THE forthcoming referendum on Scottish independence and the consultation on the Office of the Scottish Charity Regulator’s (OSCR) draft guidance on political activity are giving impetus to an important and lively debate about the extent to which Scotland’s charities are free to engage in the nation’s political conversations.
In fact, charities in Scotland have considerable freedom to engage in these conversations, and in comparison with their English counterparts they have much less complex judgments to make about whether they might be overstepping legal and regulatory boundaries in doing so.
Contractual and funding relationships are actually much more likely to give Scottish charities pause for thought and “chill” their ardour for the conversation than charity law and regulation. Reactions from their donors, volunteers and other supporters if charities are felt to be “coming across too strongly” might also have a far more chilling effect. Charity law and regulation may actually give Scottish charities some resilience in the face of constraints of this sort.
Charities wanting a voice in Scotland’s political conversations must remain within the boundaries of civil and criminal law and adhere to standards set out by bodies such as the Advertising Standards Authority. The Charity Trustee Investment (Scotland) Act 2005, in conjunction with the guidance set out by OSCR in relation to “the charity test” and the draft guidance on political activity by charities, make clear that Scotland’s charities are free to engage in political conversations as long as they pay heed to two or three important points. Their governing instruments must allow them to take part in the conversations. They must ensure their interventions are relevant to their charitable “purposes”. They must not engage in party political activities.
When organisations are granted charitable status, they gain fiscal and reputational benefits, among others. In return, they agree to accept some limits on their political voice. Whether or not that’s a reasonable trade-off is a discussion for another day. To what extent do the Charity Trustee Investment (Scotland) Act 2005 and the guidance set out by OSCR chill the voice of Scottish charities? It is hard to see asking that charities limit their interventions to areas of relevance to their purposes, their charitable mission, as limiting. Why would a charity wish to intervene in areas outwith its experience and expertise, and not relevant to its mission?
It is also hard to see the restriction on party political interventions as limiting. The scope for engagement in non-party political conversations is rich and expansive. Why would a charity wish to engage in a partisan political manner? This would be a high risk strategy even for non-charitable voluntary organisations that are not within the purview of charity law and regulation.
The possibility of charities that over-step the boundaries alienating funding bodies, donors, volunteers and other supporters is much more likely than the risk of losing their charitable status.
There is nothing in the legislation or in the guidance issued that suggests that if a charity has unwittingly overstepped the boundaries OSCR will take anything other than a measured and proportionate approach, working with a charity so that it can learn from the experience and minimise the possibility of future breaches. Of course, if a charity knowingly violates the boundaries and continues to do so, a stronger approach from OSCR could reasonably be anticipated, not least because there could be a ripple effect for the “charity brand” across the Scottish sector.
Rather than seeing the Charity Trustee Investment (Scotland) Act 2005 and the guidance set out by OSCR as quietening their voice, charities have much to gain from adopting a positive approach to the legal and regulatory framework.
By giving charities pause for thought, these mechanisms provide the opportunity for Scottish charities to be really clear about their charitable purposes, about what they want to say and why, and to engage in the conversations from strong and credible positions. It can only be to the benefit of Scottish charities to enter Scotland’s political conversations from an informed position that has been arrived at thoughtfully.
This will mean that Scottish charities are much less likely to engage inadvertently in ways that might be perceived to be party political. It will make their contributions more authoritative and more persuasive as a result.
At a time when the independence and “accountability” of charities is being questioned, and when questions are being raised about the extent to which they really do represent those whose interests they purport to represent, responsible engagement of this sort must go some way to appeasing their critics.
Not only do Scotland’s charities have a voice in its political conversations, the nature of their involvement – at least so far as the legislative and regulatory framework is concerned – is straightforwardly and clearly set out. By comparison with their counterparts in England, they are fortunate that they do not have to wrestle with concepts such as “dominant”, “ancillary to”, and “reasonable expectation of effectiveness” in interpreting the boundaries of their engagement.
Scotland’s charities simply have to attend to the purposes set out in their governing instruments and remain non-party political.
• Dr Eleanor Burt is a senior lecturer in the School of Management, University of St Andrews, where she specialises in the charitable and voluntary sector