Following conflicting guidance from the Charity Commission and OSCR on the EU referendum, barrister Francesca Quint outlines her legal opinion on what charities can and cannot say.

Just at the time when the EU Referendum Debate is gathering pace, apparently conflicting guidance has been produced by the Charity Commission for England and Wales (CCEW) and the Office of the Scottish Charity Regulator (OSCR).

This is not because charity law in England and Wales on the one hand and in Scotland on the other is different on this issue. The same rules apply - and also apply in Northern Ireland - and are reasonably straightforward. A political purpose is by definition not a charitable purpose, so a charity cannot lawfully be established to promote a political purpose (or aim, object, objective or end). Nor should it behave as though it were, because that would amount to a breach of trust on the part of the trustees.

Ends and means are distinguishable, however, and there is nothing to prevent a charity from engaging in considered political activity, including campaigning, which is intended to further, and can reasonably be regarded as furthering, or more of its charitable purposes.

Those purposes might be furthered directly by persuasion, as where a charity for the prevention or relief of poverty argues for more generous policies on welfare benefits, or indirectly by raising awareness or stimulating discussion, as where an environmental charity publicises statistics about pollution.

The one prohibition on which regulators are agreed is that it is not permissible for a charity to support a particular political party or a particular candidate in an election.

There is no doubt that to campaign on either side of the EU debate is a political purpose in that it is designed to affect the actions of the government, but the Remain and Leave Campaigns, whilst obviously political groupings, are not political parties as such.

Moreover, even though prominent individuals may stake their political reputations on persuading voters to support one or other side, they are not candidates and are not taking part in an election. This appears to be the aspect which OSCR has stressed in its guidance on the matter.

The general principles which should guide all UK charities whose trustees are interested in entering the debate are that:

(i)    the decision must be a reasoned one, based on what the trustees rationally perceive to be in the charity’s best interests, including the protection or enhancement of its reputation;

(ii)    the trustees’ personal inclinations and those of senior staff should be disregarded, and where an individual trustee or staff member is actively committed to one or other said in the campaign in a personal capacity, the charity must not be associated  with his or her activity in that regard; and

(iii)    any activity decided on for the charity, and its cost, should be proportionate to the importance of the issue to the charity’s work and the likely effect of its involvement. The more important to the charity that the UK should leave or remain in the EU, the more likely it is that the decision can be justified, and the greater the resources which it can justifiably devote to the project.

Any one charity is unlikely to be affected by the outcome of the Referendum in more than a handful of respects, but if the area in which it is affected is sufficiently important to its work it is legitimate for it to campaign in favour of the side whose success would bring about better outcome for the charity in that respect.

Of course there may be circumstances in which the same charity would benefit from one outcome in one respect and the other outcome in the other respect. In that case the trustees may feel it unhelpful to involve the charity in supporting one side or the other but might instead choose to express a more nuanced view or raise awareness of its purposes by providing relevant information in relation to the question. The guidance from the CCEW appears to focus on the need for careful decision-making.

Ultimately the question, as always, boils down to whether the trustees have conscientiously acted in the charity’s best interests, and. if they are able to show that they have considered the pros and cons and reached a decision based only on matters which are relevant to the charity’s purposes and financial circumstances, it is unlikely that they will be criticised by any reasonable regulator.

Francesca Quint is a barrister at Radcliffe Chambers