The Trouble with Orlando Fraser

There are two large problems with the Government’s decision to make Orlando Fraser their preferred candidate for the Chair of the Charity Commission of England and Wales. The first is his known association with the Conservative Party; the second, and more serious, is his track record as the senior Legal Board Member of the Commission under William Shawcross.

Party Political Associations

Successive Chairs of the Commission have struggled with their known party-political associations, because, irrespective of their actual behaviour and motivation, they corrode perceptions of their neutrality. Unlike Orlando Fraser, Dame Suzi Leather had never been a party-political activist, being just a member of the Labour Party, yet the first question in her interviews about public benefit on the Today Programme would inevitably be: “is it true that you are a member of the Labour Party?”, and the Commission’s guidance on public benefit was tainted by the widespread perception that this was influenced by party political animus. William Shawcross never shook off his close personal associations with Conservative politicians and the knowledge that he had gone public before his appointment with the view that the re-election of Gordon Brown would be “a disaster for Britain”. And Tina Stowell was accompanied throughout her tenure by a large elephant in the room: the fact that she had led the Conservative Party in the House of Lords.

A successful Chair of the Charity Commission must not have close associations with a political party, otherwise the difficulties of achieving perceptions of even-handed regulation are too great. Yet Orlando Fraser stood as a Conservative candidate in 2005 and was part of Iain Duncan Smith’s Centre for Social Justice. In the words of the old song, when will they ever learn?

The Track Record

Now the track record. It might be assumed that a track record as senior Legal Board Member of the Charity Commission must be a plus point. But unfortunately, if the track record is of failure and misjudgement, that plus point turns into a negative.

A period of destabilisation

Let us recall that the Shawcross/Fraser era was an unhappy one for regulation of the charity sector, particularly in relation to the legitimate non-party political activity of charities. From the start, this Board identified “the politicisation of charities”, which they never defined, as a major priority on a par with terrorism, fraud and safeguarding. They played a long cat-and-mouse game as to whether or not they would revise CC9, the Commission’s guidance on political activity. So far, so destabilising. When Fraser’s colleague Prof Gwythian Prins told charities notoriously to “stick to their knitting”, he was articulating the combination of uncomprehending hostility and confusion on the subject of non-party-political activity that characterised the Board as a whole, including its senior legal member. Nor did the Board succeed in winning the confidence of many Muslim organisations that it was unbiased in its regulation.

The most humiliating debacles in 40 years

Worse was to come. Unfortunately, Orlando Fraser was deeply involved in the two most humiliating debacles that I can remember as an observer of the Commission for over 40 years.

1. The Guidance on the EU Referendum

When Fraser was not only senior legal Board Member but also Chair of the Guidance Committee of the Commission, it produced such negative, repressive and flawed guidance to charities on how they should conduct themselves during the EU Referendum campaign that there was an outcry. Charity lawyers Bates Wells and Braithwaite tore into the guidance, showing how it contradicted charity law and the Commission’s own previous guidance. The legitimate and valuable contribution of charities to informed debate, explained in CC9, was grossly underplayed, by contrast to the Scottish regulator who produced much more balanced and positive guidance on the basis of the same law. As a result of the outcry, in a move without precedent, the Commission withdrew its guidance and rewrote key parts of it to bring it into line with its own guidance and with charity law. The credibility of the Commission was in shreds – a toe-curling, excruciating moment for a former Board member like me. Fraser pleaded afterwards that at least they had moved fast to rewrite the guidance. Well, yes, but that is hardly an excuse for producing such an embarrassingly flawed document in the first place.

2. CAGE and the Joseph Rowntree Charitable Trust

The second debacle concerned the Commission’s militant insistence that the Trustees of the Joseph Rowntree Charitable Trust must never again fund the non-charitable advocacy body CAGE. CAGE was associated with defending the human rights of detainees in Guantanamo Bay and others accused of terrorist offences, so this was another area of acute political controversy where the Commission needed a cool head and careful judgement, but instead were found wanting. The JRCT Trustees jibbed at the Commission’s demand that they should promise never to fund CAGE again no matter how they might change. The Commission wouldn’t accept this and demanded their promise. When the JCRT asked for clarity on exactly what the Commission required, this is what the Commission said in its own published case report:

“ We are expecting a straightforward confirmation that the trust, in the circumstances, agree they will not fund CAGE now or in the future. As we explained previously, the current response stops short of accepting that, in the circumstances that have arisen, and in the light of the trustees’ legal duties and responsibilities, they cannot fund CAGE per se. This means neither now or in the future, foreseeable in this context was not intended to indicate a caveat or exception.”

That is surely unequivocal, and the Commission’s subsequent contentions that they didn’t really see this as a requirement they were making, and that they weren’t really trying to rule out future funding if circumstances should change, are deeply unconvincing. Judicial review by CAGE forced the Commission to resile from the position quoted above and sign an agreed statement that “The Commission does not seek to fetter charities’ exercise of discretion whether to fund the charitable activities of CAGE for all time, irrespective of changed circumstances… The Commission recognises that it has no power to require trustees to fetter the future exercise of their fiduciary power to give advice and guidance..etc”. It was, indeed, a massive climb-down which would surely never have been necessary if the senior legal Board Member had been doing his job properly.

Needed: a cool head, sound judgement under political pressure

Another defence offered by Orlando Fraser, in relation to the EU referendum debacle, was that the Commission has to be sensitive to strong views expressed by its key stakeholder, Parliament. But Parliament is not a monolith: different parliamentarians have different views. And the point about the Commission is that it has statutory duties, many of them quasi-judicial, which must be immune from political squalls and pressures. Imagine a judge saying: “well, I am sorry I got that wrong, but you must understand I was under pressure from some people in parliament”!  Think of recent political squalls about the Runnymede Trust and the National Trust and Barnardos: thankfully, the Commission investigated carefully and found no regulatory concern. If they had done an Orlando Fraser, things might have been much more threatening and destabilising.

For a core requirement of the Chair, as of the senior Legal Member of the Charity Commission, is steady judgement and a cool head under pressure, with a commitment to the even-handed adherence to the law. On that criterion, Orlando Fraser’s track record is very seriously flawed. I am glad that the Directory of Social Change, of which I am a trustee, has written to the DCMS Select Committee raising these concerns and asking for them to be carefully scrutinised. For my part, I cannot see that a person associated unambiguously with a particular political party, and above all with such a very poor track record in the actual practice of charity regulation under political pressure, can be seen as a worthy candidate.

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