The government recently announced its latest candidate for the position of Chair of the Charity Commission: Orlando Fraser QC. He is expected to appear before the DCMS Select Committee of MPs as part of his pre-appointment scrutiny sometime in the coming weeks.
DSC has written to the Committee, asking that they investigate certain areas in their scrutiny. We recognise that Mr Fraser has substantial relevant legal experience, and also experience of the Commission as a former board member. DSC will work constructively with whoever fills the post.
However, charity trustees need to understand how Mr Fraser will maintain the Commission’s independence and ensure that it follows the law without undue interference from politicians or press influence.
Our letter cites three areas of particular concern
- His role in the Cage / Joseph Rowntree Charitable Trust (JRCT) case, where the Commission incorrectly tried to ‘fetter the discretion’ of trustees of JRCT in their duties;
- His role in the Commission’s flawed EU Referendum guidance, which was so poor it had to be withdrawn and reissued;
- His long-standing links to the Conservative party, following a series of appointees with similar political connections.
See the letter below.
Dear Mr Knight
Re: Preferred Candidate for Chair of the Charity Commission
I write to you in your capacity as Chair of the Digital, Culture, Media and Sport Select Committee and invite you to share this letter with the rest of the members, prior to the pre-selection
hearing of the Government’s preferred candidate for the Chair of the Charity Commission.
You are very aware, and indeed have commented yourself, on the importance of the relationship between charities and their regulator which has suffered in recent years and is at a critical point, and we have been grateful for your scrutiny and your support.
It remains the case that many charity leaders and trustees have lost confidence in the Commission’s leadership, particularly relating to its independence, objectivity, and understanding of the very law and regulation it is charged with enforcing.
We very much hope that the new Chair will be able to improve this situation, and we stand ready to help them do so in a constructive way. However, the candidate that the Government has put forward this week has himself been part of the story that has brought us to this point, and we would like to bring the following matters to the attention of the Committee which we think they might like to seek clarification and reassurances about.
The CAGE and JRCT case – During his time as a senior Legal Board Member of the Charity Commission, Mr Fraser was directly involved in the regulator’s attempt to fetter the discretion of the trustees of the Joseph Rowntree Charitable Trust, which had provided funding to the non-charitable advocacy group CAGE.
The Commission’s actions were legally challenged, and it subsequently backed down following the threat of judicial review. Had the decision stood, this action would have had widespread and damaging effects on the independence of charitable foundations and of their trustees.
We would ask: what led the Commission to this particular course of action; what has he learned from it, and what steps would he take to ensure this sort of error of judgement does not reoccur?
EU Referendum Guidance – Also in his capacity as a senior Legal Board Member, Mr Fraser oversaw the production of deeply flawed guidance from the Charity Commission about charities’ participation in the 2016 EU Referendum campaign. Guidance by OSCR, the regulator in Scotland, was far superior and more closely followed the law.
The Commission was forced to withdraw and then revise this guidance after the renowned charity law firm Bates Wells Braithwaite submitted a brief clearly demonstrating that it contradicted the Commission’s own pre-existing guidance and interpretations of charity law.
We would ask: what led the Commission to this particular action; what has he learned from it and what steps would he take to ensure this sort of error of judgement does not reoccur?
Political independence – Mr Fraser, although not an elected politician, has a decades-long association with the Conservative party, including as a candidate for Parliament. Choosing another Chair with such obvious political links risks distracting from the job at hand and makes maintaining objectivity and independence that much more difficult.
We would ask: what actions Mr Fraser intends to take to reassure the sector and the Committee of his political independence; how he will ensure that decisions taken in his role as Chair are non-partisan; how he will ensure that his political affiliations do not influence his leadership of the Commission and engagement with the charity sector?
We note that Mr Fraser has obvious relevant experience both of charity regulation, the law, and as a trustee, but these are aspects of his track record that we think the Committee could usefully include in its scrutiny session.
I hope the committee will take these matters under consideration in its scrutiny of Mr Fraser. We would be happy to provide more information about the above examples at your request, and to suggest others who can speak to the details of specific cases.
Debra Allcock Tyler, CEO, Directory of Social Change