Examination of Witnesses (Questions 40-59)
GREG CLARK MP, MR IAN LEGGETT AND MR BRIAN LAMB
26 MARCH 2008
Q40 Paul Flynn: We were looking at lobbying as well.
Mr Lamb: For sure. Certainly when I wrote my book one of the key issues was there was a lot of uncertainty and self-censorship about how far charities could engage in lobbying work and that kind of political activity. That has changed over the last 10 years and the new guidance is very helpful in drawing a clearer distinction between campaigning, which is about broader public engagement, and political campaigning, which is about changing legislation, policy and working with MPs. My guidance was always that, first, you have to work out exactly what it is you are trying to do and then who the people are who can really influence that and how they can do it, and then only go to MPs if they are the ones who can make a difference, but the charity should have the confidence and the ability to engage with the political process at the level of MPs and ministers and government. When I was writing there was a huge amount of nervousness, even in 1997, about how far that was really legitimate and it was only on the back of the then revision of CC9 that people were even beginning to get a sense of confidence that this is really possible. I remember, going back even five years before then, that there was a lot of concern within the charity sector at one point that the then government was going to put more restrictions onto charity campaigning, not less, so it was coming out of that background that it was seen as quite innovative to lobby MPs. For example, I can still remember in the early 1990s hardly any charities, for example, went to party conferences because it was felt that that was probably a kind of political engagement that was inappropriate because in some way it might be party political. I remember when the disability lobby first had a stand at political conferences in the early `90s it was thought to be rather radical and revolutionary, and I remember before we were allowed to go to the party conferences for the different parties in different ways we were all brought in and questioned about what were we hoping to achieve while we were there, and it was pointed out that those were not occasions when we should fund raise. So historically, relatively, working with MPs in this very public and very open way is relatively recent.
Q41 Paul Flynn: Your charity itself is well-defined, well-understood, but you are advising other charities. Would you say to them that they should set up all-party parliamentary groups here, that they should engage lobbyists from an outside body to lobby on behalf of another charity, or whether they should approach MPs directly?
Mr Lamb: It is very difficult for me, either with my RNID hat on or as a campaign advisory group, to say there is only one way in which charities should carry out their business. They are the best judge of that. I would say I have always been a champion of the fact that, with the right training and skills within the sector, and that is certainly why I am working with NCVO and the Sheila McKechnie Foundation also do this—that it is possible to train people within the charity sector so they can do their own lobbying, and there are very few things that as of necessity any charity need go to a political consultancy for, for example. I think it is much better on the whole if charities establish their own relationships with MPs and with ministers, and have experienced professional staff to be guided by inside their own organisations. Having said that, some of the commercial companies sometimes go to agencies and there are reasons why from time to time, if you have not got the experience in-house or you only do a limited amount of campaigning and, therefore, cannot afford to have full-time staff, there might be times at which you would go to commercial agencies to get experience or advice that you have not got in-house, but I have always been a champion of charities trying to build that expertise up themselves. If you did service provision you would not necessarily go to Serco or Capita or one of the other big management consultancies to do that for you; on the whole you would try to build it up yourself and only when absolutely necessary go to outside agencies to help you.
Q42 Paul Flynn: Mr Leggett, have you any views on the best way to campaign?
Mr Leggett: Essentially the purpose of People and Planet is to create, if you like, a generation of active citizens, so the way we try to do it is to actively involve our students so they do engage in the political process, and it is a really healthy thing. So instead of me lobbying Greg or somebody I would prefer that students from the local sixth form in Tunbridge Wells or the university nearby or whatever would do it themselves, and we would spend a lot of time on training and giving people that confidence so they would engage with political parties and their MPs. That for me is an essential requirement of an active society where active citizenship is treasured. Could I come back on the question you raised earlier about good works and public benefit? I am not sure I would agree with Greg that essentially what the public expects from charities is a rather slightly dated notion of good works. A survey that was done at the beginning of this process showed that 64% of a random sample selection of the public thought that spending money on trying to achieve change through either advertising or public lobbying was good, so I think there is a changing notion and it goes back to the point Brian has made that the concept of charity and what charities do has changed a lot in the last 20 years. There is now a much more ready acceptance of inclusion and a broader stakeholder society, and that is true across the board, and people's views about how a charity should spend its money. Interestingly, a question was asked about economical ways for charities to spend their money, and the most effective way was lobbying government over other organisations. That was regarded by the public as the most effective way to spend money.
Q43 Paul Flynn: The point you make, which we all agree with, I think, is that perhaps part of the reason why the rise in trust in charities has happened is because of the collapse of trust in politicians themselves, and you have painted this picture, an alarming one, which is that if we do have restrictions on contributions to political parties it seems a real possibility that someone giving two and a half million pounds to one party now and who is then restricted to fifty thousand or something even smaller then gives it to an organisation that is devoted to the Primrose League, if it still exists, or the Canonisation of David Cameron Society! Fewer restrictions then would apply to the political parties. Is this a real possibility for you, and do you think the charity law is robust enough to stop that happening?
Greg Clark: It is a possibility. But just on Ian's point it is important the Committee should be aware that there is no contention between us that campaigning and political campaigning is not right and proper for a charity to do. My point of difference is whether campaigning should be allowed to be the only thing that a registered charity does. I am involved in campaigns, as we all have ourselves been, on behalf of charities. But I do think that it is a danger. If you look across the Atlantic, as I said in answer to Gordon, we have not tested this yet because the law, as it stands, has restricted a charity being set up to be wholly or exclusively devoted to campaigning, but you see in the United States attack ads, for example, as they are known, funded by groups of people who are not donating to the party but who clearly have a partisan purpose in mind, so I see that there and I think that there are groups here who perhaps might be frustrated by either disclosure or any future limits that there are on political donations and who might see charities as being a backdoor way to achieve their objectives, and I do think if that were to happen it would be corrosive of the reputation that charities rightly have in this country.
Q44 Paul Flynn: Do you have any charities which agree with your point of view?
Greg Clark: Stonewall, for example, who are a fantastic campaigning charity. They wrote to me unsolicited to say that their view was that the law as it stands and the restrictions are relevant and appropriate.
Q45 Chairman: What I do not understand is that if, say, Brian and his organisation and his trustees decided that the interests of deaf people were to be advanced better by political campaigning as a dominant activity than through simply providing what they provide, who are you to gainsay that?
Greg Clark: First, an organisation like Brian's with a longstanding reputation and scope of interest in their client group is never going to be within the frame of this guidance anyway: it is never going to be their dominant activity. It has always been accepted that for a temporary period, if there is a bill going through Parliament, they are an organisation who can mobilise to campaign against that. The point I am most concerned about is the point Paul raised, whether, if you were to change the regulations in the future, you could have established organisations benefiting from a charitable purpose that were not organisations like Brian's but were set up to campaign politically who were enjoying the reputation that charities enjoy and some of the privileges in terms of tax relief, and that would be a bad thing.
Q46 Chairman: You began by wanting to re-assert the dominant/ancillary point; now it seems to me that your position has rather moved and you are wanting to say that organisations should not be charitable if they are exclusively engaged in political activity, and I understand that, but a kind of mix determined by the organisation, whether Brian's or anybody else's, seems to be a sensible position and that is what the Charity Commission is saying.
Greg Clark: The case law is, and the Charity Commission are clear about this, that political activity cannot be dominant, and I think my point of issue with the guidance is that it detracts from that rather than asserts it.
Q47 Chairman: It does not: it says: "an organisation which wishes to carry out its campaigning work primarily through political activity could not become a charity."[12] It could not be clearer.
Greg Clark: But it says, equally, that this means political activity cannot be "the continuing and sole activity of the charity."[13] I agree with you, I think it needs to be consistent, and the point of consistency should be the settled case law. Now if, as the campaigning groups say, there is an argument to be made too that the law is ancient and needs to be replaced then replace it, but in that document at one point it says it cannot be the sole activity and another point it refers to dominance, and the perception that the sector has had is that the dominance/ancillary rule has been dropped when actually it has not been dropped because it cannot be because it is the law and the Charity Commission is there to interpret it.
Q48 Chairman: This is why the guidance is so subtle and sensible, is it not?
Greg Clark: It is rather more confusing than the previous one which reported the fact, inconvenient though it might be for its critics, that the law says that political activity cannot be the dominant activity of the charity. That is the fact.
Q49 Chairman: Ian, when you were talking earlier on you said you thought that participation was good and a kind of public benefit, someone might say, in that case, why not enable parties to be charities, because parties are the great vehicles for public participation, public participation is public benefit, so why this hang-up about political parties? Why not just make them charities as well?
Mr Leggett: There is a clear distinction in most people's minds about what is a charity and what is a political party. Whether or not there should be some public funding for political parties is to some extent the issue there because one of the defining characteristics of a charity is that it benefits from the public purse in terms of tax relief. You could say that something that would improve the vitality of our democracy would be stronger political parties at grass roots level where they have the resources and the means to campaign as they want to, which I think is a slightly different question, but I am very comfortable in terms of the report that we draw a clear line between funding and activities in support of a political party, which I think is party political and not a charitable purpose—
Q50 Chairman: But it could well be, on your argument, that if participation in public life is a public benefit and, therefore, sweeps away any restrictions on charitable activity, then political parties will fall squarely under that umbrella, and you want to change the law so why not go the whole hog?
Mr Leggett: I had not anticipated that question; it is an interesting one. It is probably fair to say that the perspective I come from in terms of wanting a much more activist society is that, over the last 25 years that I have been involved in charities, it is true to say, and it is the point Brian was making earlier on, that there is a much stronger, vibrant, engaged charitable sector now that is willing to get involved in public policy debates. To that extent in terms of civil society that is thriving in Britain in terms of the number of charities that are registering and people actively involved. You then have political society, so to speak, expressed through political parties which is arguably on much shakier ground, and what I think is important is to try to create much more of a relationship so that people involved in this will want to be involved in political party activities. That would be a good thing, frankly.
Q51 Chairman: But the Helena Kennedy argument says she is not interested in all this because of her involvement in the Power Inquiry, which is all about how people are turned off political life but very engaged with the voluntary and campaigning sector.[14] Her conclusion from this is to remove all the restrictions on the voluntary sector to remedy the problem with political life. Well, I think that is fraught with difficulties, not least because it writes off political life, but also it meets the objection I am putting to you that if that is the case why not sweep away political parties?
Mr Leggett: I am not suggesting we do sweep away political parties and all become charities; I think it is really important that there is a clear distinction between the two. Equally, however, it would be healthy for our society to have a much more vibrant, bigger bridge, if you like, between civil society and political society, and at the moment that bridge is quite a narrow one.
Mr Lamb: Helena will have to speak for herself but as a member of the group I do not perceive what we were trying to do in the report as going quite as far as you have now suggested. For me it was a much more tactical attempt to take one particular issue, around the definition of political activities within charity legislation, and change that one element of that. We were very clear in terms of the report that we did not want that to extend as far as party political activity, and we did not want it to extend as far as changing the overall objectives of a charity or removing public benefit. I understand the sense in which Ian has used public participation as being a public benefit, but it is certainly my understanding within the report that we never went as far as saying that should be an extra public benefit and I would draw the line there personally, for the kind of reasons you are giving, that it is very important to maintain an absolute distinction between party political activity and political activity as defined in the charity guidance, which is activity that is about trying to achieve change through parliamentary or policy means around Parliament in that sense. It is very important for charities, for the trust issues that Greg and everybody else has referred to, frankly not to be seen as a political party because that is where the problems for us would start.
Q52 Chairman: Yes, but I keep coming back to the fact that your report does say that charities should be able to engage exclusively in political campaigning if they want to. Now, that takes you over a threshold and would require legal change, and Greg's point is that if you do that it may, on the Helena Kennedy argument, revitalise political life, but what it would do is contaminate the brand.
Mr Lamb: I do not think it would do that, for the reasons I have given in that you still would not have the charity's overall purpose being political; that would still have to be charitable and for another public benefit. My belief is that, for the reasons you have given, very few charities, in effect, would choose, or be able, because they would have to show other public benefits, to simply engage in political activity for the whole of the time, not least because they would have to be able to demonstrate the experience and background they were bringing to that issue and the public benefit they were also achieving, even if for a period that is all they did. So most charities, even if they had that flexibility, would choose to use it discerningly.
Q53 Mr Prentice: The Kennedy Report recommended that charities should be able to advertise on television, social advocacy advertisements, and you are in favour of that?
Mr Lamb: Yes.
Q54 Mr Prentice: What is meant by "social advocacy"?
Mr Lamb: At the moment the Communications Act has an even broader definition than the charities legislation about what would count as social advocacy or political advertising. The clearest example is that most of the public would imagine that the Make Poverty History one-click advert would be allowed on television when it was banned, and indeed the cameras had to pan away from it—
Q55 Mr Prentice: It would be allowed?
Mr Lamb: No, it would not be allowed on television yet it would be on certain other media. Again, we are not looking at adverts in support of a certain political party or anything, but if you wanted to repeal a particular piece of legislation or introduce a piece of legislation and you want to advocate for that on television, you would not be allowed to. We also said there were certain qualifiers that would have to go with that in that it would have to be absolutely clear that that ad was being sponsored and was not part of some other content, and who was sponsoring that ad, so it could not appear as something other than it was, but partly that is also due to the fact that, at the moment, because of those restrictions you can get oil companies, for example, advertising to establish their green credentials rather than what they sell, and that is permitted, but if an environmental group, for example, wanted to challenge those credentials they would not be allowed to because that would be counted as social advocacy advertising. It is the most restrictive regime in the whole of Europe.
Q56 Mr Prentice: And that is not being changed in any way?
Mr Lamb: That is correct.
Q57 Mr Prentice: And all the environmental charities have one arm tied behind their backs and we are watching these advertisements on television from BP and Shell saying they are environmentally friendly, but the opposite case cannot be put?
Mr Lamb: Exactly so.
Q58 Chairman: So you think, if we had Catholic and Pro Life groups showing pictures of little foetuses on the television at the moment as part of the campaign against the embryology legislation, it would contribute to public debate, would it?
Mr Lamb: They would have to make sure they adhered to all the other broadcasting regulations, and I doubt whether something like that, because of the level of emotive content, would be allowed as fair advertising and fair comment. Whether I agree with it or not I do agree with their right to be able to promote their view in the same way as other groups are without their hands tied behind their backs, yes. I think democracy sometimes means we have to also put up with those views we do not agree with, as long as it is done appropriately and within the law, and there are quite tight legal requirements policed by Ofcom around the whole Communications Act that would mean that they would have to be very careful about what that content was, and be able to justify their claims. For example, for charities, the Advertising Standards Authority and their requirements legislation is at least as pertinent to us as the charity guidelines. We have not talked about that broader legislative framework but the charity guidelines are only one bit of a very large swathe of legislation that we have to have a mind to when we are doing anything, and if charities have been discomforted it has been far more around ASA investigations than around Charity Commission complaints or investigations. Certainly I have been on the receiving end of an ASA investigation and it takes about six months, and you have to be able to prove everything you claim when you have a printed piece of material in a way that really is very exacting, and rightly so. I am happy to say that when we were investigated we were exonerated, but there is a lot more than just the Charity Commission guidelines that we have to have regard to.
Q59 Mr Liddell-Grainger: The internet is an enormous provider, and a lot of charities can get on to the internet because it is unstoppable and difficult to police. Do you see this as an on-going problem, and do you think we should try and legitimise the internet in conjunction with the Communications Act of 2006?
Mr Lamb: That is interesting. For consistency you might want to; I certainly would not want you to because it may make the internet as restrictive as other forms of advertising. You are right about what is problematic about the internet in that if you took the one-click advert that could appear on the internet without any information on provenance and who has supported it, in that sense it would be helpful to have those requirements, but when there is such a disjunction between the different forms of media at the moment, I do not think it is helpful to take what is a very restrictive environment around television advertising and apply that to other areas. What I would rather see is some liberalisation, and if we were going to harmonise then we must do it in a way that also liberalised and did not disadvantage charities.
12 Charity Commission, CC9-Speaking Out-Guidance on Campaigning and Political Activity by Charities, Version-March 2008, D6 Back
13 Charity Commission, CC9-Speaking Out-Guidance on Campaigning and Political Activity by Charities, Version-March 2008, B1 Back
14 The Power Inquiry, Power to the people, March 2006 Back
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