Politically Correct? Charities, Campaigning & Politics

The relationship between charities, philanthropy and politics has been thrown back into the spotlight in the UK in recent weeks. The announcement of government plans to abandon a raft of key environmental protections has seen major conservation charities including the Royal Society for the Protection of Birds (RSPB) and the National Trust speak out strongly. This, in turn, has led to Tory MPs angrily questioning (once again) the legitimacy of charities getting involved in “political issues”, and the Charity Commission for England and Wales (the regulatory body for the charity sector in those countries) deciding to issue a “reminder” to charities about rules on campaigning.

⚠️😡Make no mistake, we are angry. This Government has today launched an attack on nature. We don’t use the words that follow lightly. We are entering uncharted territory. Please read this thread. 1/13 pic.twitter.com/NAPfIjLZKA

— RSPB England (@RSPBEngland) September 23, 2022

At the same time, critics have suggested that the whole of new Prime Minister Liz Truss’s deregulation-based drive for economic growth is in fact evidence of the potential for philanthropy to exert a problematic influence on our democracy, since it was heavily informed by years of campaigning from free market think tanks such as the Institute for Economic Affairs (which are able to be charities on the grounds of their “educational purposes, and which attract many donations from big, yet often opaque, donors).

This raises a whole host of important questions about how civil society and philanthropy interact with politics within a democracy, such as:

• Does campaigning by charities subvert democracy or strengthen it? If so, how?
• Why do politicians continually challenge the legitimacy of charity campaigning?
• Is the legitimacy of campaigning organisations dependent on how large/broad their base of support is?
• Has the “educational purposes” category in UK charity law become a problematic loophole that we need to close?
• Is the distinction between an organisation having “political purposes” or merely engaging in “political activity” in pursuit of other charitable purposes a useful safeguard, or an unnecessary complication?

Unfortunately, when these questions do become part of mainstream debate, instead of considered discussion of complex issues what we usually get are confident (but not always well-informed) assertions from those with a political or ideological axe to grind. So, in this article I want to take a step back and look at the arguments for and against charities getting involved in politics, to see whether – on balance – we should want more, or less, of it in our society.

What’s the problem? “Charities are becoming too political”

Let’s look first at why it is that critics feel it is a problem when charities like the National Trust and the RSPB speak out against government policy or take a stance on issues that people feel are “political”.

The most basic reason is that some people clearly believe that the role of charities is to address the immediate symptoms of society’s problems by providing direct services to those in need, rather than campaigning for changes in legislation or policy designed to address more fundamental structural issues. The outgoing Chief Commissioner of the Charity Commission Terence FitzGerald put it succinctly in a 1979 newspaper article, when he wrote that: “the role of charity is to bind up the wounds of society. This is what they get their fiscal privileges for. To build a new society is for someone else.” Many today still seem to share his view, and sometimes they will try to marshal historical evidence to back up their opinion; arguing that “in the past charities didn’t get involved in politics” and that it somehow represents an “unwelcome modern development”.

This is, of course, absolute nonsense on stilts. If anything, the history of charities and philanthropy in this country shows precisely the opposite to be true: campaigning for social reform has always been just as important as the direct provision of services. For many organisations, indeed, the two have often been inextricabl; since the work they do meeting immediate needs cannot help but make them keenly aware of underlying structural issues that no individual organisation can solve on their own, and which can therefore only be addressed through pushing for political and legislative reform. Almost all the milestones of social progress that have shaped the history of our country − from the abolition of slavery and the introduction of universal suffrage, to the ending of child labour and the decriminalisation of homosexuality – might never have come about, had charitable organisations and the people who support them accepted the idea that it was not their role to “get involved in politics”.

A more subtle view, and one that you probably hear more often from politicians, is that it is OK for charities to campaign or advocate, but that they need to avoid “straying into politics” when they do so. A good example of this is the former Pensions Minister Guy Opperman, who told an audience at an event at the recent Conservative Party conference in Birmingham that “charities should stop dabbling in politics”. The benefit of this line of argument for politicians is that it allows them to sound like they are in favour of the importance of civil society campaigning (“The suffragettes? Absolute heroes, who helped make Britain what it is today…”), whilst still taking issue with any specific current examples of campaigns that they don’t like (“The RSPB is, of course, free to campaign on issues related to birds, but it shouldn’t be getting involved in economic policy issues such as our decision to award licenses for fracking in this internationally important migratory bird reserve…”) This is in many ways understandable: it is easy to stand up for the importance of civil society’s role in speaking truth to power in the abstract, but when you are the one in power and you are having uncomfortable truths spoken to you it probably isn’t much fun. The temptation is therefore to try to question or undermine the legitimacy of civil society voice; and it takes a strong and principled politician to resist that temptation.

An additional problem these days is that the growing influence of the notion of the “culture wars” has allowed politicians to claim that a far greater range of topics are “political” (and therefore presumably off-limits for charities to speak about). The former Chair of the Charity Commission used her outgoing speech to reiterate a view of this kind, arguing that “Charities can challenge things, charities can shake things up, they can even change the world, but they can’t, and they shouldn’t go out of their way to divide people.” A sentiment that in many ways sounds perfectly reasonable, but which in reality was implied to mean that charities should steer clear of topics that are “divisive” simply because there might be people who disagree with them, and that would therefore become “political”.

To my mind this both a bizarre and a dangerous idea. For a start, why on earth should we expect charities, unlike almost any other type of organisation, to have to please all of the people all of the time? As I pointed out in a previous blog, the history of charitable campaigning shows that there tend to be organisations on both sides of every debate (including those that argued against the abolition of slavery or suffrage for women). Whilst, with hindsight, we can view many of these as being on the wrong side of history, the fact they existed simply reflects the fact that civil society itself is diverse and pluralistic (since it reflects the whole range of views and values within society as a whole). And on the whole that pluralism is a good thing. However, expecting individual organisations to acknowledge and appeal to both sides of every issue in some misguided quest for balance is absurd.

The more dangerous (or at least more insidious) thing is that this argument is so often made in bad faith. Now, it may well be that some people honestly believe that charities have a duty to balance both sides of every issue: I think they are very clearly wrong, but I can agree to disagree with them if it is a genuine, principled view. However, in many cases it seems fairly apparent that claims about the need to be “balanced” are merely a convenient justification for trying to delegitimise charities that are talking about subjects that those in power would rather they kept quiet about. The standard playbook goes something like this:

• Get annoyed that a charity is campaigning on an issue that leads them to be critical of you and your policies.
• Find people who hold the opposing view to the charity on that issue. (Or, failing that, make a sweeping claim about what “the public” thinks without necessarily backing it up).
• Argue that because not everyone agrees about it, the issue must be seen as “political”
• Accuse the charity of being “divisive” and “playing politics” if it doesn’t stop talking about the issue.

It is this tactic that allows politicians to claim that the RSPB is doing something unwarranted by speaking out against planning reforms that will clearly have a negative impact on bird populations, or to criticise the National Trust for taking a stance on removing incentives for environmentally-friendly farming. Yes, this may be absolutely 100% in line with their missions, but these are political issues – so it is vital that the charities don’t make a fuss about them (for fear of upsetting people who presumably have views that are entirely incompatible with these organisations’ mission and work anyway?)

What’s the problem? “Political organisations are pretending to be charities”

The other complaint about charities and politics − the one sparked by concerns about the influence of the IEA and other right wing think tanks − comes from the opposite direction. Rather than claiming that charities are becoming too politicised, the argument here is that organisations which are clearly political are “wearing the clothes of charity” in order to gain legitimacy and tax benefits. In doing so, it is claimed, they become a conduit for so-called “dark money” to enter our political system; and may thereby erode trust in the charity sector as a whole.

We should note at this point an important distinction: between political purposes and political activities. Under existing rules, charities in the UK are not permitted to have purposes that are deemed to be political (e.g., the reform of specific laws or government policies). However, they are allowed to engage in a wide range of political activities (e.g., engaging with MPs, supplying information to inform parliamentary debates, attending party conferences etc.), as long as those activities are clearly designed to further the organisation’s legitimate charitable purpose. (We shall see shortly that this distinction may rest on shakier ground than is often assumed, and that there may be arguments for abandoning it, but for now let’s assume it still holds).

One might assume that there is therefore no problem: as long as charities stick to the rules and respect the distinction between political activity and political purposes, surely everything is fine? And if they don’t, the eagle eye of the Charity Commission will spot them and come crashing down on them like a ton of finely-honed regulatory bricks…. (Just in case you were wondering, that’s a little bit of niche satire for any charity governance geeks aware of quite how large the gap is between the perceived regulatory powers of the Charity Commission and its actual ability to enforce regulations with very constrained resources…).

The problem, however, is that there is a loophole (as is so often the case is with laws and regulations). The loophole in question here is the category of “The Advancement of Education for the Public Benefit” which, as the Charity Commission itself has noted, is “one of the most wide-ranging of the descriptions of purposes listed in the Charities Act 2006”. So wide-ranging, in fact, that critics argue it is easy for organisations that are clearly partisan in nature to claim charitable status on the grounds of producing work that “educates the public”. The Charity Commission is well aware of this issue, and has been for a long time. As far back as 1969, the annual report of the Charity Commissioners noted that:

“Those trustees who feel that their charity should become involved in the political field frequently seek to justify such action as coming within the field of ‘education’… Increasingly we are confronted by attempts to represent as educational a variety of activities which are primarily of a propagandist nature, and which accordingly cannot be accepted as coming within the meaning of the ‘advancement of education’ as it is used in charity law.”

And the Commission occasionally sees fit to take action: whether by issuing regulatory updates reminding all tanks of their responsibilities when it comes to charity law (as it did in 2018) or by giving reprimands to individual think tanks (as it did to the left wing Smith Institute in 2008, or to the right wing IEA in 2019 – though that warning was subsequently withdrawn).

However, there is an enormous amount of subjectivity and grey area when it comes to deciding what is of educational benefit, what might be construed as ‘propaganda’ and what it means in practice for an organisation to demonstrate ‘balance’ (as this 2021 briefing from specialist charity law firm Bates, Wells & Braithwaite makes clear). Hence it is difficult for the Charity Commission to make clear-cut determinations. And when it tries to, think tanks are pretty canny about aligning themselves with campaigning organisations that have wider public support, and arguing that attempts to stifle their voice represents the thin end of a wedge that could go on to imperil the rights of all charities to campaign in future. A spokesman for the IEA, for instance, recently responded to criticism that the organisation was stretching the acceptable boundaries of political activity too far by arguing that “it is not true that charities cannot be political. It is true any political activity must be aligned with their charitable mission. Oxfam can campaign to relieve poverty; the IEA can engage in public education about the role of markets and institutions of a free society in solving social and economic problems.” To many (including me) this seems like a false equivalence, but it is also difficult to put your finger on the exact point at which a cause or an idea become sufficiently outré that educating the public about it should no longer be seen as an acceptable charitable purpose.

This may, of course, be missing the point slightly. If we get too bogged down in theoretical debates over whether the particular world views of think tanks should be allowed to justify their charitable status, this may deflect attention from more pragmatic concerns about what they actually do and the influence they are able to wield (regardless of their motivating ideology). There is a slightly naïve image of the work of think tanks which assumes that all they do is publish reports and hold events, in the hope that the obvious power and merit of their ideas will result in them being adopted by policymakers. Now, this may well be true for some think tanks, but for the small number that are more obviously political (and influential), the reality is that they are much more active in ensuring their ideas get taken up. This may be through meeting with politicians or getting them to attend events (which is something that has often landed think tanks in hot water, as they understandably tend to be engaging with politicians of a particular stripe and therefore risk the accusation of partisanship). Or it may be longer-term influence as a result of their alumni and affiliates moving on to influential positions in government.

Many critics have noted recently, for instance, that a disproportionate number of former employees and supporters of a small number of right-wing think tanks (including the IEA, The Taxpayers’ Alliance and the Centre for Policy Studies) hold senior positions in the current government. This includes Prime Minister Liz Truss’s Senior Special Adviser Ruth Porter, who previously worked at both the IEA and Policy Exchange, and her Chief Economic Adviser Matthew Sinclair, who is the former CEO of the Taxpayer’s Alliance. Indeed, both Truss herself and her Chancellor, Kwasi Kwarteng, have long been prominent supporters of the IEA and have published essays for the think tank outlining their free market views.

(I should make it clear at this point that this problem didn’t start with the current regime. The revolving door between think tanks and government has been around for a long time now: under the coalition and Conservative governments of David Cameron, for instance, many people associated with Policy Exchange ended up in senior positions, whilst under New Labour there were plenty of people from think tanks like IPPR or the Smith Institute finding their way into prominent roles. I should also flag up, in the interests of full disclosure, that I used to work at Policy Exchange a long time ago (between 2007 and 2009, when Labour were still in power) – though I was working solely on philanthropy issues, which were viewed as pretty marginal by everyone else in the organisation, and I can also confirm that I have gone on to hold precisely no positions of importance or influence whatsoever…)

The other practical concern is that think tanks with charitable status may use their political connections as a selling point to attract donors who want to influence politicians, but don’t necessarily want to give directly to a political party. There may be valid reasons for doing this: you might, for instance just genuinely believe in the work that a think tank is doing and want to contribute to a rich “battle of ideas” within society. However, there may be less noble reasons too: for instance, a desire to get political access and influence whilst avoiding the transparency requirements that come with making party political donations (which, unlike charitable donations, need to be declared).

Now, think tanks will strongly repudiate this, and will argue that they never make claims about access to politicians and decision makers, or use these as a fundraising tool. However, I know from the couple of years I spent in that world that this is absolute bobbins. On record, no – of course they won’t say such things. But in informal meetings and chats it is at the very least heavily implied (and often just overtly said). So concerns about think tanks as conduits for the entry of ‘dark money’ into our political system need to be taken seriously in my opinion. (And if you want to read more about the issues around regulating think tanks, and the IEA in particular, then I would recommend reading Andrew Purkis’s blog, as he has been a dogged and meticulous critic of their charitable status for many years).

Why is it good for charities to get involved in political issues?

We have considered so far two separate strands of criticism at the intersection of charity and politics. In doing so, we have hinted at some of the reasons one might take issue with these criticisms and want to defend the right of charities to grapple with ‘political’ issues and engage in ‘political’ activities, but it is worth spelling these out more clearly.

Charities have always campaigned on social issues

As already mentioned, there is a long and rich history of charities campaigning and advocating for social change. Indeed, many of the examples of social progress that we hold most dear were highly dependent on the work of campaigning charitable organisations and their supporters: including the abolition of slavery, the introduction of votes for women, the decriminalistion of homosexuality, the creation of national parks and protected greenspaces, the recognition of rights for disabled people, and many more. This is not necessarily an a priori reason for valuing charity campaigning (just because something has worked in the past, doesn’t mean it is still necessary now, and there may be alternatives available to us in future) but longevity and a track record of success is a pretty good argument for being very careful about devaluing the idea of charity campaigning or questioning its legitimacy.

(Indeed, if politicians want to get into a pissing contest about longevity or legitimacy, they would do well to note that quite a few charities have been around since before the advent of modern political parties, and that many of them have memberships that vastly outstrip the combined membership of all UK political parties. The coalition formed by the RSPB, National Trust, Wildlife Trusts and others in response to the government’s recently proposals, for instance, can lay claim to over 15 million members, whereas the all main UK political parties currently have a combined membership of 846,000).

Keeping the State on its toes

It was assumed by some after the birth of the UK Welfare State in 1948 that there would be no further role for philanthropy or voluntary organisations, because the State would meet all needs “from cradle to grave”. Of course, this proved not to be the case, but many at the time knew that, and argued that there would always be a need for charitable organisations, albeit one that might evolve from their traditional role. A vital part of this role would be to act as part of a system of checks and balances that keeps watch on the State to identify where it is failing to meet the needs of citizens, and pushing it to improve or reform. As a governmental Committee on the Law and Practice Relating to Charitable Trusts (known as the Nathan Committee) put it in 1952:

“Some of the most valuable activities of voluntary societies consist in the fact that they are able to stand aside from and criticise state action, or inaction, in the interests of the inarticulate man-in-the-street. This may take the form of helping individuals to know and obtain their rights. It also consists in a more general activity of collecting data about some point where the shoe seems to pinch or a need remains unmet. The general machinery of democratic agitation, deputations, letters to the Press, questions in the House, conferences and the rest of it, may then be put into operation in order to convince a wider public that it is necessary.”

Countering the “tyranny of the majority”

The point at the end of the above quote about “convincing the wider public” highlights one of the particularly valuable roles that charities play through their campaigning, which is that they can help to overcome the “tyranny of the majority”.

In both direct and representative systems of democracy, minority groups are often prevented from expressing their choices in any meaningful way through standard electoral methods simply because they lack the numbers required to do so. Whilst this remains ‘democratic’ in a strict sense, many argue that it represents a flaw, since it results in an unjust treatment of minority interests.

Charities can act as an important mechanism for addressing this problem, by offering people a means to associate and thereby pool their power, to the point where they are able to exert influence on public discourse, public policy and spending decisions even though they may remain firmly in the minority within society as a whole. The historian R. J. Morris notes that voluntary organisations have throughout history played a vital role in this regard, by giving those within marginalised communities a means of finding and asserting their shared identity, or amplifying their voice to ensure their concerns are heard:

“One major contribution which the voluntary association has made to ordering the complexities of urban and industrial society has been its contribution to the history of ‘out-groups’ groups which were excluded from a significant share in the legitimate structure of power. The middle classes, women and the working people of the labour movement all used voluntary societies, at different times and in different ways, to formulate new identities and values, to experiment with new forms of social action and relationships and to provide support to each other. They all went on to make and sustain a claim for a share in that legitimate power that goes with recognition and status within a dominant ideology, with an easy and uncontested place and open access to the power and resources of the state.”

Pluralism and the “battle of ideas”

The other argument made in favour of charities being able to engage with or campaign on potentially contentious ideas is that this contributes to a plurality of views within society that allows a “battle for ideas” to take place in which alternative views are constantly tested against one another.

Many in the past have invoked this as a justification. Philosopher John Stuart Mill argued that philanthropic endowments could act as a “precious safeguard for uncustomary modes of thought and practice”, and the social reformer Thomas Hare pointed out that “the most important steps in human progress may be opposed to the prejudices not only of the multitudes, but even of the learned and leaders of thought in a particular era”, so endowed charities can therefore act as “important elements in the experimental branches of political and social science” by enabling the promotion of wide range of ideas.  The economist Friedrich Hayek, meanwhile, declared that philanthropy had a vital role to play because “public opinion cannot decide in what direction efforts should be made to arouse public opinion”, so “efforts have to be set in motion by a few individuals who possess the necessary resources themselves or win the support of those that do”.

This justification unsurprisingly comes up a lot when considering the legitimacy of charitable status for think tanks, as they will often point to the role they play in contributing to a rich battle of ideas as a justification for their public benefit. And there is more than a grain of truth in that: in theoretical terms, at least, I think we do all benefit if we have a wide range of views to draw upon about what our society and world should look like.

The challenge comes when translating that in practice, however, as the reality is that not all ideas are given an equal chance of success by any means. If, for instance, the ideas in question challenge powerful vested interests, it seems safe to assume that they are less likely to attract funding than ideas which comfortably support the status quo. There is also a danger of naivete in assuming that everyone genuinely wants to engage with a plurality of ideas and to do so in good faith, as the sad truth is that there are plenty of bad actors who simply want to abuse the notion of intellectual freedom to advance their own interests.

Is the Distinction Between Political Purposes and Political Activities Actually Useful?

We have seen already that in UK law there is a distinction between an organisation having political purposes (which would disqualify it from being a charity) and engaging in political activities (which is OK, provided these are undertaken in clear pursuit of a wider aim that is charitable). But it is worth asking: is the distinction actually useful?

It is often used by charities as the basis for maintaining the ongoing legitimacy of their campaigning work, because it allows them to justify work they may do in the political sphere by demonstrating that it is aligned with (and potentially even necessary for) achieving their core charitable mission. But we have also seen that this legitimacy is potentially threatened by think tanks and other organisations that seem overtly political but use the very broad “advancement of education” category to claim charitable status. So would it be better to abandon the distinction altogether, and allow organisations with overtly political objects to have charitable status?

This is a complex and difficult question, and one where it helps to start by asking why we even have a rule prohibiting charities from having political purposes in the first place. If we could identify some clear principled reason that led to the introduction of the rule, then perhaps it will be clear that the rule itself makes sense and is worth keeping? However, it turns out this is very far from the case.

The rule prohibiting political purposes in the UK can be traced back to a 1917 court case, Bowman v. Secular Society. This concerned a legacy to the Secular Society from a man named Charles Bowman in 1908, which was contested by his heirs on the grounds of being blasphemous and therefore unlawful. The case made it up to the House of Lords (which still served as the highest court in the land at the time). The charge of blasphemy was not upheld, but in the course of his summing up, one of the judges – Lord Parker – asserted that “a trust for the attainment of political objects has always been held invalid”. However, as Michael Chesterman notes in his authoritative 1979 book on the history of UK charity law, Charities, Trusts & Social Welfare, this view was entirely based on a single legal textbook – Tyssen on Charitable Bequests­ – which, as another charity law scholar, Matthew Harding points out, represented “an idiosyncratic view of the extant case law”. It also seems pretty clear that this view in no way represented the reality of how charities had operated for hundreds of years up to that point. Chesterman points out that:

 “The dividing line [between charity and politics] is by no means long-established… nor is [it] self-evident if one takes account of the apparently unchallenged activism of prominent charities in the eighteenth and nineteenth centuries or of the important ways in which charitable activity, at a deeper level, is and has been ‘political’”

Similarly Harding points out that:

“It was far from clear that trusts for political purposes had invariably or even mostly been regarded by decision-makers as invalid… [in fact] the history of Victorian Britain reveals a strong tradition of charities pursuing political purposes of different types, with no suggestion that such purposes were impeded or constrained by charity law.”

Indeed, when you look at the early history of what might be called “modern philanthropy” in the UK, the template of a ‘philanthropist’ (in the form of people like prison reformer John Howard, or the anti-slavery campaigner William Wilberforce) is much more closely associated with campaigning and political agitation than with giving large sums of money. From that perspective, the idea that philanthropy and voluntary activity can be neatly distinguished from “politics” seems like a slightly bizarre modern invention.

Of course, even if Bowman v. Secular Society is the starting point, it is not the final word on the question of the distinction between charity and politics in law as there have been subsequent cases that have added to the body of case law. However, these have not always done much to clarify the situation. One notable case, for instance, is National Anti-Vivisection Society v. IRC (1948), which saw the House of Lords strip the National Vivisection Society of its charitable status, on the grounds that its purposes were in fact political (as the Secular Society’s had been deemed to be, back in 1917). Remarkably, in justifying the decision, Lord Simons proclaimed that “the reason of the thing appears to me so clear that I neither expect nor require much authority”. Which essentially seems like the equivalent of telling a child that the reason for something is “because I said so”, and doesn’t tend to suggest a firm theoretical basis.

The rise of a new breed of campaigning charities in the 1960s and 1970s, such as Shelter and the Child Poverty Action Group gave new impetus for concerns about the lines between charity and politics become blurred. (Once again, one suspects that this was largely due to discomfort and annoyance on the part of government that the adverse effects of their policies were being highlighted and called into question). This led the Charity Commission to issue new guidelines in 1969, which adopted the gently patronising tone of a disappointed parent and chided charities for continuing to get “involved in politics”:

“One contemporary development which has given us some concern has been the increasing desire of voluntary organisations for ‘involvement’ in the causes with which their work is connected. Many organisations now feel that it is not sufficient simply to alleviate distress arising from particular social conditions or even to go further and collect and disseminate information about the problems they encounter. They feel compelled also to draw attention as forcibly as possible to the needs which they think are not being met, to rouse the conscience of the public to demand action and to press for effective public provision to be made to meet those ends. As a result ‘pressure groups’, ‘action groups’ or ‘lobbies’ come into being, but when a voluntary organisation which as a charity seeks to develop such activities, it nearly always runs into difficulties through going beyond its declared purposes and powers.”

Many took issue with this interpretation. In 1976, for instance, the dissenting Minority Report of the Goodman Committee on Charity Law Reform argued that:

“It is not only the right but in fact the duty of charities in many areas to act as political pressure groups, and legislation must end the present uncertainty about this forthwith. The days of confining charities to pouring soup into faulty old bottles should be consigned to the past; such cosmetic philanthropy can in fact be capable of postponing the more fundamental reforms that may be needed. Campaigning for changes in the law is often not only the most cost-effective, but virtually the only policy for organisations… that cannot hope to finance the needs themselves.”

In 1977 Amnesty International went a step further in testing this principle. They set up a trust and applied for registration as a charity, which was refused by the Charity Commissioners in 1978 and then denied by the High Court on appeal. In ruling, the judge, Mr Justice Slade, once again invoked the idea that there was a clear and strong historical precedent for seeing political purposes as inadmissible, but he also made an additional argument – one that has been an important leitmotif of this whole debate. This is the idea that certain purposes cannot be charitable, because otherwise it would be necessary for the courts to rule on whether or not they were of ‘public benefit’, and this would involve making judgements about potentially controversial issues on which there is widespread disagreement (which, it is implied, the court cannot do; either because it simply does not have the capability to make such a determination, or because doing so might undermine the perceived independence of the judiciary).

At first this may sound like a plausible reason to maintain the distinction between charitable and political purposes. However, as critics have pointed out, in reality courts pass judgment on controversial issues all the time. Indeed, as Matthew Harding notes, “in the common law world it is a well-established practice for judges, especially in appellate courts, to indicate that the public would benefit from a law reform of one type or another but at the same time state that any such reform is for the parliament to realise.” Furthermore, the idea that courts and judges cannot rule on the public benefit of causes that could be perceived as political can have deeply counterintuitive (and distasteful) consequences. In the Amnesty case, for instance, the judge, Mr Justice Slade argued that: “The elimination of injustice has not, as such, ever been held to be a trust purpose which qualifies for the privileges afforded to charities by English Law [thus] I cannot hold it to be a charitable purpose now”.  Which seems to be implying that a judge is not capable of determining that injustice is not a public benefit (and that seems… odd, to say the least).

It can also be argued that the very idea that the courts should refrain from ruling on the public benefit of seemingly political causes is itself political because it commits you to a particular ideological view about the role of charities in society. As Chesterman puts it:

“In fact the judiciary, by purporting to withdraw from ruling on the ‘public benefit’ attached to activism within a field of social welfare, is itself acting politically by promulgating a specific and inherently conservative view of the concepts and proper roles of charity and politics.”

Since the Amnesty case, the views of regulators and politicians on the question of political and charitable purposes have evolved somewhat: in 1980, the Charity Commission issued a new set of guidelines on campaigning that were seen as particularly draconian (and almost ruled out the possibility of any kind of political activity by charities altogether). Over time, however,  these were softened through further clarification, and eventually led to the publication of revised regulatory guidance for charities on campaigning and political activity (known as CC9), which still holds today and is generally felt to be a balanced and useful document.

Despite this evolution, however, the distinction between political purposes and charitable purposes still sits firmly at the centre of laws and regulation in this area. The interesting question, to my mind, is: if we were designing the rules from scratch, would this be the case? Would we still maintain the distinction (given that it rests on pretty shaky foundations, as we have seen)? Or would we abandon it?

There are certainly arguments in favour of abandoning the distinction. For one thing, doing so would cut right through all the debates about whether charities are “overstepping the boundaries” and “playing politics”, because they wouldn’t have to excuse pursuing goals that might be deemed political, or expend quite so much energy defending their fundamental right to campaign on issues. For another, it might result in greater transparency, since it would be clearer which organisations had overtly political purposes among their aims (rather than everyone trying to jump through hoops to explain precisely how all of their apparent ‘political activity’ furthers safely ‘charitable’ aims). And whilst this may bring challenges in terms of unintended consequences (in the form of think tanks and the like), perhaps that is merely the price we need to pay? As the Director of the Rockefeller Foundation’s Natural Sciences Division Warren Weaver wrote in 1967:

“If we believe in democracy and in the right to express dissenting ideas, a small amount of pathology must be tolerated in order to maintain the health of the main social body, somewhat as protective antibodies are produced in the human body by injecting small amounts of material associated with disease. The edge of desirable experimentation must continuously be tested with vigour and variety, and can be located only by occasionally crossing it. We accept a small risk to make a large gain.”

There is also an argument that the lines between charity and politics are becoming increasingly blurry anyway, and that by sticking to a rigid distinction between the two we will undermine the ability of charities to play their proper role within society. Many of the major issues facing us today, such as the climate crisis, racial injustice and global equality, are inherently political to some extent and cannot be addressed in any meaningful way without fundamental political and social reform. If we constrain charities by declaring that these issues are ‘political’ and therefore off limits, people will simply look elsewhere;  to new digital social movements or to grassroots organisations that have chosen non-charitable legal forms precisely to avoid having their hands tied in this way. If charities do end up losing out in this way, we shouldn’t think it a problem on the grounds that charities somehow have a right to exist for their own sake; but rather because many of these organisations have deep stores of expertise, large supporter networks and long histories to draw on, and the opportunity cost of failing to make use of these could be huge.

Are there also reasons to think we might want to keep a clear distinction between charities and politics? There may well be. For one thing, as we have already seen, there are already concerns about ‘dark money’ making its way into our political system via think tanks and other charitable entities which make use of the ‘advancement of education’ category of charitable purposes. However, one has only to look across the Atlantic to see how this situation could potentially be a lot worse. In the US, both the history and current state of rules on political campaigning by nonprofits is very different to the UK: the most notable difference being that there is an entirely separate type of tax-exempt organisation, the 501(c)(4) Social Welfare Organization, which is able to engage in political activity. (Though unlike organisations like super-PACs, they are not allowed – in theory, at least – to exist primarily for the purpose of influencing political campaigns). As a result of their lack of donor reporting requirements, many argue that 501(c)(4)s have become a magnet for dark money and raise concerns about the influence they have on democracy. There were also concerns back in 2016, when then-President Donald Trump was threatening to abolish the Johnson Amendment (the piece of legislation introduced by Lyndon B Johnson which prevents regular 501(c)(3) nonprofit organisations from campaigning for or against candidates for elected office), that this relaxation of the rules would result in a vast flood of dark money into the mainstream nonprofit sector and thereby damage public trust. (For more on this, you can read this CAF blog I wrote back in 2017).

The US experience suggests that there might be good reason to have concerns about relaxing the rules on charities having political purposes (although it should be reiterated that US rules are already much more liberal on this front than those in the UK). However, if we look elsewhere, we can perhaps find reason to take a more positive view of what might happen. In particular it is worth taking heed of Australia, where in 2010 the High Court ruled in the case of Aid/Watch Inc v Federal Commissioner of Taxation that “an organisation was not necessarily excluded from charitable status (or its resulting tax concessions) because it had a main or dominant political purpose.” (For more detail on this case and its implications, I recommend this great paper by Chia, Harding & O’Connell). This marked a sharp break with the common law precedent in the UK, which the Australian courts had up until then followed, and the change was subsequently enshrined in the Charities Act (2013). Many charities and nonprofit organisations in Australia felt that this was a positive step in recognising the legitimacy and importance of civil society campaigning and advocacy; though as Krystian Seibert argues in a 2018 report for Philanthropy Australia, there is still a lot further to go to ensure the changes in legislation are reflected in the attitudes and practices of policymakers and funders. It is probably to soon to say with any certainty what the long term effects of Australia’s abandonment of the political/charitable purposes distinction will be, but for now at least it doesn’t seem to have brought about chaos or destruction, so it may be worth looking to as a model for what we might do in the UK if we chose to go down a similar route.

What’s the Upshot of All This?

The ability of charities and civil society organisations to speak out and campaign on issues affecting the people and communities they serve is a vital element of a healthy democracy. This might well bring them into realms that some might deem ‘political’, and may require being critical of existing government policy, but that should be seen as part and parcel of this important role. Attempts to delegitimise charity campaigning by claiming that it is “not what charities do” not only betray a total lack of awareness of the history of charity, but also risk damage to our democracy over the long term.

An organisation’s campaigning legitimacy is more straightforwardly obvious when they are able to point to a large base of supporters or members, as this gives them a kind of democratic mandate. However, as we have seen, this cannot be the only criterion of legitimacy, since charities have also played an important historic role in allowing space for minority groups and views to develop wider public support, which has eventually led to major social and political change. And even where views and ideas never go on to have a particularly wide base of support, there is an argument that just allowing them some space to exist and develop within a pluralistic landscape is good for democracy.

Currently, the involvement of charities in the political sphere is shaped by the idea that we must draw a fundamental distinction between having political purposes and merely engaging in political activity in furtherance of a wider charitable purpose. However, as we have seen, the existence of a broad category of “the advancement of education for the public benefit” within the definition of permissible charitable purposes has created a grey area: one that many feel has been abused, and which they fear has allowed a back door for the entry of dark money into our political system.

So what should we do about this? Should we tighten the definition of what should count as charitable to close the “educational purposes” loophole? Or should we go the other way, and expand the definition to allow organisations with political purposes to be charitable? As we have seen, the distinction rests on pretty shaky historical ground in any case, and there is a precedent for abandoning it in the shape of Australia – so perhaps it makes sense?

I’m not entirely clear what I think, to be honest (which after 7,000-odd words probably feels like a massive cop-out. Sorry). The influence of dark money is definitely something we should take seriously, so if organisations that are ostensibly charities are enabling that here in the UK, that is something we need to be concerned about. However, the bigger problem to my mind is the ongoing threat to the legitimacy of the valid (and vital) campaigning work done by charities of all kinds. Hence, I would be reluctant to go in any direction which potentially placed more restrictions on the ability of charities to campaign. Given that the rule prohibiting charitable organisations from having political purposes rests on such shaky foundations (and is not preventing the issues with think tanks anyway), I would be tempted to say that we should explore much more seriously the potential benefits (and risks) of scrapping it. For now, though, the key thing is not to let misrepresented concerns about charitable campaigning be used as a justification for eroding the vital right of civil society to speak truth to power. Because that is where the real danger lies.