Climate crisis: how should charities respond?

Mark Abbott navigates the ups and downs of backing activist causes, even when they’re aligned with your charity’s core mission

For many years, environmental charities have campaigned tirelessly to build public awareness of the challenges faced by humanity as a result of climate change.

However, over the past year the civil disobedience campaigns of Extinction Rebellion and the school climate strikes instigated by Greta Thunberg have helped to generate the mainstream public recognition that this existential crisis deserves.

Protecting the environment is a charitable purpose – and more than 3,500 registered charities refer to the environment in their governing documents.

But climate change isn’t just a priority for charities with environmental purposes. Trustees of other charities might reasonably believe avoiding climate change and ecological catastrophe is essential to relieve poverty, protect health, save lives and advance human rights.

To these charities (whose trustees have a duty to effectively further the charity’s purposes), failure to engage with these campaigns may seem like a spectacular missed opportunity. But, by the same token, charities may also be concerned about the extent to which they are able to support organisations and movements whose tactics are rooted in civil disobedience.

Campaigning and political activity

It is well established that, while a charity cannot exist for political purposes, when furthering its charitable purposes (eg. environmental protection) that charity can engage in campaigning and political activity – including activity aimed at securing or opposing changes in the law or government policy.

So it is legitimate for an environmental charity to organise a petition, for example, advocating for a change in the law – if doing so is a way of protecting the environment, and on condition that political activities do not become the charity’s reason for existing.

But charities exist in an atmosphere of heightened regulation and scrutiny and, more than ever, trustees may feel the need to tread carefully before throwing the charity’s weight or name behind a protest.

A specific concern may arise where the protest (or broader civil disobedience) has implications which may be seen as adverse to public policy, or even have aspects which are unlawful (such as blocking the road or permitting your children to take unauthorised absence from school). These actions can be an intrinsic part of peaceful civil disobedience.

At one end of the scale, it is of course necessary to ensure that the charity or its trustees are not inadvertently committing a criminal offence themselves – for example, by encouraging or assisting criminal activity, or entering into a joint enterprise or conspiracy to commit that criminal activity (although there are questions about the likelihood that the police or prosecuting authorities would seek to bring charges more broadly than against individual protestors).

In a somewhat wider set of circumstances, the trustees may be concerned about whether the support impacts upon public benefit rules, or their duties – for example, their general duty to act prudently in managing the charity’s affairs, to use its assets and resources appropriately and (related to this) considerations about preservation of the charity’s reputation. But the matter is often not as clear cut as that.

For example, a charity’s reputation is often one of its greatest assets and, like all of its assets, should be used carefully and protected from undue risks. Tweeting support for student protests could cause reputational harm among those who consider that school attendance is more important than those protests – but it may equally improve a charity’s reputation among its existing supporters, who by definition consider environmental protection to be of paramount importance.

Indeed, among its existing supporters the charity may suffer reputational harm because it failed to publicly support an initiative which the supporters consider stands a chance of working. One of the arguments is that a charity has an on-going obligation to carry out its purposes in a way that carries out public benefit – and this could be perceived as difficult to reconcile with tacit support for non-public policy or unlawful activities.

However, the analysis in other areas (such as independent schooling) has been that the relevant inquiry is whether the activities overall are carried out for the public benefit. So in this context, it seems arguable that the charity would be carrying out its purposes for public benefit overall, even if particular activities, taken in isolation, would not meet that standard.

One might argue that a board of trustees is acting disproportionately if it allows a general reticence about controversial tactics conducted by others on the fringes of a movement to entirely prevent them from engaging with that movement, if that movement is intended to effectively protect the environment.

Softly, softly

Charities can also look to engage in ways which are likely to mitigate risks. A public expression of support can be tremendously helpful to a movement; yet it costs little or no money, which (relative to other forms of support) can help trustees to see off the risk of allegations that funds have been misapplied.

The wording is also important. For example, tweeting about the school protests, Jeremy Corbyn stated that “it’s inspiring to see them making their voice heard today”: a formula which expresses support for the children’s activism while stopping short of advocating truancy.

Similarly, charities may decide that publicly declaring or recognising a climate emergency is an effective means of drawing attention to climate issues, with little implication for the charity’s resources.

Charities would of course need to consider and justify how such an action would further their charitable purposes. The charity may consider permitting the use of “volunteer days” or similar flexible arrangements to permit interested staff to get involved in campaigns, as part of their offering to those staff.

If a charity wishes to provide financial support, could this be provided on a restricted basis, to support lawful campaigning activities? Or funds could be provided indirectly – such as by providing transportation, accommodation or training of activists, for example. In this way, the charity could retain control of the support it is providing and avoid allegations that it has engaged with or promoted more controversial/ unlawful activities.

By nature, words such as “prudence” and “reasonableness” that abound in descriptions of charity trustees’ duties are subjective, and much will depend on the facts and the trustees’ ability to justify their decisions in accordance with those duties – potentially using tools such as the Charity Commission’s decision-making guidance.

Despite all of this, charity trustees may often feel that the risks of engagement – or of particular types of engagement – are too great. Pragmatically, the Charity Commission has a statutory duty to promote trust and confidence in the charity sector, and may feel that this trust and confidence risks erosion if the support of these activities by charities becomes widespread (which is not to say that it is correct to impose this duty to uphold the reputation of the sector on individual charities).

Or it may take the view that a protest is, or appears to be, unacceptably aligned with a party-political viewpoint, which it separately considers to be unacceptable. But trustees must feel empowered to take decisions, including riskier ones, which are measured and calculated to further their purposes.

Charity law is surely flawed if it recognises environmental protection as charitable but requires charities to ignore the massive groundswell of climate crisis action which is currently underway.

Mark Abbott is an associate at Bates Wells bateswells.co.uk