Using the law to campaign (without breaking it)

Some charities do not feel they need to campaign to achieve their mission. Many charities feel they must campaign to achieve their charitable aims. Despite the mood in recent months that charities’ right to campaign could be undermined, there is overwhelming support for and evidence of charities legitimately speaking out. Charity law and regulation is permissive towards campaigning and can guide organisations, giving trustees the confidence to campaign within the law and achieve a lasting, positive impact on the lives of people they support.

Recently, in his speech at an event on welfare reform, our Chief Executive Sir Stuart Etherington passionately re-asserted the right of charities to campaign, “It is right that, although we may not take political sides, charities must challenge policies if they believe them to be unjust.”

Just a few weeks ago a speech by George Osborne implied that churches, charities and campaign groups have ‘vested interests’ when defending the benefits and tax changes. We believe this to be fundamentally wrong, it is right and proper that charities speak out, and have raised this directly with the Treasury.

The Charity Commission regulates charities and provides guidance (CC9) for organisations that wish to campaign to further their charitable purpose. Rather than restricting charities’ campaigning activities, CC9 provides guidance on the boundaries within which charities should campaign, “All charities are united by having a vision of a better society… Often they speak for those who are powerless, and cannot make their case themselves. Sometimes charities confront extreme social injustice, which they will want to tackle head-on”.

Speaking to the recent Certificate in Campaigning, Caroline Cooke, Head of Policy Engagement and Research at the Charity Commission said that charities have “considerable freedom” to campaign to achieve their purposes, within the legal and regulatory guidelines. She clarified that campaigning can directly further your charity’s purposes, political activity can only support them. Campaigning and political activity are a means to an end.

A range of legislation exists which charities must be aware of as it may have an impact on decisions they make about their campaigns, such as those restricting public demonstrations. Charities must also adhere to Advertising Standards Authority regulations. But the law also offers a range of tools or mechanisms through which charities, and others, can gather evidence and challenge decisions, action and inaction.

Making freedom of information (FOI) requests is an example of where people can request information from publicly funded organisations that work for the welfare of the whole population. Campaigners can use the act to gather evidence, find out what options were considered on an issue, what actually happened and to find out about any lobbying by opposing interests. There are costs associated with making a request and Harmit Kambo at SMK has some useful tips for campaigners looking to use this. “Make the request as specific as possible and consider limiting the request to specific aspects of the issue”. An authority does not have to answer a question if it means creating new information and can charge you for costs of sending information. Before you make an FOI request, take a look at the Directory of FOI Requests to see whether this information has been requested before – this could save you lots of time and effort! For more tips on using FOI, we have produced a free guide on Your Right To Know.

Judicial Review is another legal instrument which can be a very powerful tool to campaign. Richard Stein, Partner at legal firm Leigh Day & Co, talks passionately about how to use Judicial Review “…judicial review is a process by which the courts review the lawfulness of a decision made (or sometimes lack of decision) or action taken (or sometimes failure to act) by a public body.” Richard acts principally for campaigning/community groups and individuals challenging decisions. He says that the starting point is often “does this decision seem outrageous?” If the answer is yes, then do not delay because cases must be brought promptly within weeks of the decision. Whilst judicial review can be very costly if the claimant is unsuccessful but if a claimant wins the case it can make huge strides in achieving your campaign objectives. However, there are ways charities may be able to fund a judicial review claim, including Conditional Fee Agreements (no win no fee), Protective costs orders, applicable in cases where the court is satisfied that the claim is of public importance and it is in public interest to have the issues litigated, for instance. Legal Aid may be an option. Seek advice from a public lawyer about your funding options before deciding whether to pursue a judicial review. However, there is some concern that recent consultation on Legal Aid may lead to restrictions on funding for judicial review.

Despite the mood in recent months that charities’ right to campaign could be undermined, Charity Law, regulation and legal instruments themselves can support charity campaigning. Charities can legitimately speak out and trustees can feel confident that existing law and regulation is not restrictive, but provides the framework through which charities can confidently campaign  to achieve their charitable aims and a lasting, positive impact on the lives of people they support.

Sarah Gilbert runs the Certificate in Campaigning and a series of breakfast seminars for campaigners and people across the sector who want to campaign.

Connect with Sarah on Twitter.

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Sarah Gilbert Sarah Gilbert is an experienced campaigner. She is an independent consultant and runs projects for NCVO on campaigning and influencing, including the Certificate in Campaigning and Leadership in Campaigns. She also coaches campaigners, has guest lectured for Roehampton University, and is a member of the advisory board for the University of Westminster's MA in Campaigning, Communications and Media. Sarah sits on the Campaigning Effectiveness Advisory Board and writes blogs, articles and tweets about how to influence people and the sector’s role in campaigning.

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