Orlando Fraser, K.C. on the role of Charity and Charity Regulators in a Fractured World
The Charity Law Association Limited just recently adjourned its annual conference last week. Orlando Fraser, the muckety-muck at The Charity Commission for England and Wales delivered keynote remarks. He shared some interesting insights about civil society and the regulator’s role in civil society, particularly in a world of relative truth and social divisions. Here are a few excerpts:
The rule of law matters to me personally, it is a core principle of my world view. Not least, because the law is universal in its application (in this country at least) and is therefore levelling – all men and women are equal before the law. Our legal system thus has a unifying function, as does charity, in a very different, but no less important way. But this is not just a personal mission. It is my firm view that being understood as a law-led regulator of charities is especially vital for the Commission right now, in the specific context in which we are operating.
Because the law is a safe harbour in a volatile world. We live in an increasingly divided society, in which public discourse is becoming ever more polarised, and coarser. Personal attacks undermining the motivations of opponents are becoming the norm, not just in party politics, but in wider public debate.
The work of charities, and by extension our role in regulating them, is often at the cutting, biting edge of the most sensitive, divisive of these debates. In that context, I will continue to encourage charities themselves to engage in public discourse in a way that is tolerant and respectful of different views and perspectives.
And given I am speaking to a room of legal experts, I’d like to point out that this need for charities to avoid aggression and personal attacks, but instead demonstrate tolerance and respect, is not a discrete extra-legal requirement, but is founded not least on the well-known duty of trustees to protect their charity’s reputation. But just as charities should be mindful to engage with others with respect and tolerance, so the Commission itself needs to be mindful of the atmosphere and culture within which we operate.
It would be all too easy for us to become swept up by or weaponised in polarised debates. To be used or misused by parties intent on pursuing ideological aims via regulatory outcomes. We can defend against this only if we are, and are seen to be, led solely by the law in the way in which we go about our work.
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We must be recognised by people of all backgrounds and political persuasions as an honest broker, motivated not by opinion, ideology, or sentiment but by the will of Parliament as expressed in statute. There are times when the Commission comes under intense public pressure to take a certain approach, or make a particular decision. Whether that’s in the way we exercise our function as registrar of charities, in our work making authorisations and permissions, in the way in which we tackle concerns about charities or in our approach to guidance and advice to charities. We will always listen, we will always take seriously the perspectives of our many stakeholders. But we will go only where the law leads us.
I have, for example, been clear from day one of my chairmanship that charities are free to campaign robustly in furtherance of their purposes. Some didn’t want to hear that. But it’s what the law says. Similarly, some have called on me to challenge supposedly ‘woke’ charities. To them I have said that ‘wokeness’ is not a term that has any legal or regulatory meaning whatsoever, and that, for this reason, I wouldn’t really know where to start in tackling it. However, I am equally clear that we must enforce the limits of what the law allows in the context of campaigning. Because let’s be clear: the law is not endlessly permissive here.
Campaigning by charities must be firmly in furtherance of a charity’s purposes – a charity is not a mouthpiece for the personal views of its chief executive or other staff members, no matter how well intentioned or firmly held those views may be. Linked to this, charity campaigning must have a credible evidence base and trustees must be able to show that a campaign is an effective means to a clearly defined charitable end – campaigning is never an end in itself. This may be self-evident to many of you as it is to me. But I often hear it suggested that there is something inherently beneficial in charities speaking out. Campaigning is no more inherently or universally beneficial than any other activity a charity might undertake – it is only right if it is right in the specific context of a charity and its work.
Finally, and again I hope self-evidently, charity campaigning must be otherwise lawful. Charities cannot commit or condone unlawful acts of civil disobedience or defame others, no matter how well such actions might go down with their core supporter base. I am clear that the Commission will be robust in holding to account any trustee where campaigning fails to comply with our guidance, or the law on which it is based. Similarly, our new guidance on charities’ use of social media is clear in its legal basis: social media can be used by charities to connect with their audiences, and campaign in furtherance of their purposes.
darryll k. jones