(Summary Version delivered to the Charity Law Association Annual Conference on 3 October. A fuller version is available on this website.)
- There have been some important gains for the charity sector as a result of the painful scandal to hit Oxfam GB and the statutory Inquiry carried out by the Charity Commission. It is now much clearer to charities that, in the words of the Charity Commission Report, “Protecting people from harm is not an overhead to be minimised, it is a fundamental and integral part of operating as a charity for the public benefit”. Oxfam GB has chosen to accept the Inquiry’s findings and they and Oxfam International are in the midst of ambitious plans to achieve a step change in the effectiveness of their safeguarding operations and HR culture, whilst many other charities have scrambled to invest more time, money and energy in these matters. The Charity Commission deserves credit for its important contribution to these improvements.
- Nonetheless, aspects of the Commission’s Inquiry and Report are disquieting. ( I emphasise that I have deliberately not consulted anyone associated with Oxfam in the past or present in any way about this paper. Its views are entirely mine.)
- What are the fundamental purposes of a major statutory Inquiry such as this? I assume that the purposes are:
- To give confidence to the public, including politicians, donors and supporters of charities, that decisive regulatory action will be taken if a charity goes astray, that wrong-doing that damages trust in charities will not be tolerated and will be rectified thoroughly
- To find out in a trustworthy manner what actually happened, and why it happened
- To ensure that, from such an authoritative understanding, the right conclusions are drawn and lessons learned and acted on for the future
- To see that justice is done ( to the victims of any inadequacies in Oxfam’s safeguarding, to whistle-blowers, to Oxfam’s supporters and donors, and to the Trustees, staff and volunteers of the charity).
- The Essential Trustee offers an important perspective on justice to Trustees: “The Commission recognises that most trustees are volunteers who sometimes make honest mistakes. Trustees are not expected to be perfect – they are expected to do their best to comply with their duties. Charity law generally protects trustees who have acted honestly and reasonably.” That constitutes an implicit pledge to Trustees and is a cornerstone of Trusteeship. We shall come back to it.
- The circumstances leading to the Inquiry into Oxfam made it exceptionally difficult for the Charity Commission to achieve all of these purposes. My assessment is that the first objective was largely achieved but the other three were not – an assessment broadly similar to that reached by the former Chief Executive of the Charity Commission, Andrew Hind (Civil Society News, 18 September 2019).
- The first difficulty was the sustained virulence of public and political indignation about the scandalous revelations in the media. This fury was unprecedented, and created a red-hot atmosphere, inimical to calm truth-seeking.
- The second difficulty was that the public fury had scorched the backsides of the Charity Commission itself, as well as Oxfam. Since the Commission was actually told by Oxfam that staff in Haiti had been dismissed for sexual misconduct, and invited explicitly to ask for any more detail it required, why, asked many commentators, did it not do so? There were other searching questions aimed at the Regulator. Hence, in the subsequent Inquiry, the Commission had points to prove affecting its own reputation.
- This toxic atmosphere threatened to contaminate the objectivity of the Inquiry from the start. The statutory Inquiry into Oxfam GB was launched on 12 February 2018. On that same day, the Charity Commission’s own Director of Investigations told the BBC in interviews that Oxfam had not disclosed full details of what happened in Haiti and “We are as you would expect very angry and cross about this”. That is unusual language at the very start of what is supposed to be a truth seeking and fair Inquiry. The Commission launched an Inquiry identifying itself with public shock, fury and indignation at Oxfam. Once they had committed themselves to that position, it would have been difficult to row back.
- The result was that the Inquiry was indeed more like an aggressive prosecution than an impartial fact-finding exercise in understanding what happened and why.
- A third difficulty was the grossly unequal power relationship between the Charity Commission and Oxfam for the duration of the Inquiry and beyond. This stemmed partly from the huge mass of public indignation filling the Commission’s sails. Oxfam’s only viable communications strategy was to keep saying “Sorry, sorry, sorry, sorry”, express shame and remorse time and again, and promise that everything would now change. Oxfam’s funding from DFID and others was also frozen. So the Commission was in an extremely powerful position, and Oxfam in an extremely weak one. That is not necessarily conducive to balanced truth-seeking.
- A fourth difficulty was that, so far as I know, among the Board or senior staff of the Commission there is limited experience of working in or being a Trustee of a charity even remotely like Oxfam.
Authoritative Fact-Finding on what happened …..
- There is a great deal of praiseworthy, meticulous fact-finding in the main Report itself. But to my mind there are significant instances where even in the narrative of the main Report itself there is reluctance to allow relevant facts to weaken the prosecution case. Significant examples are given in the full version of this paper.
- One example is the negative phraseology sometimes chosen by the Report. A discussion of the 2011 events in Haiti and subsequent decisions and reporting ends with the following judgement on page 79: “Overall, the Inquiry is not completely satisfied that the combined oversight, scrutiny of the information and assurances given to the 2011 Trustees were sufficient in the circumstances”. Presumably, if they are not “completely satisfied”, a very high bar, they could have said that they are in many respects satisfied, or are mostly satisfied, or there were excellent elements mixed with some inadequate ones, but the choice is to say the Inquiry is not completely satisfied. This happens again later in the Report. Trustees, take note: The Essential Trustee may say you are not expected to be perfect, but if the going gets rough, expect the Charity Commission nevertheless to apply a criterion of “complete satisfaction”.
Authoritative Analysis of WHY it happened
- Despite these significant flaws, however, the main Report is better at presenting the facts of what happened than explaining why it happened.
- In Part One, covering what happened in Haiti, there is little analysis of specific characteristics of the handful of people who were found to have breached the Code of Conduct – the facts for example that they were expatriates with a particular prevalent hard-drinking, hard-bitten culture of men scrambled to react to emergencies and disasters in different parts of the world.
- It is easy for the Inquiry to criticise the postponement for 6 months of a series of training courses in Haiti on the Prevention of Sexual Abuse planned for June 2010, because they do not enquire into what caused that postponement. If you don’t know why, it’s unfair to be critical.
- As I have explained elsewhere, the whole of Part 2 of the main Report is vitiated by a failure to understand and describe the wider context in which the leadership of Oxfam GB were trying to allocate scarce unrestricted resources and manage risks, of which safeguarding was only one. This was the period when a new Oxfam International was being painfully born, sucking unrestricted resources and massive senior staff and Trustee time and attention into a fundamental re-structuring of the Confederation. This was a massive change, made for ethical reasons stemming from Oxfam’s values, in which Oxfam GB took a leadership role. Pertinently, it meant that the Oxfam GB Trustees and senior staff were coping with an entire new layer of financial demands and risky change management on top of the egregious risks already inherent in Oxfam’s work in up to 90 countries across the globe. This essential context is entirely missing from the Charity Commission’s Report.
- That context was well known to the Commission and could quite easily have been summarised. Failure to explore and describe it is particularly damaging for the purposes of understanding, as opposed to prosecution; of drawing the right conclusions; and of justice.
The repeated charges of “mismanagement”
- It is not difficult to see why the Inquiry wanted to identify instances of “mismanagement in the administration of the charity”, because this is the relevant criterion for issuing a formal Regulatory Warning to Oxfam GB.
- The effect of frequently repeating this phrase throughout the Report is, however, to create a humiliating impression of systematic incompetence and failure, particularly on the part of the Trustees and senior staff leadership. (That is what enabled the Commission to badge its Report so emphatically as “critical”, taking some media correspondents aback, in order to assuage public indignation and secure the objective of displaying a tough regulatory response.)
- In my opinion, however, most of the individual charges of mismanagement are, at best, contestable, partly because the Commission does not define it clearly enough. How is “mismanagement” different from a difficult and debateable judgement, a reasonable decision to give priority to something else which with hindsight one regrets, inconsistent implementation of policies and procedures which the Trustees are doing their best to address, or even an honest mistake in a high pressure world?
- I assess the individual examples of so-called “mismanagement” in the Appendix of the full written version of this paper, so you can see if you agree they are contestable or even untenable. I note that Andrew Hind concluded that the Inquiry’s conclusions do not fit the actual evidence adduced.
- All in all, in my opinion, the consequent impression of repeated incompetence is on closer inspection disproportionate and unfair, not least to the Trustees.
Drawing the Wrong Conclusions
- The greatest injustice of the Charity Commission’s Inquiry and Report lies in some of the conclusions that are promoted by the Commission through the media but that are not borne out by the detailed Report, nor by other evidence.
- The Conclusions section of the Report begins: “No charity is more important than the people it serves or the mission it pursues.” This forms the banner headline of the Commission’s press release launching the Report. But there is nowhere a shred of evidence that anyone in Oxfam thought that the charity was more important than the people it serves or its mission. Any inference that the Trustees and leadership were not completely focused on service to the mission and its beneficiaries is groundless.
- The next conclusion, nesting beneath the banner headline and taken up by the Commission’s Chief Executive, is that Oxfam GB had a culture of tolerating poor behaviour. The Chief Executive adds that the events in Haiti were symptoms of a wider problem of tolerating poor behaviour, and that Oxfam’s culture at times also lost sight of the values it stands for. This is unjust because
- As the Independent Commission emphasises, there is no one culture in Oxfam or Oxfam GB, but multiple different ones.
- It is not true that, in general, Oxfam’s culture or cultures tolerated poor behaviour. I have enumerated elsewhere the strenuous, sustained efforts of Trustees and a growing cadre of Oxfam GB staff known internally as The Compliance Alliance to improve compliance with regulatory requirements and Oxfam’s own policies and regulations as well as manage the risky structural upheaval of creating the new Oxfam International.
- Whatever else one might say about Oxfam’s investigation in Haiti, resulting in four dismissals and three forced resignations, it is hardly fair to call it tolerating poor behaviour.
- By the device of personalising a supposedly monolithic culture, the Commission’s Chief Executive falls short of saying that the Trustees and staff leadership tolerated poor behaviour and lost sight of their values. But only just.
- The Chair of the Commission joins in saying that “no charity is so large….that it can afford to put its reputation ahead of the dignity and wellbeing of those it exists to protect”. The clear implication in context is that this is what Oxfam did. But this is simply not demonstrated by the Report into Oxfam GB. There is no evidence that considerations of reputation overrode concern for beneficiaries and others who came into contact with the charity. (Reputation was only a significant factor in the limited area of less than fully comprehensive reporting of the Haiti incident to big donors and the Charity Commission but this was not at the expense of concern for those coming into contact with the charity.) The Inquiry itself concluded that there was no cover up.
- The Chair adds that being a charity is not just about what you do but how you do it. If she means that Oxfam’s leaders were too focused on their mission to eliminate poverty and advance human rights and didn’t care enough about bad or uncharitable behaviour by themselves or their staff, that is not what the record shows is generally true. I want to put on record my view that the Trustees and senior leaders did NOT tolerate poor behaviour. They knew perfectly well that how you do things is crucially important. They acted “honestly and reasonably” throughout, to quote The Essential Trustee.
- The enormously hard work put into the Inquiry by the Commission and Oxfam GB has had some important, positive outcomes. The first of our four objectives may have been largely achieved.
- The Inquiry did not, however, find out in a calm and authoritative way what happened and why it happened, because it was more of a prosecution than a genuinely objective Inquiry. It never fully recovered from the “very angry and cross” attitude with which the Commission launched it.
- The attempt to draw the right lessons for the future was flawed, because the conclusions drawn by the leaders of the Commission and widely promoted via the media are not supported by the evidence of the Report (nor other sources) and hence are the wrong lessons.
- Finally, the Inquiry did not achieve consistently the objective of seeing that justice is done. In particular, justice was not done to the charity, its staff, volunteers and supporters, nor notably to its Trustees. This was because the Commission prioritised the imperative of producing a highly critical report over fairness and over the implicit pledge made to Trustees in The Essential Trustee.
- This is more significant than a bit of rough justice to a few individuals or a single charity. Trustees need to know that if they pursue their duties honestly and reasonably, to the best of their ability, they will be protected and supported by the Charity Commission and the courts if things go wrong. That is a foundation of Trusteeship, of society’s bargain with those who give up their time and energies for love of serving a charity. Where does the Inquiry into Oxfam leave us Trustees who thought we could rely on that bargain? For us, I am afraid, after the Oxfam Inquiry, in Robert Browning’s words, “Never glad confident morning again!”
 My views are informed by a governance review which I conducted for Oxfam GB as an independent consultant in late 2017, to which a review of safeguarding governance in particular was added in early 2018. Those reviews were internal and remain confidential. They were both made available to the Charity Commission.
 A reference by the Country Director to “the change management process” is left unexplored and unexplained.
 As the BBC’s analyst Manveau Rana interpreted it: “It is rare to see such strong criticism of a charity….the Report is incredibly strong and has done something to redress the Charity Commission’s own laxity over safeguarding in the past.”