The Spirit of Andrew Phillips – please don’t rest in peace

Lord Phillips of Sudbury, Andrew Phillips, is dead at the age of 84. This is not an obituary. I did not know him socially at all, nor particularly well as a colleague, and have not been in touch with him much for years, but I felt some desolation to hear the news, and I’d like to explain why.

Andrew had a big heart for the charitable sector. He loved it to bits, in all its bittiness. He was I thought a traditional Liberal, distrustful of political ideology and warmly approving of a multiplicity of diverse, independent citizens taking responsibility for making the world a better place. In this, he reflected his own energy and creativity in founding a number of charities promoting access to the law and responsible, informed citizenship. His vision of the law as an instrument for the public good and progressive values, embedded in Bates Wells, which has always combined high standards of professional excellence with a determination to use the law for good and a passion for the charity sector.

He could be fierce, and displayed a self-assurance that could be daunting, but he was fierce on behalf of the causes in which he believed – his clients, the many other charities and individuals he advised, the interests of charity trustees – and against unnecessary constraints, unfairness, and especially the greed and entitlement of those who he thought used their power and privilege for selfish ends. He was seldom more vehement than when describing lawyers on the make who did not share the ethos of Bates Wells. He was unashamedly moral in his judgements. He was warm, generous and approachable to those who he thought were doing their best for a charity or for the charity sector.

He was also brilliantly talented; Nicholas Hinton (then Director of NCVO) once told me that Andrew Phillips was the cleverest person he had ever met. With a combination of brilliance, legal acumen, moral passion, energetic personality, handsome bearing and generosity, he was an immensely reassuring person to have on your side. And once he had earmarked you as someone trying to advance the goals he believed in, he was on your side and would go out of his way to give encouragement and support.

And that’s why I, like so many others I feel sure, experience desolation at the thought he isn’t with us any more. He was our big-hearted, vehement and brilliant champion.

He passed on some of his vision and determination to his clients and to all those to whom he gave counsel and encouragement, to those influenced by his charities, and to younger stars in Bates Wells like Rosamund MacCarthy, the late Stephen Lloyd and Philip Kirkpatrick, and I’m sure plenty of others I don’t know, who combine his professional excellence and passion and make their own significant mark on the sector, not just on their individual clients. It is customary to wish that those who have died may rest in peace, but for the sake of the charitable sector, the health of the law and the chances of a better world, let’s hope the spirit of Andrew Phillips marches on.

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Orlando Fraser Muddies the Waters on Campaigning

Recent pronouncements by Orlando Fraser, Chair of the Charity Commission, about the tone of charitable campaigning, (in an article on 10 March and at an ACEVO conference on 22 March) don’t stand up to careful analysis. They will cause confusion among Trustees and charity staff.

It is encouraging that he robustly defends our right to campaign, speak on behalf of those who have no voice, and speak uncomfortable truth to power. He does not want us to be deferential – timid trustees, please note.

But he goes on to tell charities that they have a responsibility to model a better kind of public discourse. What does that mean? This is where the trouble starts. He offers various criteria to define “better”:

• We should avoid “inflammatory language” and seek to “reduce the heated frenzy of aggressive debates”. We should not “trash the motivation” of those who disagree.
• We should not “respond in combative terms to Government proposals and language”.
• Charity leaders should “use their voices with kindness, respect and tolerance”.
• They should realise that “to win people over, they need to walk towards them, not push them away”.
• Charities’ campaigning, he is reported as telling his ACEVO audience, should be “separate to the political fray”.

Inconsistent and ambiguous criteria

The first problem is that these criteria are different from each other and are subject to different interpretation. When the Archbishops of Canterbury and York introduced a major debate in the House of Lords on the subject of asylum, and roundly criticised key aspects of Government proposals, they were, I guess in many people’s opinion, being “combative”, though hardly exhibiting “heated frenzy”.

They were “respectful” in the sense of being personally courteous but not at all “kind, respectful or tolerant” about the Government’s language and policies towards refugees.

They were not “separate to the political fray” because they were part of it and seeking to shape it, though obviously not in a party-political spirit. What on earth are the Archbishops, churches, other faith groups and the wider charitable sector to make of such ambiguous advice?

Understanding the realities of campaigning

The second problem is that it seems Orlando Fraser doesn’t really understand how campaigning, and political activity more generally, work in real life. Take the huge and successful campaign, led by the Council for the Protection of Rural England and its allies, to protect the Green Belts from the intended free market laissez-faire policies of the Thatcher Government.

That campaign was combative all right. It was part of the political fray all right. It was intolerant of the Government’s proposals, and it wasn’t “kind”. It was about the cause of environmental protection and preserving the difference between town and country in England.

It is utterly unrealistic to suppose that “walking towards” the Government and being kindly and tolerant would have won them over. I remember the then Chief Executive of CPRE saying that mutually respectful, fruitful dialogue with the Government only became possible after a formidable show of strength by angry residents of many Conservative shires and their MPs responding to the campaigning messages of CPRE and other charities.

The abolition of slavery, like many other progressive reforms that are now defined as charitable, was not achieved by “walking towards” the plantation owners and slave traders and being kind and respectful, and it would be naïve to think otherwise – each different situation requires its own analysis and strategy.

Moreover, charities have multiple audiences in the public domain. The campaigning messages to rally supporters or raise funds, and show their users that they are on their side, understand their anger and will give voice to them, will be different from a letter to Ministers or a draft speech written for a Peer or MP or local councillor or a briefing for the Legislature. The tone will and should vary.

And each subject area has its ecosystem of charities: some are shouty, some are cerebral, some are strong on the inside track of lobbying, others are outsiders knocking at the door. They attract and represent different strands of the public. There is no one-size-fits-all tone for charities generally.

Fraser’s generalisations do not do justice to these realities.

Confusing the Commission’s Existing Guidance

The third problem is that this comes across as ambiguous advice on the hoof, which is the opposite of the clarity and consistency which the sector deserves from its regulator.

It is right that the pronouncements of the Chair of the Commission should be taken seriously, but that in turn means that they should be very carefully weighed and thought through, which these are not. Let us remember that CC9 itself says:

“A charity can campaign using emotive or controversial material where this is lawful and justifiable in the context of the campaign.”

That is carefully considered authoritative guidance, and it is a backward step for the Chair to try to insert sundry glosses of his own that risk confusing the Commission’s own guidance.

Who is competent to decide the right tone?

Fourthly, Fraser repeatedly implies that there is a divide between the personal views of charity leaders on the one hand, and the best interests of their cause and beneficiaries on the other.

The inference is that unspecified charity leaders are expressing combative, unkind and disrespectful personal views and thereby damaging the best interests of their cause. That is fairly “disrespectful” to the charity leaders in question – we don’t know if he was including the Archbishops of Canterbury and York – and the many other leaders of charities who are constantly judging at any particular time what kind of campaigning tone as well as substance will best advance their cause.

The fact is that those leaders are generally better able to understand what is in the best long-term interests of their beneficiaries and cause than the Chair of the Charity Commission. It is a judgement for Trustees to make, not for him.

Trust and Confidence of “the Public”?

It is true that Trustees should also remember their accountability to the public at large, who as taxpayers afford special privileges to charities, but never by compromising what they judge to be in the best interests of their beneficiaries.

The public is not monolithic, and of course is not synonymous with the headlines of particular newspapers or particular groups of politicians. Many charities pursue causes that are unpopular; their campaigns have always divided opinions, sometimes bitterly in the short term even when wholly successful and admired in the longer run.

The Commission’s area of authority is surely what is lawful and justifiable when charities pursue their objectives, as per their own guidance, and to hold Trustees themselves fully responsible for deciding how best to conduct their campaigning within the law in the best interests of their beneficiaries. The Commission should not be tempted to substitute its own judgement for that of Trustees, and be suitably humble about their ability to represent the views of “the public”.

Conclusion

My strong advice to Trustees of charities for whom campaigning and wider political activity is a significant part of advancing their cause is this. Stick to CC9, which is the official guidance.

As we have seen from his two predecessors, the opinions of Chairs of the Commission often float away into oblivion, because they do not have the weight, the clarity, the carefully considered reliability of official guidance, especially when they stray beyond the Commission’s core area of authority. In general, Orlando Fraser has made a good start as Chair, and it is an uncharacteristic mis-step to make pronouncements of such uneven quality.

William Wilberforce tries Respectful Discourse

(The Chair of the Charity Commission, Orlando Fraser, has just suggested that charities should adopt a kind, respectful style of discourse even on issues where debate is fierce. Here goes.)

                                  House of Commons, 1805

My dear Slave Traders and Plantation Owners,

It is my sincere wish to enter into a friendly dialogue with you about possible problems posed by the slave trade and slavery, as I feel sure that reasonable men can find common ground in a kindly and respectful manner.

I am sorry that some of my more excitable colleagues have been using language such as “evil”, “inhumane” and even “un-Christian” about what I acknowledge to be established and legitimate means of pursuing trade and cultivation of crops that bring great benefits to many of our fellow countrymen. And I know there are many devout Christian men among you whose wish is to play your part in God’s plan as you understand it.

But perhaps I could ask you to think and pray about one or two drawbacks that may unintentionally arise from your chosen enterprises?

I understand your view that people of a different race from Africa should not be expected to aspire to the same level of comfort and liberty as ourselves. But may I be permitted to suggest that this view is not universally shared?

May I ask you to consider also that some devout and knowledgeable people have a different view of what God’s plan is, and that to treat human beings as if they were no better than animals[too provocative – WW] regard people as the property of other men is becoming somewhat contentious (notwithstanding, as I must acknowledge, the apparent acceptance of slavery in part of the Good Book).

May I also surmise that the loss of many slaves from slave ships through disease and death must be of some concern to you as men of commerce, as well as to people of my persuasion?

In this truly respectful spirit, I should like to propose a meeting at your convenience in the Reform Club, or at my home in Clapham, to see where common ground can be found in this matter, as I am sure we share a desire to avoid noisy and dangerous manifestations such as demonstrations or Parliamentary debate which can become unpleasantly heated.

Your most humble servant,

Wilberforce.

[Unfortunately, I have received no reply to this courteous letter – WW]

Lord Gus O’Donnell’s Warm Bath

1. The final report of the Law Family Commission on Civil Society, chaired by Lord (Gus) O’Donnell (former Cabinet Secretary), who also chairs Pro Bono Economics which supported the Commission, was published at the end of January. To one prominent charity leader I know it felt like “a lovely warm bath” after years of relative indifference, neglect or hostility from national policy makers towards the charity sector.

Championing the social sector

2. For it champions the essential role of the sector in our national life, and its central message after two years of consultation and research is that national well-being and prosperity will continue to suffer unless the contribution of charities and community groups (which it calls “the social sector”) is better understood, recognised, measured, nurtured and supported, working in harmony with business and the public sector. Alleluia!

3. It is in many ways a heart-warming vision, expressed in an optimistic, can-do spirit, and accompanied by specific recommendations, some of which we must hope may gain traction from the distinguished and diverse people on the Commission and from what it claims to be its unique character as a tripartite body but one including business and prominent public sector servants. Perhaps, even if its arguments and recommendations are mostly not new, they might have more impact because they are advanced under such auspices? Let us hope so.

Some Drawbacks

Definitions

4. There are, however, disappointing flaws and limitations that may mean that the vision will not have the impact it deserves.

5. As with any report about civil society (or charities), there are familiar problems of definition. It is not clear enough, literally, what they are talking about. They say they are talking both about civil society as a whole, defined in the most general terms, and at one point, for example, mention trade unions as part of it; and that for other purposes they are talking about the social sector, defined as charities and community groups. In various passages, the difference between charities and civil society gets blurred and lost. And when the Commission talks about “charities”, much of the time they are really talking about only the minority of charities with significant resources and staff.

6. They are not the only ones to do it, but such imprecision about the basic subject of the report is an own goal.

Big Omissions

7. So far as I recall, you can read the whole 100 pages of the report without coming across the words “church”, “mosque” or “faith groups”. This is an extraordinary omission. Churches and other faith groups are still there in deprived areas from which other institutions may have long departed, play an undisputed role in nurturing community, account for about one in every six pounds donated to charities, and nurture high levels of giving among their adherents. Did the Commission have no contact with religious organisations and religious leaders as part of this exercise?

8. And the brief mention of trade unions with their six and a half million members as part of civil society is sadly their first and last appearance. The Commission shows no interest in the potential for partnership between charities and trade unions, despite the obvious overlap of interests in areas from health, safety, welfare, child care and the needs of carers to human rights, including women’s rights and anti-racism.

9. In what is billed as a unique tripartite Commission, I don’t see a big hitter from the world of local authorities, who are so crucial in their interaction with civil society. This seems an unfortunate gap, and I think it shows in the quality of what the Commission has to say about the local level of partnership.

Historical amnesia

10. It is great to have the disciplines of economics and research applied to civil society by Pro Bono Economics, but how we miss the disciplines of history! It is a hazard for can-do people rolling their sleeves up to crack a problem, that they may not have the patience to learn from the past. The Commission makes some really important (if familiar) recommendations that are hampered by historical amnesia. The Commission advocates for long-term, unrestricted core funding for charities as a top priority: Amen! But the same has been passionately argued over decades, again and again. So saying it one more time is unlikely to effect change unless one examines why such calls have been ineffectual.

11. The Commission advocates for good infrastructure for civil society – so important indeed. But there used to be much stronger infrastructure, with special further efforts made under the Blair Government, so why did they have mixed results and why has so much of the infrastructure collapsed: if you don’t understand that, how can you be optimistic that arguing for the benefits of infrastructure will have any more effect now?

12. The Commission rightly argues for better habits of partnership and respect between government and charities, as previously laid out in the Compact, which has since collapsed. If you don’t analyse why it collapsed, why should similar efforts succeed this time?

13. The Commission advocates for more civil servants to be allocated to the civil society brief. But there is no consideration of why the Civil Society Unit (or equivalent) in powerful central Departments like the Home Office, and later the Cabinet Office, with a strong Minister as champion, has become attenuated and shunted into a siding in DCMS under a junior Minister with multiple other briefs. What happened and why? Silence. We just get the idea of a non-Ministerial Philanthropy Champion – which might well be useful but not surely a substitute for a strong CSU at the heart of government, for which charities have argued for many years?

14. The Commission advocates for vigorous exchanges of good practice and of the blessings of partnership between business and charities. Great. But did they not know that Business in the Community, with strong support of the then Prince of Wales, has been doing this for decades? Would they not have some lessons to offer? Enthusiastic rhetoric about the potential of business/charities partnership is not informed by historically-informed analysis of the constraints and difficulties.

Respecting existing organisations

15. The habit of ignoring history overlaps with a recurrent tendency, as in the case of Business in the Community (BiC), to neglect the cumulative expertise of current major players in the field. This too is an own goal, unless one takes the extreme view that those players are not worth consulting. In addition to BiC, there is little sign that the Association of Charitable Foundations was consulted with any care on the subject of grant funding by grant-giving charitable trusts, despite their key role in this area and considerable improvements in practice during and since the pandemic.

16. Nor does it seem that the National Council for Voluntary Organisations (NCVO) was brought properly into the venture, eg by involving its current CEO, despite being the premier infrastructure organisation with a large charity membership at national and local levels, whose bread and butter for many years has been the dissemination of good practice, the creation of data (used by this Commission), advocacy for the role and support of civil society and volunteering, partnership working, the defence of campaigning rights and so on. It is ironic that a Commission recommending collaborative approaches and partnership should fail to collaborate adequately with these and other umbrella bodies, and it must make it less likely that recommendations addressed to them will be received with enthusiasm.

17. There is a specific recommendation to create a new Civil Society Evidence Organisation whose remit would appear to overlap with that of a number of existing infrastructure and academic organisations. Human nature being what it is, if the Commission did not consult them carefully or explain how the new body would fit in with them, it will not be surprising if the response is teeth-grinding and low murmurs dissing the new kids on the block rather than something more creative.

Avoiding Controversy

18. One can understand how someone as versed in the art of the possible as Lord O’Donnell, and who aims admirably to secure a consensus across different political opinions and sectors in favour of the Commission’s vision, should try to downplay divisive issues. Tactically, that might be the right choice. But in some ways, this makes for rather anodyne, technocratic recommendations. Political elephants in the room haunt this report.

19.For instance, there isn’t a hint that the relative neglect of civil society by government might partly be due to the highly centralised nature of the British state. This forms part of Andy Haldane’s analysis, and Danny Kruger’s, and is keenly debated.  You might think that a major review of partnership with civil society would at least mention the topical view that pushing power downwards, so that it is nearer civil society, would be a precondition for transformative change. But shifting power is not for this Commission. There has been much effort in recent years to build support for using dormant assets for a Community Wealth Fund, but there is no mention of this.

20. Similarly, you can if you persevere find a recognition on page 85 of the report that the collapse of local civil society infrastructure (and the diminution of many local authority/civil society partnerships) had a lot to do with the radical cuts in local authority funding by central government, but this rather large point does not make it into any of the Executive Summary, the Introduction, the conclusions or the boxed key findings and recommendations of the report.

21.Nor would you know from this report that the Conservative peer Lord Hodgson had set out in an independent review his recommendations for how to mitigate the restrictive effects of the Lobbying Act – ignored by the Government. There are no recommendations about Whitehall gagging clauses (though the principle of not allowing criticism to deny charities Government finance is staunchly promoted).

22. We have seen that the progressive downgrading and impotence of Government’s Civil Society Unit also gets no mention.

23. The Commission is determinedly optimistic that there is “a strong bedrock of engagement and respect between charities and policymakers, as well as appetite among every group of policymakers to increase and improve relationships”. Well, that would be grand, but it comes across as Panglossian. It sits awkwardly alongside the recognition in the report (if you look carefully) that a very strong cohort of right-of-centre MPs and Government Ministers do not appreciate the campaigning role of charities, that the Compact died, and that charities have felt that they have been banging their heads against a brick wall in recent years to get a decent level of consultation and recognition.

Conclusion: All is Not Lost

24. You will not find a more vigorous assertion and explanation of the essential contribution of civil society to our country’s well-being and prosperity, than this Commission’s. Charities can be truly grateful that Lord O’Donnell and his team chose to use their time and formidable reputations and abilities in this cause. There is added value in the involvement of business, public sector and civil society joint representation on the Commission and the deployment of economic skills and concepts to help gain support and understanding among parts of society who have not been too successfully reached by the advocates of civil society before.

25. The Commissioners have not finished their work and promise to follow up their report to try to secure reform. Perhaps they are right that the prospect of a new General Election, and its possible aftermath, could create conditions for a re-set where their vision is more likely to take root; a time more favourable to well-informed technocratic consensus and partnership working.

26. For that to happen, here is my unsolicited advice to the Commission. Be clearer who you are talking about. Engage better with key organisations that have toiled in this vineyard for decades. Study the constraints and pressures that have frustrated aspects of the vision over many years. Be as collaborative as you argue others should be. Bring in the local authorities and the faith groups. Acknowledge some of those political elephants in the room. And please keep going.

Andrew Purkis

March 2023

The Proud History of Charitable Campaigning

The Proud History of Charitable Campaigning

Address to Directory of Social Change Engage Conference, 18 October 2022

1. Those who say that charities shouldn’t dabble in politics and should stick to uncontentious service delivery have completely lost sight of their own history.

How Charitable Campaigning has shaped Britain

2. Long before the Charity Commission was established in 1853, organisations pursuing what are now recognised as charitable causes were entering into the arena of public debate and decision-making to agitate and lobby for social and moral improvements. The template was the great movement to abolish the Slave Trade, accomplished in 1807, and later to abolish slavery itself throughout the British Empire, accomplished in 1833, just after the Great Reform Bill was enacted: so that the extension of the franchise and development of democracy went hand in hand with campaigning for a great moral and political cause. This agitation had very deep and long roots in our history – for example, the use of petitions can be traced back to the reign of Edward 1^st who died in 1307. This was not party political – Whigs and Tories, Charles James Fox and William Pitt – joined in the reform movement led in Parliament by the Tory William Wilberforce. But it was political in the sense now used by the Charity Commission (and by me in this address): designed to achieve a change of law or practice by any part of national or local Government.

3. Many more reform movements championing what are now charitable causes burgeoned after that. Temperance and the licensing of drinking. Ending the degrading employment of children in factories and mines. Animal welfare. Women’s rights. The protection of the countryside from pell-mell development, and the creation of National Parks, Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest, Green Belts round our great cities, and of planning systems to preserve the distinction between town and country. The reform of prisons. The rights of children. The dignity and inclusion of disabled people. The equality of gay people. The ending of discrimination against religious minorities. Clean air, banishing pea-souper smogs. Recognition of the role of carers. Combatting climate change and global injustices. These are just a few of the advances driven by political campaigning, awareness-raising and lobbying in pursuit of charitable causes.

4. So political activity in pursuit of charitable causes is not just some debatable add-on to “genuine” charitable work. It has always been an integral and fundamental part of what many charities do. If has always been crucial to the contribution made by charities to the good of society. It will and must remain so. That is because

• Excluded and marginalised people cannot obtain their rights without entering the political arena and demanding a place in the sun

• The support of the public and Parliament are needed to secure the interests, safety and protection of beneficiaries against all manner of harm

• Current laws and practice by government and its agencies, or lack of them, are often part of the problem for our beneficiaries.

Challenging Ill-informed Tropes about charities

5. By the same token, we must challenge the lazy simplifications of some contemporary discourse about charities. Yes, some charities bring people and communities together and overcome divisions, but others quite rightly pursue unpopular and controversial causes. Some charities provide uncontentious services that everyone can support, but others stick their necks out in a way that angers those whose opinions and prejudices are disturbed. They are all pursuing charitable cases for the public benefit, so let us have no truck with simplistic and historically ill-informed tropes that describe only part of our diverse sector.

Good News: We Can Engage in Political Activity

6. Now there is some good news on this score. Compare and contrast the regulatory situation up to the mid-1990s with what we have today.

7. For a start, the definition of which purposes are charitable has broadened out since then to include the advancement of human rights, conflict resolution, religious and racial harmony, equality and diversity. Citizenship and community development is also now charitable. And the “any other charitable purposes” Clause in the 2011 Charities Act gives further flexibility. So the range of purposes that are seen as charitable is substantially greater.

8. In those glory days before the mid-90s, Oxfam was told by the Charity Commission not to lend its name to securing either the abolition or retention of Apartheid in South Africa. They were told that a campaign to highlight distress in Cambodia under Pol Pot had been conducted with “too much vigour”; and that “it is not for charities to take issue with the deficiencies of the international community and seek to bring about change which is itself a political act”. Political activity was described in official guidance as “like the elephant, hard to describe but easily recognised”, leaving Trustees baffled as to what was permissible or not. This was all going on while I was in my working career.

9. The guidance was progressively clarified and liberalised in 1995, 2005 and 2008, and CC9 now makes it crystal clear that while charities must not be party political, they may engage in political activity in pursuit of their charitable objects. Such action cannot itself be the purpose of the organisation or become the sole reason for its existence, but it can absorb the lion’s share of resources and attention for a period if the Trustees believe that is the best way of pursuing their charitable cause. There are those who would like the definitions to be pushed further, but the current guidance gives very extensive scope to engage in political activities.

10. Moreover, that guidance has survived the undermining confusions of the William Shawcross years as Chair of the Charity Commission. There were negative noises about charities sticking to their knitting, there was a cat and mouse game as to whether CC9 would be revised, there was rhetoric about the so-called “politicisation of charities” as one of the key challenges faced by the Commission, and there was the restrictive guidance about charities’ activities during the EU Referendum campaign that was so flawed it had to be withdrawn and amended, but CC9 survived unscathed, and the hostile rhetoric eased and returned to its natural home, ie a not-very-well-informed kind of right-wing Conservative MP and predictable sections of the press. An extreme form of gagging clause in Government grants introduced by Eric Pickles, and intended to be rolled out across Whitehall under Matt Hancock at the Cabinet Office, collapsed under the threat of judicial review instituted by a coalition of charities, though some grants clauses remain too restrictive. In summary, there is a pretty robust consensus now behind the principles of CC9: charities can engage in political activity in support of their charitable objects, so long as they avoid party politics, and we have shown repeatedly that if we stand firm against attempts to restrict our rights under CC9, we win.

Be of Good Courage

11. So my first main message to all of you and all those charities facing really difficult external policy environments – and how many aren’t? – is: Be of good courage. If you think the most effective way of pursuing your cause must include political activity, go for it. You are doing what charities have always done and should do if the interests of their beneficiaries require it. You are standing on the shoulders of countless charitable campaigners who have shaped our country and society. And if challenged, insist robustly on the absolutely clear recognition by our regulator that political activity can be not only a legitimate but an important way of fulfilling our duties to work for and with our users as effectively as we can.

12. Now let’s turn to the dilemmas of setting about influencing policies and state practice for the better, if that is what our Trustees decide they want to do.

Inside or Outside Track?

13. Firstly, there’s the age-old question of whether to go for the inside track or the outside track – cultivating and lobbying insiders in the civil service and Parliament, or going public via campaigning in the press and social media, demonstrations, petitions and protest. Of course, there is no one-size-fits-all answer, and our sector represents a whole ecosystem of different bodies pursuing different options along that spectrum. Each charity has to analyse at regular intervals the conditions of combat, as Lenin put it, and decide what strategy is best.

14. Here are some key variables to be considered:

• External: is anybody on the insider track interested in listening? Are there reasons to suppose opportunities will grow? Are they susceptible to rational and evidence-based dialogue, or to political pressure from beneath, or neither? What are the prospects for investment in either insider or outside tracks or both?

• What is your charity’s theory of change – what are the means by which you believe life can be made better in the long term for your beneficiaries? And is that theory still valid when you review it as part of your strategic review process, as the external environment changes, or must it be adjusted?

• Internal: What are the particular skills and strengths of your organisation, on which you must build? Few charities have the knowledge and track record to do everything, so you need to stick to whatever distinctive contribution you believe your charity can make.

• Could your political activity be most effective in collaboration with other organisations? Are the time-consuming difficulties of negotiating joint action outweighed by the possible greater impact of organisations acting in concert? Which bits are best done jointly, which bits are best left to individual charities?

15. Please don’t forget that this does not have to be an either/or choice. It is often the combination of insider and outside action that works best. I remember my predecessor as national Director of the CPRE telling me that some of its branches were uncomfortable with campaigning and kept arguing for reasonable discussion with the policy makers instead. His reply was that when CPRE had led the first great campaign against the Thatcher Government’s proposals to deregulate the Green Belts, blowing those proposals to smithereens assisted by the righteous anger of many Conservative MPs, it was remarkable how much better the insider dialogue became, because Ministers and civil servants realised they had to listen.

When the Going Gets Tough

16. Now for some thoughts about what to do when the going gets even tougher than usual, when campaigners and lobbyists alike feel they are banging their heads against a brick wall and everything is going in the wrong direction. I am well aware that many of you are feeling like that now.

17. We have been here before. Many charitable campaigns we have discussed earlier have taken years and years to come to fruition. Dogged persistence must remain part of our make-up. Imagine what it has been like for prison reform charities for decades. But those prison reform charities are still there, challenging and demonstrating what is happening and how improvements can be made, long after sundry hostile and difficult Ministers are all but forgotten. And we were inspired by Polly Neate earlier, when the housing crisis has got so vastly worse for year after year, but Shelter and its allies are not going to be daunted. So keep going for as long as the cause is just: that is what charities do.

18. It’s not too hard to remember just now that Ministers and Governments come and go, as they do at local authority level also. We are non-party political, so it’s vital we don’t get too obsessed with the Government or Minister of the day. Lay the groundwork for the future with other parties, and with other people within the ruling party. To take one example, Barbara Keeley, Shadow Minister for Civil Society, has proclaimed that charities should be “key influencers of government policy”, so there is an open invitation. And don’t leave it too late, until after the Manifestoes are written. In many policy areas, a sea-change may be coming, either as parties compete with each other in the run up to an Election or when a new Government takes over, or when the current Government changes.

19. And there is usually something useful that we can do with our political activity, even when the direction of policy is dire for our beneficiaries. Let me give an example from the refugee charity Safe Passage International, which exists to help refugees, especially children, find safe and secure routes to sanctuary, and of which I am Chair. The external policy environment in the UK could hardly be more awful. Yet Parliamentary pressure stoked by Safe Passage and its allies forced the Government to extend the Homes to Ukraine scheme to unaccompanied children fleeing Ukraine, after the Government at first neglected and subsequently refused to do so. Then Safe Passage was able to use the Home Office/Department of Levelling Up Voluntary and Community Sector Engagement forum to submit written feedback on how best to extend the scheme in detail, drawing on the charity’s extensive experience of working with such children. Meanwhile, the charity is making representations to the UN Committee on the Rights of the Child about exactly how the UK asylum system fails to be compliant with the Convention; and briefing the House of Lords Justice and Home Affairs Committee on family migration. There’s nearly always something useful to be done, and it beats despairing or just sticking to service delivery.

20. Finally, let’s not forget that we are vectors and generators of hope. Charities always have been. That has a value in itself for our users and beneficiaries and all those who support our cause, however difficult things may be. No problem is too large to stop us trying for a better world. Today’s problems are truly daunting: climate change, gross inequalities, trafficking and modern slavery, grave poverty looming for many families and children, gross global injustices. But they are no more daunting than the legal and entrenched slave trade and slavery were. Nor the systematic patriarchy blighting the life chances and rights of women. Nor the vast vested interests in child labour. Not the centuries-long discrimination against and persecution of religious minorities. Nor the religious and cultural oppression of gay people. Nor the torture and neglect of animals. Where there are charities ready to take up even such monstrous challenges, there is hope.

             Conclusion: Let’s get on with it

21.So let’s be of good courage, secure in our right to pursue political activity in support of our charitable objectives, and get on with it as our predecessors did in the proud history of charitable campaigning and lobbying. Thank you.

The IEA’s defence of its charitable status: some brief comments

On 5th October I published an article in Civil Society News questioning the charitable status of the Institute of Economic Affairs (supposedly advancing education for the public benefit):(https://www.civilsociety.co.uk/voices/andrew-purkis-is-the-regulator-sure-the-iea-is-charitable.html).

I argued that it should not be a charity on two grounds: that its purpose is partly political, as defined in the Charity Commission’s guidance CC9, whereas the purpose of a charity must be exclusively charitable; and that it constantly infringes the Charity Commission’s guidance on what charitable education must be, because it promotes a predetermined, controversial viewpoint (free market ideology and determination to shrink the state), rather than the balanced and neutral kind of education as defined in Charity Commission guidance.

The IEA’s rejoinder is reproduced below. Here are brief comments on their main points.

1. “Charities can be political in line with their mission provided that it is not their sole purpose”, says the IEA. This implies that being political can be part of a charity’s purpose so long as it’s not the sole one. That is wrong in charity law. A charity’s purpose must be exlusively charitable. CC9 says “A charity cannot have political activity as any part of its charitable purposes” and that an organisation with a political purpose, even if like the IEA it also has a charitable purpose, cannot be a charity. In my article I quoted the IEA’s own description of its purposes to show that they are clearly in part political as defined in CC9.
2. In response to the argument that the IEA promotes a predetermined, controversial position (the state must be shrunk in multiple dimensions), the Institute doesn’t pretend to be uncontroversial. Instead, they claim “Whether educational charities can be controversial remains controversial” and whether the regulator agrees is “unclear”. On the contrary, the Commission’s guidance over many years is perfectly clear that promoting a pretermined and controversial viewpoint is not charitable education.
3. Given the Commission’s guidance that charitable education should be balanced and neutral, paying regard to different viewpoints as appropriate, the IEA suggests that it is “sufficiently” balanced and neutral “within the school of thought” and “in the round”. But since the IEA is a frankly proselytising organisation and everyone involved is (in its own words) constantly on the look out for ways to shrink the state, reflected in all its output, the scope for balanced and neutral education is vanishingly small.
4. The IEA relies heavily on the argument that since I have made these points before, and have failed to convince the Charity Commission, the issue is no longer live and the arguments can be dismissed. Well, as a previous Board member of the Charity Commission, I know that the Commission can change its mind on the interpretation of charity law and its own guidance, even after many years of debate. After all, it wasn’t so very long ago, in the 1990s, that the Commission was describing political activity as, like the elephant, hard to describe but easy to recognise. and berating charities like Oxfam for prosecuting certain campaigns with too much vigour, for lending its name to the abolition or otherwise of Apartheid, and for taking issue with the deficiencies of the international community. So the six years since my first blog about the IEA in March 2016 is quite a short time when it comes to persuading the Commission to change its mind.
5. Previous representations from me to the Commission have led to the taking down of the Proposals for a Conservative Manifesto with the Taxpayers’ Alliance in 2017, a series of meetings between the Commission and the IEA, and recognition that they should not be putting out political prescriptions attributed by staff or in press releases as being endorsed by the IEA as a charity. So they have had some effect, though not enough. And in trying to justify to me their continuing recognition of IEA as an educational charity, the Commission has had to resort to some obviously debatable arguments, such as saying that the IEA’s viewpoint is “relatively uncontroversial” – which, in the light of recent events, have not lasted well.
6. Yes, the issue is live! It is unjust that the IEA should be a charity.

Here is the IEA’s rejoinder to my article:

Andrew Purkis’s latest attack on the Institute of Economic Affairs (IEA), would be more compelling had he not already tested the points he raises with the regulator, repetitively, over the course of a decade long lobbying campaign. He honourably maps out this record of failure on his own blog, but persists in pretending this is a live issue, rather than one long settled by regulatory review.   

Charities can be political in line with their mission, provided that is not their sole purpose, and self-evidently isn’t at the IEA which runs summer schools, publishes books, and other educational content. Education charities must in addition be ‘sufficiently balanced and neutral’, but ‘within the school of thought’ and ‘in the round’ while allowing readers or listeners ‘to reach their own conclusions’. Meaning we offer a range of free market content, balance should be considered in the wider context of that output, and we offer options not campaigns.

Whether education charities can be controversial remains controversial. We believe such a stipulation does not exist in charity law, and clearly conflicts both with freedom of expression and academic freedom as defined in the Education Acts. Whether the regulator now agrees is unclear. It is, though, self-evidently relevant to their reversal of the regulatory sanction misapplied to the IEA in 2019 when they banned and then unbanned a book about Brexit.

Funding transparency or protection of donor privacy is a matter of general charity law, not specific to think tanks. Were any think tanks selling access to Ministers for lobbying purposes this would be strictly illegal in both charity and lobbying law. Claims in this area usually amount to conspiratorial and abusive online campaigns, that do not encourage transparency. A specific allegation made against the IEA in 2019 was tested and found without merit by two regulators. We have conversely published on improving transparency by requiring all politicians to publish their meetings.

It is correct there is still some regulatory ambiguity in this space. 2016 operational cases for other think tanks proposed an extension of objects and dual charitable / non-charitable structures as solutions for ‘on the line’ activity. But they are not applied consistently. The sector guidance rushed out without consultation in 2018 remains poor. A long-term solution for charitable think tanks might be to allow ‘advancing debate for the public benefit’ to emerge as an ‘other purposes’ object, to support free expression and the quality of public discourse. Something that is particularly relevant in this age of polarisation, no platforming, and cancel culture.

But in simple terms, while Purkis is a knowledgeable and experienced charity law campaigner, on the matter of the IEA’s charitable status he is simply and repetitively wrong, and has been told so repeatedly by the regulator.

Charity Commission: are you quite sure the IEA’s purpose is charitable?

Well, well – our new Minister for Civil Society, Lord Kamall, is a past Research Director of the Institute of Economic Affairs (IEA)! This is a humble example of the reach of that contentious charity into the new Conservative Government.

The Political Reach of the IEA

For, as George Montbiot has described in his column of 23 September in The Guardian, Liz Truss was a founder member of the Free Enterprise Group of Conservative MPs, whose webpage was registered by Ruth Porter, Communications Director of the IEA, and for whom the IEA organised events and supplied media briefings. 12 members of the Free Enterprise Group are now in the Cabinet, and Ruth Porter is Truss’s new Deputy Chief of Staff at No 10. Moreover, two out of three of Truss’s chief economic advisers during her campaign were from the IEA stable: Patrick Minford, a long serving Board member, and Julian Jessop, former IEA Chief Economist and Economics Fellow. The Director of the IEA Mark Littlewood has given interviews about “his friend” Liz Truss and her incorruptible free market credentials, and Truss has held more meetings with the IEA over the past 12 years than any other politician. Monbiot also draws on the autobiography of Madsen Pirie, formerly of the Adam Smith Institute, describing how every week in a bar in Leicester Square staff from the IEA and Adam Smith Institute sat down with Conservative Party researchers and Times and Telegraph leader writers and journalists to plan “strategy for the week ahead”.

Why IEA should not be a Charity

Is this a triumph for charity sector influence on Government policy, you may ask? No, because the IEA should not be a charity at all, for two reasons. Firstly, the IEA’s project is inherently political, in the sense of the Charity Commission’s definition in CC9 (this is not the same as party political, though the IEA sails very close to the wind on that criterion also). Secondly, although it claims the advancement of education as its purpose, it constantly infringes the Commission’s own definition of what charitable education must be.

It is a regulatory failure of the Commission over years to have repeatedly rapped the IEA’s knuckles for individual breaches of its guidance without being courageous enough to recognise that these are but symptoms of the fundamentally political and evangelical, proseltysing nature of the IEA, which exists to promote free market ideology and shrink the state.

A Political Purpose

Here is the Charity Commission’s definition of “political” activity, which by law must not be part of a charity’s purpose: “aimed at securing, or opposing, any change in the law or in the policy or decisions of central government, local authorities or other public bodies, whether in this country or abroad”. (CC9 says you can engage in political activity in support of an exclusively charitable purpose, such as the relief of poverty, protection of the environment etc, but political activity must not be the purpose.)

And here is the IEA’s own description of its purpose: “It is more vital than ever that we promote the intellectual case for a free economy, low taxes, freedom in education, health and welfare, and lower levels of regulation”. “[All those involved in the IEA] believe that society’s problems and challenges are best dealt with by individuals, companies and voluntary associations inter-acting with each other freely without interference from politicians and the state. This means that Government action, whether through taxes, regulation or the legal system, should be kept to a minimum. Our authors and speakers are therefore always on the look out for ways of reducing the government’s role in our lives.” It is obvious that such a purpose necessarily involves “changes in the law, policy or decisions” of government and other public bodies. So how can the Commission possibly accept that the purpose of the IEA is exclusively charitable and not political?

Charitable Education? Hardly.

Moreover, the supposed charitable purpose of the IEA is the advancement of education. Here are some salient quotations from the Commission’s guidance on what charitable education must mean:

“Promoting a specific point of view may be a way of furthering another charitable aim, but it would not be education.”

“[Charitable education involves] researching and presenting information in a neutral and balanced way that encourages awareness of different points of view where appropriate.”

“Advancement of education by a charity must not be promoting a predetermined and controversial position.”

The entire output of the IEA is designed to promote the specific, predetermined and controversial point of view already summarised from their website. “Neutral and balanced” is a different universe.

Challenge to Charity Commission

Thus, part of the very purpose of the IEA – shrinking the state – is political, and their version of “education” is promoting a predetermined and controversial point of view and cannot be charitable education.

There are plenty of charitable think tanks for the advancement of education that play by the rules. There are plenty of non-charitable think tanks that promote a controversial, predetermined point of view without pretending to be charitable. It is unjust to bpth of these that the IEA should not play by the rules, and yet enjoy the status and financial benefits of being a charity. There is a lazy argument doing the rounds that people only criticise the think tanks with which they disagree and if you deprive one of charity status the rest would all go down like ninepins too. That is nonsense. Each case must be looked at on its merits in the light of the Commission’s own, clear guidance.

Charity Commission Board members: please look at yourselves in the mirror and see if you can truthfully say: “The IEA’s purpose is in no way political as defined in CC9. Its education and research is balanced and neutral and does not promote a predetermined and controversial point of view.” If you can’t, it is surely time to act.

By the Waters of Babylon: why do charities exile their alumni?

(An edited version of this piece was published by Civil Society Media on 11 August 2022)

1. When people complete their time as a Chair or Trustee, a member of staff or unpaid volunteer of a charity, in many cases they are, in effect, exiled from the charity. However intimate their knowledge of the charity from years of service, however precious their institutional memory, however wise and experienced they may have become, however strong the love they bear for it, many charities do not find a way of tapping into those gifts. Often enough, it’s just goodbye and farewell. At first blush, that seems a sad waste.
2. I have been Chair or Vice Chair of eight charities. There have been exceptions, but overall it has been relatively rare for them to seek my advice on anything at all, or contact me as a former Chair, from the day I stepped down. Of course, that might be because I am thought to have nothing useful to offer, but then I look at my own practice as Chair and reflect with regret on how very rarely I approached one of my predecessors to seek advice or even just a sense of solidarity.
3. Chairs, other Trustees, volunteers, (and many paid staff who could have earned more in another sector), have given all those years’ service for love. Perhaps it’s an exaggeration to invoke the song of exile: “By the waters of Babylon we sat down and wept when we remembered you, O Sion (Jerusalem)”; but we former Chairs and other alumni do usually think lovingly of the charities that have been an important part of our lives, and it can be painful to be consigned to oblivion (except in our identity as donors).
4. There are important exceptions to the exile of former Chairs, Trustees and other volunteers and friends. If a charity has a Council or Assembly as part of its governance, they will often be part of them and continue to make their experience and judgement available in those forums. That might also make it more likely that they become involved in task forces on particular subjects or contribute through informal personal relationships. But a considerable proportion of charities do not have such governance arrangements and rely on a Board of Trustees who appoint future trustees themselves. In some cases, alumni might be invited back to a set piece gathering or might be invited to join taskforces or give a view, but my impression is that this is quite uncommon. If this impression is correct, why is the outcome so often exile?

The Reasons for Exile

5. Firstly, we may pay the outgoing Chair and other alumni the compliment of assuming that they will be very busy with other important commitments, which will often be true, and will not want us to bother them with the affairs of a charity they have now left, which will less often be true. Nor will the outgoing Chair, for example, wish to give the impression that he or she or is unwilling to let go or believes the new Chair needs their help. Perhaps self-respect and a little pride comes into it: “I can cope quite well thank you without running back to the former Chair”, thinks the new Chair. “Please don’t think I can’t let go – I’ve got plenty of other interests and involvements”, signals the former Chair. Such sensitivities may lead to a reciprocal reluctance to approach each other.

6. Sometimes, secondly, those remaining in the charity view the departure of the former Chair or other alumni with relief, or at least see the opportunity for new and better ways of managing the affairs of the charity. For example, if problems of toxic culture emerge, the former Chair, Trustees or senior staff may be seen as part of the problem rather than the solution. They in turn may in individual cases be heartily fed up with the charity and glad to hear no more from it. Both scenarios are familiar, but neither is the norm.

7. New working relationships need space to solidify. For instance, if the Chair leaves, there will be a proper desire to develop a new, all-important relationship between new Chair and CEO. Sensitive former Chairs will respect that and will not, as it were, wish to hang around in someone else’s marriage, nor will the CEO wish to appear to want to consult the former Chair rather than the new one. Similarly, a refreshed Board of Trustees or management team will want to bond with each other and generate a fresh team spirit rather than mix it with those who have just left.

8. Consider the convention in the Church of England that the outgoing Bishop of a Diocese should arrange to leave that Diocese and retire elsewhere. The thought is that for the mother- or father-in-Christ for many years to hang around in the same Diocese will make life more difficult for the new Bishop, because people might hanker after the old one and the authority of the new Bishop might be compromised. No doubt there is much bitter and valid experience that underpins that convention, which applies to some extent to other charities.

9. A further consideration is being up-to-date with knowledge and understanding. Even a small number of years can make a big difference to the assumptions and priorities of a charity in a rapidly changing world. There is a proper fear that alumni from a few years’ ago might well still be operating on an outdated understanding.

10. Yes, and time and resources are limited, and it is quite an effort to ensure effective engagement of existing Trustees and staff, without trying to take in alumni, too. It isn’t easy to find ways of involving alumni that don’t seem tokenistic or even unreal, so can it really be a priority?

11. Put these factors together with the formal legal position. The mindset of many charities is quite heavily legal; this is a key factor. You are either (for example) a Trustee with specific responsibilities, or not. You are either a member of staff or volunteer subject to defined management and accountability, or not. If you are not responsible or accountable, you should not be part of the decision-making of those who are in law responsible. It’s not your job any more.

And Yet….

12. And yet, even all these arguments taken together do not fully justify the loss to charities of the institutional memory, experience, judgement and informed goodwill of many former Chairs, trustees and senior staffers who are in many cases simply banished from the moment they step down. Sometimes, we may operate too rigidly according to the legal formalities of who is responsible and who isn’t. Most alumni completely understand the formal position and will give any advice and support within that framework. That doesn’t mean they have nothing to offer.

13. This is part of a wider challenge. Sometimes, our working relationships and methods are more exclusive than we intend: in many charities, there is no place and no role for alumni generally (former Chairs, Trustees, staff, volunteers): no networks, no communication (except as donors and supporters), no consultation. Perhaps some of the same mental obstacles prevent more progress in consulting beneficiaries and service users, and even collaborating closely with other charities. We rely on current staff and current Trustees and for many charities all our core working practices revolve around them. Yet it must be possible to be more open, more porous, more collaborative organisations, galvanising and capitalising on the goodwill and insights of wider circles of people, without compromising the formal legal accountabilities.

Good Practice in mobilising alumni?

14. Although it is rarer than it should be, there is some good practice out there in mobilising alumni, and I think umbrella bodies should be collecting and publicising it. Here are some examples that I have come across that need testing and building on.

15. At the level of structured opportunities, the regular strategic reviews that every charity should engage in are an opportunity for consultation with alumni. Get them involved, whether by reacting to drafts in writing or engaging in purposeful conversations. The same applies to service users and kindred charities. The fact that the existing Trustees will take the decisions and be responsible for the new strategy will be well understood by those who nevertheless may have important skills and experience to bring to bear.

16. Similarly, AwayDays can be more inclusive, with sessions including those beyond existing staff and Trustees.

17. As already noted, some charities with a Council or Assembly already have built-in opportunities for a gathering of the clans at their Annual Meetings. Those who don’t might think about similar gatherings that are sometimes a version of Social Audit. For example, there might be a session of the charity presenting its current work in market stalls to a cross section of stakeholders (including alumni), interacting with them, followed by a more formal presentation of current priorities and challenges, with Q and A and a commitment to follow up the points raised, with socialising and fun as part of the day. There is a cost, but also a good potential benefit for accountability, relationships and learning.

18. Occasionally, charities may want to use set-piece occasions to refresh and share again the distinctive history and story that every charity embodies and that gives it its unique character and motivation. Alumni would naturally be part of that, because they are part of the story.

19. Then there are less formal opportunities to include individual alumni on task forces and Commissions, or as trusted people with whom to share particular dilemmas and think through knotty problems. When it seems lonely and a struggle, it’s a great consolation to talk to someone of goodwill and understanding who has been through the same sort of thing. Quiet meals, drinks or walks with former alumni have their place.

Conclusion

20. There are ways in which more charities could be better at making use of the goodwill, knowledge and experience of their alumni. This is probably true of other sectors, too, though the legalistic nature of charity law and regulation may breed a mindset that is particularly inclined to exile those who are not formally responsible and accountable. I believe many charities would benefit from giving greater attention to this issue. We don’t need to see so many people that love the charity to which they gave years of service, weeping by the waters of Babylon.

Orlando Fraser was not held to account. That’s a failure.

Predictably, Nadine Dorries has gone ahead and appointed Orlando Fraser as Chair of the Charity Commission, despite the Select Committee refusing to endorse the appointment. In fact, by saying they have no evidence that he lacks the experience and understanding to do the job, they paved the way for this. The Select Committee, broadly following the joint briefing they received from NCVO and ACEVO, held the appointment process to account, but failed to hold the individual to account.

The Process

The process was roundly criticised, principally for failing to produce a diverse pool of candidates, but also for arguably inadequate due diligence (including lack of references) and for long delays. The Committee, though not the umbrella bodies’ briefing, also attacked the fundamental problem that the Secretary of State has such power over the appointment that she might well appoint the preferred candidate even if the Select Committee were to vote unanimously against, as happened in the case of Baroness Stowell last time. This makes a mockery of Parliamentary scrutiny and of the formal status of the Commission as a non-Ministerial public body. It was a success for the Select Committee and the sector umbrella bodies that the Select Committee laid down such a clear challenge to the Government about the inadequacies of the process, though of course we don’t know whether it will have any effect. Let us hope that the sector’s representatives can follow through and help address these inadequacies for the future, in case any future Government is willing to listen.

The Individual

So far, so good. And the Select Committee, as urged by NCVO/ACEVO, did also rightly pick up on the fact that Orlando Fraser had been a Conservative Party candidate in 2005 and was a founder member of Iain Duncan Smith’s Centre for Social Justice. Fraser gave the best answer he could, that it was a long time ago and for many years since then he had stopped being a Conservative activist and focused on non-party political charitable work. There is nothing he can do if people perceive his party associations as influencing his work as Chair of the Charity Commission (as they surely will).

The Track Record

What the Select Committee MPs who turned up at all – 5 out of 11 were missing – did not probe in any depth was Orlando Fraser’s track record as senior legal Board member of the Charity Commission under William Shawcross. Kevin Brennan MP did ask about the Commission’s climb-down in the High Court when they had to acknowledge that they had no power to fetter the discretion of Trustees of the Joseph Rowntree Charitable Trust by insisting they shouldn’t ever again fund the non-charitable advocacy body CAGE. Orlando Fraser blamed the staff of the Commission, despite the fact he was senior legal Board member. This was left unchallenged by the Select Committee, but just think about shuffling off responsibility in that way, and what it tells you about the state of relations between staff and Board members during Fraser’s term at the Commission.

Perhaps it’s not surprising that the Select Committee did not probe the track record, because the NCVO and ACEVO didn’t do so in their briefing. Most of the briefing was concerned with the process and with the issue of party-political independence. In one light-touch sentence, they say “It would be helpful to understand Mr Fraser’s perspective on recent high-profile investigations into charities, and his reflections on the decisions that were successfully challenged while he was on the board of the Charity Commission”, without saying what those decisions were.

Thus, the MPs would not know from this that the Shawcross/Fraser years were dreadful ones for the regulation of charities’ non-party political activity. This was the era when “politicisation” of charities was pronounced by the Commission to be a key challenge on a par with fraud, terrorism and safeguarding. When we were told by a Commission Board member to stick to our knitting. When there was a prolonged, destabilising cat-and-mouse game as to whether the Commission was going to revise the guidance (CC9) on political activity. When the guidance on how charities should behave in relation to the EU referendum was so negative and flawed (with Fraser at the heart of it) that, in a quite unprecedented move, it was withdrawn by the Commission and re-written. And the humiliating climb-down over CAGE and the Joseph Rowntree Charitable Trust.

Does the umbrella bodies’ institutional memory not go back far enough to remember the battles NCVO and ACEVO themselves fought against all this at the time? Why no challenge?

Fraser’s theory of “robust” regulation

They say in their briefing: “Powerful public voices who have a particular view of the role charity should play in society must be met with clear communication about the scope of charity regulation, and the legal framework in which the Commission works”. Exactly, but that is just what Orlando Fraser didn’t do. In deference to certain powerful voices in Parliament, he led in producing the disastrous guidance on the EU Referendum. In deference to public and political outrage over Jihadi John, he proposed suddenly launching a full-blown statutory inquiry into the Joseph Rowntree Charitable Trust just when the Trustees had been informed by the Commission that the non-statutory compliance case, with which they had co-operated openly and fully, was about to be closed. (Fraser wasn’t inclined to respect the Trustees: “Do they even realise they are a charity?”). Then, as we have seen, when the Commission had to climb down over trying to force the charity to fetter its future discretion, he blames the staff.

So far from clear communication about the scope of charity regulation and the legal framework within which the Commission must work, Fraser set out a dubious theory of “robust” as opposed to “technical” regulation in the emails subsequently made available in Third Sector in 2015. “This is the form of regulation we have been talking about”, he wrote to a senior staff member: “legally open to challenge (perhaps), but fundamentally necessary, in the sector’s interest, heart in the right place, supported by the public”. Really? Here was a legal Board member of a quasi-judicial body urging his staff to act potentially unlawfully in order to send messages to the public and respond to public opinion. This is why the NCVO complained bitterly at that time of “regulation by red top”.

Yet despite all this cause for deep concern, mostly completely unexplored in the Select Committee hearing, the verdict of the Select Committee is that they have no evidence to doubt that Fraser has the experience and qualities to do the job. (Actually, the evidence was made available by Directory of Social Change and by me, as reported in the sector media, but perhaps they didn’t read it.) The NCVO now endorses the view that “Orlando Fraser has the experience and understanding required to be Chair of the Charity Commission”. Without proper scrutiny of the track record, that conclusion is unsound. The process has been challenged (we don’t know how effectively), and for that credit is due to the Select Committee and the umbrella bodies. The individual’s track record has not. He has not been held to account, and that is a failure.

Orlando Fraser: more questions

Orlando Fraser is the Government’s preferred candidate as Chair of the Charity Commission for England and Wales. In my last blog I set out why, owing to his party political associations and poor track record as a legal Board member of the Commission in the past, he is not in my view a suitable person for the job.

Emails from Commission members to each other, published by Third Sector magazine on 19 November 2015, add further doubts. Orlando Fraser, though supposed to be a legal Board member with a special remit to ensure high standards of legal propriety in the work of the Commission, took the lead in traducing the Trustees of the Joseph Rowntree Charitable Trust (“Do they even realise they are a charity?”) and pushing to open a full-blown statutory inquiry into that long established Quaker charity.This was remarkable, because the Commission itself had just told the Trust that they were about to close the (non-statutory) compliance case with which the Trustees had fully and openly co-operated.

Fraser and other Board members had become extremely excited and troubled by the news that CAGE, a non-charitable advocacy body who had previously received grants from Joseph Rowntree Charitable Trust for charitable parts of its promotion of human rights, had at one stage mentored the man who subsequently became known as “Jihadi John”. Spurred on by public and media indignation, Fraser outlined a new theory of “robust regulation”: “This is the form of robust regulation we have been talking about”, he wrote: “legally open to challenge (perhaps), but fundamentally necessary, in the sector’s interest, heart in the right place, and would be 100 per cent supported by the public”. Here is a legal Board member pressing a quasi-judicial body to act potentially unlawfully in order to send messages to the public and respond to public opinion.

Thankfully Fraser’s militant advocacy for a statutory inquiry, on a compliance case that was nearly completed, was in the end rejected. But the underlying fondness for what the NCVO was to call “regulation by red top” remained. Even handed, cool-headed administration of justice was out. Excitable responses to “public opinion” were in.

The previous preferred candidate, Martin Thomas, told the Committee that the best way of promoting public trust and confidence in charities in the long run is for the Commission to do its core job professionally and effectively, from a rigorously independent standpoint, with a constant eye on charity law. The Orlando Fraser version is different: never mind too much what might be subject to legal challenge, show the public (or particular parts of the public or Parliament) we shall respond to their concerns. That is what led to the debacles with the Joseph Rowntree Charitable Trust and the effort to fetter the discretion of its Trustees, and with the EU Referendum that had to be re-written.

The Commission, the charity sector and the public do not need excitable populism at the helm. They need a cool head, wise judgement, and a commitment to justice and fairness in the regulation of charities.