Rough Justice: The Charity Commission and Oxfam

As a result of the Oxfam GB Statutory Inquiry it is now much clearer to charities that, in the words of the Charity Commission’s 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 many other charities have now 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.

What are the fundamental purposes of a major statutory inquiry?

I assume that the purposes are:

1. 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

2. To find out in a trustworthy manner what actually happened, and why it happened

3. To ensure that, from such an authoritative understanding, the right conclusions are drawn and lessons learned and acted on for the future

4. 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 (CC3) 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.

A toxic atmosphere – inimical to calm truth-seeking

The first objective above was largely achieved but the circumstances surrounding the scandal and subsequent enquiry meant the other three were not.

Firstly, the sustained virulence of public and political indignation about the scandalous revelations in the media created a red-hot atmosphere, inimical to calm truth-seeking.

Secondly, this 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? 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 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’. The Commission launched an Inquiry identifying itself with public shock, fury and indignation at Oxfam.

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.

Thirdly, the grossly unequal power relationship between the Charity Commission and Oxfam existed for the duration of the Inquiry and beyond. The Commission was in an extremely powerful position, and Oxfam in an extremely weak one, which is not necessarily conducive to balanced truth-seeking.

Finally, it’s worth noting that 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.

When the going gets rough, the Commission expects perfection

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 shown in the Report. ‘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’. (page 79).

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’.

Missing context means we risk learning the wrong lessons

In Part One of the report, covering what happened in Haiti, there is little analysis of specific characteristics of the handful of people (mainly men) who were found to have breached Oxfam’s Code of Conduct – without understanding this we risk learning the wrong lessons for the future.

Further, this was a 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 essential context is entirely missing from the Charity Commission’s Report – but it 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 injustice of unsubstantiated accusations and wrong conclusions

The Commission’s conclusion that there was ‘mismanagement in the administration of the charity’ creates a humiliating impression of systematic incompetence and failure, which isn’t true or fair to Oxfam’s trustees and staff. In my opinion, most of the individual charges of mismanagement are, at best, contestable, partly because the Commission does not define it clearly enough. The consequent impression of repeated incompetence is on closer inspection disproportionate and unfair, not least to the Trustees.

But the greatest injustice of the Charity Commission’s Inquiry and Report lies in some of the conclusions that were promoted by the Commission’s leadership through the media, which are not borne out by the detailed Report, nor by other evidence.

The banner headline of the Commission’s press release launching the Report says that ‘No charity is more important than the people it serves or the mission it pursues.’ True, 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.

Then, nesting beneath the banner headline, is the conclusion that Oxfam GB had a culture of tolerating poor behaviour. This is unjust because it is not true that, in general, Oxfam’s culture or cultures tolerated poor behaviour.

The Chair of the Commission further asserts 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.

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.*

To sum up: more of a prosecution than an objective inquiry

The enormously hard work put into the Inquiry by the Commission and Oxfam GB has had some important, positive outcomes. The first of the four objectives above may have been largely achieved.

But overall, the Inquiry was more of a prosecution than a genuinely objective attempt to get the facts. 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 itself.

Finally, the Inquiry did not achieve consistently the objective of seeing that justice is done, 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. There are wider implications. 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 – not vilified. 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!”

*Note from Andrew Purkis:

My views above 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. I have deliberately not consulted anyone associated with Oxfam in the past or present in any way about this paper.