Andrew Purkis examines William Shawcross' statements on campaigning, and says the Commission needs to be respected by the sector if it is to police it effectively.

On 21 April 2016, NCVO announced in a tweet that the chair of the Charity Commission, William Shawcross, had written to its veteran chief executive Sir Stuart Etherington,  including this passage:

“Let me say first that I wholly agree with you on the importance of charities being involved in advocacy in relation to their activities. Charities have a long and distinguished history of involvement in public debate leading to significant legislative and social changes in society. Such advocacy is a crucial element in a thriving democracy. However, as you now, the law sets limits on such involvement and it is the Commission’s responsibility to issue guidance to help trustees be aware of the relevant law”.

The question arises as to why William Shawcross has failed to give voice to this belief for over three years of damaging negativism on this very subject?  

Let us briefly recap the Commission’s controversial record in this area since late 2012, when Shawcross was first appointed. His very first speech as chair, to Acevo, praised charities for their role in speaking out on behalf of their beneficiaries. That was the last really positive statement until last week.

The next thing we heard was that Shawcross’ new board had targeted “politicisation” as one of four key threats to be tackled along with fraud, infiltration by terrorism and possible sexual or violent abuse of beneficiaries in a speech to the Women’s Insitutue in June 2013. He never did explain what he meant by politicisation, and we moved into a period of imprecise negativism and uncertainty (familiar to old hands from the Charity Commission of the 1980s and half of the 1990s).

There was the notorious remark first coined by Commission board member Gwithian Prins, then picked up by the minister for civil society Brooks Newmark MP, that charities should “stick to their knitting”, with the threat that, as Prins put it, “the weather was changing” for campaigning charities. There was a prolonged, destabilising cat and mouse game as to whether CC9 was to be revised (clearly in a restrictive direction) or not.

It only became clear by about November 2015 that the Commission had no current plans to revise CC9 after all.
In further interventions, Shawcross allowed that campaigning was legally permissible but must be “responsible”, again without defining what he meant. In December 2014 we had the Commission’s report on its investigation into alleged political activity by Oxfam, triggered by its tweet about a “perfect storm” affecting poor people in the UK. This generally exonerated the charity of significant misdemeanours but included the infamous sentence in its lessons for the wider sector that “Particular care should be taken to ensure….that messages are appropriate and do not have any risk of being misinterpreted or perceived as party political” – which as Shawcross must know better than most can only be achieved by saying nothing at all.

We have more recently endured the Commission’s guidance on charity participation in the EU referendum. It was negative and repressive in tone, a marked contrast to the positive and balanced guidance produced from the same body of law by OSCR in Scotland and the parallel body for Northern Ireland. Charity lawyers Bates, Wells Braithwaite demolished the guidance from a legal perspective, NCVO was prompt and persuasive in its criticisms, and such was the outcry that the guidance was hastily revised to soften some of the more contested points. The core of all the criticism was precisely that the guidance lacked any statement of the kind that Shawcross has now made in his letter to Sir Stuart: there was no inkling that charities might have real expertise with which to add value to the debate (which of course they already have and will continue to do).

Recall also that we heard no concern from Shawcross about the potential chilling effects on charitable advocacy of the Lobbying Bill. We heard nothing when Eric Pickles first broke the Compact with his anti-advocacy clause in his department’s grants, nor later when the intention to roll out this repressive clause right across Whitehall was announced and ministers like Matt Hancock kept describing charitable advocacy as the opposite of, and a diversion from, good causes and improving people’s lives (in complete contrast to the view now expressed by Shawcross).

Why the change?

So, after failing in this way for three long years to defend the public interest in charities’ contributions to democratic debate, why is Shawcross suddenly declaring himself to be a devoted admirer of charitable advocacy? I do not know, but here are some background factors that may be relevant.

Firstly, the political context has changed. Shawcross has not been one to speak out in a manner clearly independent of his ministerial paymasters. When ministers were irked by religious and secular charities speaking out against cuts to public services and welfare benefits and other policies, perhaps helping to threaten their chances in the forthcoming General Election, the political atmosphere was conducive to Shawcross’s finger-wagging about “politicisation” of charities.

Once the Conservatives had won the election, however, ministers felt more secure on that front. Moreover, they had observed that those recommending charities and churches to stick to their knitting had got into hot water. centrist and ‘One Nation’ politicians do not like antagonising well-known charities and churches too much or for too long.

Long before Shawcross’s recent letter, the minister for civil society, Rob Wilson, had begun to say that charities were welcome in the political space so long as they stuck to the rules in CC9. And in late September 2015 Wilson wrote: “As a nation we can be justifiably proud of our history of campaigning for charitable causes both in this country and abroad….It is not the government’s intention to prevent charities from supporting, engaging or influencing government policy. Campaigning is a legitimate and valuable activity of civil society and we support the charity sector’s right to campaign”.

Even when the government announced plans to roll out its noxious anti-advocacy clause in government grants across Whitehall, they were at pains to say that they were keen to uphold charities’ freedom to campaign, just not with public money. So the crude negativism of “sticking to knitting” was becoming politically out of date.

On top of this, the EU Referendum campaign changed the chemistry of this issue, along with so many others. Politicians in favour of remaining in the EU were conscious that charities (secular and religious) could be weighty and influential advocates, and the Prime Minister himself called on charities to make their voices heard as part of the debate. In that context it seemed particularly inept for the Commission to put out such negative, restrictive guidance on charities’ participation.

Someone clumsily leaked it to the Daily Telegraph in advance so they could proclaim a “crackdown” on the sector before charities had seen it.  Completely out of synch with the PM’s known views, this was the background to the hasty revision of the guidance. The minister for civil society went out of his way shortly afterwards to welcome pointedly the contribution of charities to the debate. It hardly helped when Prof Gwithian Prins was found to have published a militantly pro-Brexit essay, leading to an investigation by the Commission and the Cabinet Office as to whether he has broken the Code of Conduct for members of public bodies. The Commission had become uncomfortably isolated politically. This may be partly why Shawcross is belatedly falling back now on the positive position on advocacy articulated by Rob Wilson seven months’ ago.

A second, related point is that the finger-wagging about politicisation was not really going very well after three years. The Commission was failing to articulate what it actually meant. Each time it tried, they hit problems. It had been reviled for the “sticking to knitting” formulation. It had encountered rather a lot of strong arguments and illustrations as to why charitable advocacy is actually an important element in a thriving democracy. It had moved towards revision of CC9, then back again (for now at least).

All this time, it was paying a heavy price in the loss of respect of an influential part of the sector, which cherishes the advocacy role of charities (in the manner Shawcross now says he does himself). “Politicisation” quietly disappeared from the list of the Commission’s key challenges to the sector, but the difficulties kept accumulating. Perhaps there were considerable strains within the Commission, where many staff and some members of the board certainly value charities’ advocacy role? Who knows what internal stresses and dysfunctionalities lie beneath the shambolic history of the EU referendum guidance? So the costs of negativism were substantial. That may be another factor in Shawcross’s change of emphasis.

Commission needs to be respected to be an effective policeman

Is there, thirdly, a dawning recognition that, even if you define the Commission’s job simplistically as that of a policeman of the charity sector, you cannot be an effective policeman without the respect and confidence of those whom you are trying to police? In this area of political activity, there is not so much that the Commission can effectively do across the whole sector by finger-wagging, vague criticism and truncheon-waving.

Soft power and influence are vital ingredients. This concern is reinforced if there is to be even a distant prospect of larger charities paying for the Commission in future. Perhaps Shawcross is finding out that the respect of a significant part of the sector that turns over £40.5bn and employs 820,000 staff is considerably more important to good regulation than he, and those who appointed him and his subsequent new Board, assumed.

Nobody said it was an easy job to chair the Commission, especially when the politics change around you. Nobody fair would deny that the current board and staff of the Commission have done some excellent work in different dimensions. But the issue of charities’ political activity has been a running sore. If Shawcross and his team were to stabilise their position on the platform of CC9, integrating rather than ignoring his most recent words to Sir Stuart, that would be a big step forward.