17 March 2016

Please note: On 23 March the Charity Commission softened its guidanceon charity campaigning during the EU referendum. We recommend that you read this new guidance.

Key dates

The EU referendum campaign period starts on 15 April 2016.
The date of the EU referendum is 23 June 2016.

Summary of the guidance

The purpose of both sets of guidance is to explain how charities can get involved in the debate in the lead up to the EU referendum within the framework of charity law.

OSCR advise that charities should campaign only if they can demonstrate that campaigning:

  • will advance their charitable purpose;
  • is not prohibited by their governing documents;
  • does not advance a particular political party.Charity trustees who wish to campaign should also demonstrate that they are acting in their charity’s interests, and with due care and diligence.

Guidance from the Charity Commission states that charities should campaign only in exceptional circumstances where the issue is especially important to their purpose.

This contrasting advice may create some uncertainty for the 900 charities based in Scotland which operate across the UK. What is clear, however, is that both sets of guidance stress that to avoid breaking the law charities must carefully consider and demonstrate how campaigning activities relate to their charitable objectives.

It is recommended that charities:

  • ensure campaigning activities can be justified as advancing charitable purposes;
  • rigorously record decision-making processes;
  • ensure campaigning does not advance any political party;
  • ensure spending does not exceed £10,000 unless the organisation has registered with the Electoral Commission as a “registered campaigner”. Those that intend to register should
  • not spend more than £10,000 before registration is complete.
  • ensure transparency about any EU funding the charity receives.

Key differences to consider

Both sets of guidance cover many of the same issues. The difference in tone, however, may cause some uncertainty. Key differences that charities should be aware of include:

Funding

OSCR states that receiving funding from a source promoting a particular outcome is not a problem as long as political neutrality is maintained. The Charity Commission, however, stresses the importance of funding transparency over the referendum period to ensure that reasons for engagement can be fully assessed. This is particularly relevant to charities in direct receipt of funding from the EU or its institutions.

Registration with the Electoral Commission

OSCR advises that charities campaigning for a particular outcome during the EU referendum campaign period will need to follow the rules on campaigning set out in The Electoral Commission guidance. The Charity Commission stresses charities that may spend more than £10,000 on campaigning during the referendum period must register with the Electoral Commission.

Supporting a particular outcome

OSCR encourages charities to consider the impact of the referendum as part of their strategic planning and recognises that the result of the EU referendum might affect a charity and its work. OSCR advises that supporting an outcome in the EU Referendum that is consistent with a charities purposes should not breach charity law as long as this support does not advance a political party. Similarly, the Charity Commission advises that support for a particular outcome should be based on whether the outcome would have a direct impact on charitable purposes. The Charity Commission’s guidance, however, warns against alignment to an organised campaign, in addition to a political party.

Trustees, their opinions and the EU Referendum

OSCR states that charity trustees should clearly distinguish their personal views from those of the charities they represent and be aware of any action or statement which risks their personal opinions being taken to represent the policies or views of their organisation. The Charity Commission takes a stronger line, stressing that charities should be alert to the potential for their charity to be used as a vehicle for the expression of the personal or political views of an individual trustee or staff member. The Charity Commission describes this as a ‘significant risk’.

The regulator’s roles

OSCR emphasises that they have no view on the referendum, and that as a regulator they will only intervene if there is a clear risk to a charity, their assets or reputation, or that of the sector in general. They stress that every situation will be different, and that charities should seek advice from a qualified lawyer or via a Third Sector Interface.
The Charity Commission states that it will investigate any complaint against trustees, and will take proactive action if necessary.

Conclusion

Charities that operate under the remit of both OSCR and the Charity Commission must consider both sets of guidance when deciding how to engage.

Contact

Sheghley Ogilvie
Public Affairs Officer
Scottish Council for Voluntary Organisations,
Mansfield Traquair Centre,
15 Mansfield Place, Edinburgh EH3 6BB
Email: sheghley.ogilvie@scvo.org.uk
Tel: 0131 556 3882
Web: www.scvo.org.uk

About us

The Scottish Council for Voluntary Organisations (SCVO) is the national body representing the third sector. There are over 45,000 voluntary organisations in Scotland involving around 138,000 paid staff and approximately 1.3 million volunteers. The sector manages an income of £4.9 billion.

SCVO works in partnership with the third sector in Scotland to advance our shared values and interests. We have over 1,600 members who range from individuals and grassroots groups, to Scotland-wide organisations and intermediary bodies.

As the only inclusive representative umbrella organisation for the sector SCVO:

  • has the largest Scotland-wide membership from the sector – our 1,600 members include charities, community groups, social enterprises and voluntary organisations of all shapes and sizes;
  • our governance and membership structures are democratic and accountable – with an elected board and policy committee from the sector, we are managed by the sector, for the sector;
  • brings together organisations and networks connecting across the whole of Scotland;
  • SCVO works to support people to take voluntary action to help themselves and others, and to bring about social change.

Further details about SCVO can be found at www.scvo.org.uk