party campaigners’ if they spend more than £20,000 in England, or £10,000 in other parts of the UK, on ‘regulated activities’ that can ‘reasonably be regarded as intended to influence voters’. There are strict limits on how much registered campaigners can spend on regulated activities – canvassing, public events, transport costs and so on.

The law caused consternation and uncertainty among charities. Does spending include staff costs? What qualifies as communication with the public, as opposed to supporters? How should costs be calculated when working in coalition with other charities? The 300 pages of guidance produced by the Electoral Commission to answer these and other questions was pronounced ‘incomprehensible’ by Sir Stephen Bubb, at the time leader of Acevo.²⁰ For the 2015 general election, there were 12 charities among 68 non-party campaigners registered with the Electoral Commission, including the gay rights charity Stonewall, the RSPCA, the Woodland Trust and the Salvation Army, all of which were familiar with campaigning work and big enough to take the extra bureaucracy in their stride. But there was also evidence that the law was having a chilling effect. “Lots of my clients are downing tools,” said Chris Priestley, a charity specialist at the law firm Withers. “They have taken the view that with the administrative burden of trying to track spend, and the fear of being on the wrong side of the law, the simplest thing is not to campaign.”²¹

After the election, the Commission on Civil Society and Democratic Engagement, set up by a broad coalition of charities and NGOs to investigate concerns about the Act and chaired by the former Bishop of Oxford, Lord Harries, concluded:²²

It had a negative impact on charities and campaign groups speaking out on crucial and legitimate issues ahead of the election … Charities and campaign groups reported to us that they found it difficult to know what was and was not regulated activity, and as a result many activities aimed at raising awareness and generating discussion ahead of the election have not taken place.

The government asked the Conservative peer Lord (Robin) Hodgson to review the workings of the Act, but cited lack of parliamentary time when it declined to act on his proposals.²³ The Labour Party pledged to repeal the Act, which remains a source of grievance for many charities and infrastructure organisations, including the NCVO, Acevo and CAF.

The government followed up the Lobbying Act with further initiatives on campaigning which charities found even more worrying. Shortly before the 2015 election, the then secretary of state for communities and local government, Eric Pickles, told Parliament that the IEA, one of the think-tanks mentioned above, had “undertaken extensive research on so-called ‘sock puppets’”:²⁴

“They have exposed the extensive practice of taxpayers’ money being given to pressure groups and supposed charities, in turn being used to lobby the government and parliament for more money and more regulation. This is an issue which needs to be addressed. My department has set an example to the rest of Whitehall by amending our standard grant agreements to impose a new anti-lobbying, anti-sock puppet clause.”

After the election returned the Conservatives with a small majority, the junior Cabinet Office minister at the time, Matt Hancock MP, emulated Pickles by announcing that all government departments would be required to insert a clause in all grant agreements, spelling out that the funding could not be used for activity intended to influence Parliament, government or political parties.²⁵ His statement again referenced the IEA research ‘exposing the practice of taxpayers’ money given to pressure groups being diverted to fund lobbying rather than good causes or public services’. It went on: ‘Taxpayers’ money must be spent on improving people’s lives and spreading opportunities, not wasted on the farce of government lobbying government.’

When it was pointed out in Parliament by the then shadow charities minister, Anna Turley, that Hancock had recently received a donation of £4,000 from Neil Record, founder of a currency management company and chair of the IEA, Hancock replied that he had had no discussions with the IEA about the announcement and “it is right that taxpayers’ money should be spent on the things for which it was intended, not on ensuring that lobbyists can take politicians out for lunch”.²⁶ The Cabinet Office also issued a statement asserting that the decision ‘to end the farce of government lobbying government’ had been taken ‘entirely on the advice of civil service officials’.²⁷

Hancock’s proposal raised the hackles of the voluntary sector as rarely seen before. Sir Stuart Etherington, then chief executive of the NCVO, said it amounted to charities being required to “take a vow of silence”. It was potentially more damaging than the Lobbying Act, he said, because it was a matter of policy rather than legislation, and therefore more difficult to challenge.²⁸ “That’s why you have to draw a line in the sand, because otherwise it might become more problematic – these guys aren’t going to stop on this issue,” he told a conference.

The fear among charities was that the proposal would prevent organisations in receipt of government funding from taking part in what they regarded as normal activities beneficial to all concerned, such as raising policy questions, hosting visits by MPs, presenting research findings to Parliament or contributing to the general policy debate.²⁹ An intensive backroom struggle with the Cabinet Office went on for several months and culminated with a threat by the NCVO to initiate a judicial review of the policy.

This prompted the government to back down, to the extent that the proposal was revised and more carefully worded.³⁰ The new guidance still prohibited paid-for lobbying and ‘undue’ attempts to influence policy using government funding, and some sector bodies, such as the National Association for Voluntary and Community Action (Navca), remained suspicious of it. Crucially, however, it allowed for what the sector regarded as ‘legitimate influencing activity’ and the change was regarded by Etherington as a victory:³¹

Our principal concern with the original clause was that it was counterproductive and would have meant grant-funded charities were unable to provide policy-makers with crucial insight that improves legislation, regulation and public services. This fundamental flaw has been recognised by government and the new guidance is crystal clear in saying that activities such as raising issues with ministers and civil servants, responding to consultations and contributing to the general policy debate are not only permitted but actively welcomed.

Successes despite restrictions

In summary, then, campaigning has been, and seems likely to continue to be, something of a minefield for charities. But relatively few charities choose to get deeply involved in sustained campaigning, especially on the national political stage; in the words of Gwythian Prins quoted at the start of this chapter, most of them more or less stick to their knitting, in the sense that they are involved exclusively in uncontroversial community, philanthropic or relief work in the UK and abroad. But the minority that do campaign persistently, or are involved in a mixture of relief work and campaigning, depending on current circumstances in their area of concern, are constantly under scrutiny, susceptible to challenge by politicians, censure by the regulator or legal restrictions. Governments since 2010 have, when pressed, acknowledged the importance of the campaigning role of charities in principle, but the record suggests that they were simultaneously inclined to restrict it. Some campaigning organisations, including Greenpeace, Friends of the Earth and Amnesty International, have chosen over time not to be charities in order to avoid the restrictions, or have been denied charitable status by the Charity Commission. Some of them have set up subsidiary charitable arms to provide education and research, follow other permitted charitable purposes or raise funds.

Whatever the recent arguments about charity campaigning, however, the fact remains that many beneficial changes in the law in the late 20th and early 21st centuries were the result of charity campaigns – some lasting for years – in alliance with sympathetic parliamentarians. The Royal Society for the Prevention of Accidents (RoSPA) and the Consumers’ Association, for example, both campaigned successfully to make it compulsory for people to wear seatbelts in cars from 1983; RoSPA and the road safety charity Brake were also involved in the campaign to ban drivers from using mobile phones from 2003. Kidney Care UK was involved in the introduction of the kidney donor card, the precursor to modern donor cards, in 1971; a coalition of charities including the Child Accident Prevention Trust and the Children’s Burns Trust were behind the change to building regulations in 2010 that made it compulsory to fit thermostatic mixer taps in new bathrooms; and a coalition of charities including the Campaign to Protect Rural England, Keep Britain Tidy, the Marine Conservation Society and Surfers Against Sewage helped to bring in the tax on plastic bags in England in 2015.

Whether they are charities or not, campaigning organisations are the part of the wider voluntary sector that forms the awkward squad – dissenting, protesting and fighting for their beliefs by political and other means. Sir Stephen Bubb, former chief executive of Acevo and founder of the think-tank Charity Futures, argued in a lecture in 2017 that campaigning has been an essential function of charities and other voluntary organisations in the modern era:³²

“The last 50 years have confirmed the role of charity and civil society in driving change and campaigning against injustice. We can all point to the campaigns that we like, or indeed don’t. The diversity of the sector is demonstrated in such crusading. The Countryside Alliance wants foxhunting back while the RSPCA and many others do not. Looking at many of the major social advances of later years, it’s been relentless and effective charity action that has delivered, from clean beaches and protected woodland, to mandatory seat belts and no smoking in public buildings, access to abortion, gay rights, disability … On a plethora of issues, charity lobbying has driven public sentiment and government reaction.”

The next four parts of this book illustrate and analyse the work of charities under four headings, including ‘Improving lives and communities’, ‘A junior partner in the welfare state?’ and ‘Preserving the past, preparing for the future’. But the first of them – ‘Changing the world’ – uses detailed case studies to amplify the subject of this chapter: campaigning.