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
