Scoring the Independence of the Charity Commission

In May 2018 DSC produced a toolkit for testing the independence of the Charity Commission entitled The Three Pillars of Independence. I thought I’d use this to reflect on the nature of the Charity Commission’s regulation over the last couple of years.

We think the Commission should be independent of party politics, the press and populism – an often interlinking set of concepts. As a regulator accountable to Parliament and with quasi-judicial powers to control not only charities but volunteer trustees, the Commission’s approach should be grounded first and foremost in the law, evidence and data, and good regulatory practice.

From the outset, the Three Pillars made the explicit assumption that the Charity Commission must also be, and be seen to be, independent of the charity sector itself, because it must act in the public interest and be accountable to Parliament. I don’t suppose anyone in the charity sector thinks that the Commission has failed to demonstrate its independence from the sector. Tick.

Independent of Party Politics?

The first of three pillars of independence was independence from party politics and the Government of the day. We outsiders cannot know for sure what influence Ministers might exercise in more or less subtle ways, given that they control the purse strings. But in all fairness, I have not noticed any obtrusive partisanship in relation to different political parties or Government. I do not hear a specifically Conservative or Government song coming from the lips of the Commission’s Chair Baroness Stowell or other spokespersons.

It is indeed possible that a Chair from a different part of the political spectrum would have taken a different line on the political activities of the free market Institute of Economic Affairs, or struck a different balance in dealing with the Oxfam scandal, but there are reasons other than political allegiance that could account for those decisions. All in all, another tick.

Independent of the Press?

The third pillar was independence of the press and wider media. So far, Baroness Stowell has shown less inclination than her predecessor, William Shawcross, to embark on roller-coaster interviews with national newspapers, and there has been quite tight discipline about working with and through the Commission’s media staff. Whatever you think of the current messaging, the script has been consistent and pretty uniformly applied, without favouring any particular outlet or media bias. Nor have we had destabilising curve balls of the kind that a couple of previous Board members allowed themselves to propel through the press (remember ‘sticking to our knitting’?).

On the whole, I have not sensed that the Commission’s agenda is being driven by reaction to media stories to the extent that sometimes seemed the case under William Shawcross. As the DSC toolkit recognised, it is inevitable and necessary for the Commission to respond promptly when a big story erupts affecting the reputation of a big charity or giving rise to scandal, as in the cases of Oxfam and Save the Children.

The Commission is by and large conscious of its own strategic agenda – whatever we may think of it – and is not generally advancing media agendas instead. On the other hand, there is some overlap between this pillar and the next one, in so far as the media are seen as proxies for the views and concerns of ‘the public’. Some would say that the Commission still places too much weight on media stories when demonstrating its priorities for attention and action. So here comes another tick, but In this case fainter and incomplete.

Independent of Populism?

That brings us to the last pillar: independence from populism. This one is about not indulging simplistic or badly informed narratives because they might be popular, or demanded by some sections of ‘the public’, and not doing what we imagine ‘people want’ without proper regard to evidence and the law. It is about not trying to please the public in a manner unmediated by the role Parliament has mandated for the Commission, nor by sound data, practical realities and case law.

This time there is no tick – in fact, over the past few years it has become clear that the current approach is almost populist by design; setting an interpretation of public opinion about charity above other data, evidence, and legal considerations. To elaborate:

1. The Commission has started claiming to ‘represent the public’ and act as an arbiter or interpreter of what ‘the public expects’. But they are unelected and do not have the authority or legitimacy to do so.
2. They have slipped their moorings in charity law and public benefit and set out some vague propositions as to the ‘behaviour the public expects’ of charity – even though the public generally has little idea of what is a charity and what isn’t. These assertions are not supported by the Commission’s modest research into public attitudes. Too often, the Commission’s communications now make sweeping, imprecise generalisations about how charities in general must change without regard to the huge diversity of the sector, tarring the whole sector and hundreds of thousands of trustees with the same brush.
3. The Commission’s leadership is anxious to ‘call out’ bad behaviour in charities in order to show the public that the Commission understands their concerns and is on the case. This is right in particular cases and in principle, , but not when it descends into populism at the expense of precision, fairness and law. In fact, the leadership has used media opportunities to advance this populist agenda, with perhaps the two worst examples so far being the Garden Bridge and Oxfam.

In the case of the Garden Bridge, the Chair tried to make out that the very particular problems of this project somehow threatened the public’s confidence in ‘charity’ generally, in an ineffectual effort to push the narrative of how charities generally must change in line with what ‘the public expects’. Ironically, most of the public probably had no idea that this venture was a charity, still less think it relevant to their judgement about completely different organisations doing completely different things.

The Oxfam case was more serious. Following the Commission’s statutory investigation contaminated by public anger, nothing was going to stop the Commission’s leadership from ‘calling out’ Oxfam GB as an example of bad behaviour to show the public that the Commission was on its side and taking tough action to put things right.

This was at the expense of a properly balanced explanation of what happened and, particularly, why; of what not just Oxfam but also the Commission itself might have done better; at the expense too of justice, fairness and drawing conclusions that actually represented what their own investigation had shown (rather than the leadership’s preferred messaging). It was also in my view in contravention of the Attorney General’s rules on the conduct of investigations, because Oxfam’s former and current trustees and senior staff were on successive occasions given no reasonable opportunity to digest and comment on drafts of the enormous report before ridiculously short deadlines.

So to sum up: the scorecard on independent regulation shows two strong ticks, plus one fainter and incomplete one, but also one great big red cross. Populism and its close ally inaccurate sweeping generalisation is a serious weakness of the Commission’s leadership at this time. It distorts the Commission’s role, downplays law and public benefit, misrepresents incidents involving charities and trustees, sows confusion instead of clarity, and in these ways risks distracting from the magnificent day to day work that the Commission’s staff achieves in the public interest every day.