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.

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