Charities’ work risks being seen as controversial, or even political, by some parts of society. Recent ‘battlegrounds’ in the mire of today’s culture wars have often focused on matters relating to equity, diversity and inclusion (EDI); one example being some charities’ efforts to respond to the murder of George Floyd, or to reassess the colonial history of their assets – and the resulting backlash from some of their stakeholders – and another being fractured debates within and across a number of charities about the interrelationship between gender and sex.
The Charity Commission, an ever-active regulator, is drawn into investigating charities at the request of their critics, and examining the impact of charities’ work on their reputations. Late last year, the commission’s former Chair, Baroness Stowell, went so far as to recommend that charities “leave […] the culture wars out of it” to avoid damaging their goodwill.
Clearly, charities venturing into politics and campaigning must ensure that their activities sit squarely within their charitable objects, and are never party political. However, it has long been accepted that they are able to campaign in pursuit of their purposes, to comment on social and political issues, and to take positions that not everyone agrees with.
Trustees are constantly weighing up different factors when taking strategic decisions. The reputational risk posed by our polarised public discourse is just one of those.
A charity’s ultimate duty is to further its purposes for the public benefit. So, in a campaign to capture the public’s hearts and minds – in furtherance of the charity’s purposes – having an element of controversy may be a risk worth taking. Controversy is sometimes not just an unwanted side effect of the campaign, but the goal itself: to get people talking and thinking about a particular issue and to challenge their preconceptions. That doesn’t mean that it isn’t still important for trustees to weigh up whether the risks are worthwhile, and to consider how to mitigate them – but it does mean that they shouldn’t feel too afraid to speak up.
For some charities, their very purpose might be controversial to some, who disagree with their mission or activities. That controversy does not detract from their position as charitable in law.
The commission clearly recognises the role of charities in public debate, and the difficulties they face. Since Baroness Stowell’s warning about the culture wars – and under the leadership of a new interim chair – the regulator has cleared the National Trust and the Runnymede Trust of alleged breaches of charity law, following complaints by politicians and others. However, in mid September the then Culture Secretary, Oliver Dowden expressed concern that some charities “appear to have been hijacked by a vocal minority seeking to burnish their woke credentials”, announcing that the government is seeking a new chair for the commission who “will restore charities’ focus to their central purpose”. His remarks attracted robust criticism from leaders across the sector.
In regulating charities’ protection of their reputation, the commission cannot ignore the public mood – particularly when it comes to the so-called ‘culture wars’. Polling shows a widespread public opinion that politicians invent or exaggerate the culture wars as a political tactic; the public are as likely to think that ‘woke’ is a compliment as it is an insult (and more likely to not know what it means). The risk of being seen to be ‘woke’ might not always be as grave as it seems.
It is well within a charity’s rights to campaign, to comment on social and political issues, and to carry out political activity in furtherance of its purposes. As public debate about the big issues in society rages on – about race, in today’s world and our history re-ignited by the murder of George Floyd; about climate and our planet; about safeguarding and much needed improvements following the #MeToo movement – charities must continue to play their part.
Of course, to be able to do so, charities must be careful not to burn bridges – with their supporters or the wider public. Trustees might want to give extra consideration as to how to spread their message thoughtfully, persuasively and constructively – perhaps consulting with beneficiaries and donors, engaging with wider groups of stakeholders to test messages, and scenario-planning for adverse consequences. As ever, it will be vital for charities to document their thinking and decision-making, to demonstrate that trustees are appropriately engaged in considering whether a course of action is in line with the charity’s objects, and the wider risks and benefits. But, having taken these steps, charities should not let polarised politics hold them back from doing what they do so well: working for the betterment of society.
This article is taken from our forthcoming publication, Managing in a Crisis. Make sure you’re subscribed to our mailing list to receive it on release. We’ll also be discussing this topic and more at Spotlight: the annual Bates Wells Conference on 22 November – virtual places are available to book now.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of November 2, 2021.