Ever since the idea of the EU referendum was first mooted, the Charity Commission has been asked to issue guidance to clarify the rules of engagement for charities and to expand on our general guidance on elections and referendums, first published in 2011.
Three weeks ago we published guidance for charities specific to the EU referendum, explaining what we expect trustees to consider if they want to get involved.
We wrote this new guidance for charity trustees to explain the thresholds for justifying charity involvement in the debate, and what we expect trustees to consider in their decision-making. Above all, we wanted to remind charities that seeking to influence the outcome of the referendum, like any other political activity, must be a means to support your charitable purposes. You always have to keep in mind that your donors are funding you to carry out the charity’s purposes.
We are aware of some concerns that have been raised about the guidance, and have been asked for greater clarity on some of the wording. Having considered these, today the Commission has made some changes to the wording of the guidance in order to provide greater clarity.
So what do these changes mean? We’ve addressed three main questions:
1. Will any public involvement in the referendum debate necessarily comprise political activity?
The guidance is for all charities, and we believe that in the majority of cases, were they to engage, that engagement could well amount to political activity. There may be exceptions, such as charities undertaking charitable educational activities. We have amended the guidance to clarify the activities to which it relates.
2. Why do you say it will be “by exception” that charities would reach a decision to engage in political activity on the referendum?
In the guidance as it was initially published – closely reflecting the wording in the 2011 guidance on elections and referendums – we said that “it will inevitably be by exception that charities would reach a decision to engage in political activity on the referendum”. We have been asked to explain this further. This is not a new legal test. It merely reflects the fact that, for the majority of the charities we regulate, we expect that the outcome of the referendum will not be significant enough that they would choose to campaign for one result or the other; and where it is, that care needs to be taken in connection with any engagement. We have clarified this.
We have also clarified the distinction we make between different ways to engage in the referendum and the extent of the risk that this will amount to political activity, depending on how the charity engages and the extent of its engagement. It is difficult in one document to provide clear guidance for all charities and to cover all eventualities but we have made a change here.
3. How can charities be expected to prevent their charity from being exploited by a political party or campaigner?
Clearly we recognise that trustees cannot guarantee and be responsible for matters beyond their control, although we do expect them to minimise the risk that the charity is misused. We have clarified this and our advice on the actions of individuals.
These changes to the wording can be seen in the updated version. We hope these changes bring further clarity to those who need it. In response to concerns about how the guidance will be enforced and complaints dealt with, the Commission’s approach will be proportionate and risk-based, as our responsibilities as regulator require.
Before signing off, it would be remiss of me not to acknowledge that there has been some concern expressed about the tone of the guidance. The style and tone of our guidance has undoubtedly changed over the last two or three years, as you would expect in line with the changes to our regulatory approach. We have recently updated other key pieces of guidance, The Essential Trustee and our draft fundraising guidance to take two examples, where our tone and style have similarly changed. Largely this has been welcomed as providing greater clarity to trustees but we understand some see it as a negative approach by the Commission. We won’t be changing that approach, but I hope the changes we’ve made today show that we are nonetheless ready to listen to concerns and seeking to strike the right balance.
You can read the updated guidance here.
Comment by Cecile Gillard posted on
Sarah says 'I hope the changes we’ve made today show that we are nonetheless ready to listen to concerns and seeking to strike the right balance.'
It is very regrettable that this matter was not deal with in a way that avoided the difficulties and serious concerns arising in the first place. Ensuring guidance is good, clear and legally accurate from the outset should be the Commission's aim at all times. That is a proportionate and appropriate approach for a regulator to take.
Consulting and listening - and acting to address concerns - before finalising and issuing guidance material is clearly a key step towards avoiding unnecessary confusion, anxiety, even distress within the charity sector, amongst trustees and amongst the wider public.
It would also, in this instance, have avoided the additional demands that have clearly been placed on the regulator's extremely scarce resources by this review, adjustment and clarification process.