Oh to be in Scotland, now that the referendum’s here…
Should charities have a voice in the forthcoming referendum on Britain’s membership of the European Union? Apparently it depends on where in the UK you are based, with charity regulators in Scotland and Northern Ireland taking a more positive approach to charities getting involved in the process.
According to the Office of the Scottish Charity Regulator (OSCR): ‘Charities in Scotland will want to consider the possible implications of the EU referendum and some may wish to make their voice heard during the EU referendum process.’
It has therefore produced guidance to enable charities ‘to play a significant part in the process, legitimately within the requirements of Scots charity law.’ Drawing on its experience of last year’s Scottish independence referendum, the guidance clearly and concisely explains what a charity can and cannot do. The Charity Commission in Northern Ireland has taken a similar approach
But that other model of a modern charity regulator, the Charity Commission for England and Wales has adopted a very different tone in its guidance. Its view is that charity involvement in the debate should be the exception rather than the rule.
To be fair, it has qualified this since publishing its original guidance at the beginning of March. Then it was suggested that any involvement in the referendum process would be seen to be political activity and therefore restricted under charity law. The new guidance now states that: ‘Such activity will amount to political activity if the engagement can reasonably be seen as influencing the outcome’.
This is welcome clarification, but the tone hasn’t changed. It still appears designed to put charities off getting involved in the debate, rather than enabling them to make their voice heard. The emphasis is entirely risk averse and my personal view is that some of these risks, while very real, have been over-stated.
For example, the guidance suggests that there is a ‘significant risk’ that the charity might be used to promote the views of an individual trustee or staff member. The Commission is right to point out that charities should not be used in this way, but I’m not convinced that there is a more significant risk in relation to this issue than any other. I have worked with many boards whose members come from different backgrounds, have different beliefs and different political persuasions. But the banter in the kitchen is very different from the discussion around the table when those trustees come together to make decisions in the best interest of the charity. That is what good trustees do.
The guidance also makes a big deal about charities that are funded by the EU. Of course, the Charity Commission is right to say that a potential loss of funding is not a reason to get involved in the referendum debate, and charities should be transparent about where the money comes from. But again I think the Commission labours this point excessively – and, to me, the guidance seems to suggest that any charity in receipt of EU funding has an ulterior motive:
‘If your charity does get involved in any political activity connected with the referendum, you should ensure that, during such involvement, you publicly acknowledge the source of your funding so that the reasons for your involvement can be fully assessed. If you do not do so, this could seriously undermine and detract from the quality of your contribution to these very important issues and may attract regulatory scrutiny by the commission.’
The idea that EU funding has created ‘sock puppet’ organisations whose role is to bolster support for the EU itself has been widely promoted by the Institute of Economic Affairs (IEA). But it is an argument based more on innuendo than evidence – and one which changes according to context. While EU-funded charities supposedly just roll over and ask for their tummy to be tickled, those funded by central or local government have a tendency to bite the hand that feeds them (hence the anti-advocacy clause). It would be laughable if the implications weren’t so serious.
I am not suggesting that the Charity Commission has been influenced by the IEA’s views on this issue but, like Caesar’s wife, it needs to be above suspicion if it is to retain the confidence of the sector it regulates. It needs to stand up for the sector’s legitimate right to campaign within the law at the same time as it polices the ‘no go’ areas of political activity.
The Charity Commission’s own guidance, Speaking Out: Guidance on Campaigning and Political Activity for Charities (‘CC9’) gets that balance about right. And so too does the referendum guidance from OSCR and the guidance from the Charity Commission of Northern Ireland.
A healthy democracy is one where different viewpoints can be aired and different voices heard. Given that the referendum debate so far has been largely an evidence-free zone (‘can’t recycle teabags’), there is a crying need for independent voices who can provide well-informed, thoughtful analyses of its potential implications. Let’s hear it for OSCR!