A court battle looms over the Charity Commission

For the best part of a year, charities have been spared the homilies they used to receive from the former Conservative politician Baroness Stowell about what, in her view, the public expects from them. She ceased to be chair of the Charity Commission in February and no-one has yet been appointed to replace her; one of the commission’s board members, the lawyer Ian Karet, has been acting as chair in the interim and will continue to do so until the end of the year.

Dowden opens a new front in the culture wars

But the former culture secretary, Oliver Dowden, took over from Stowell the promotion of the culture wars that have surrounded charities including the National Trust and the Churchill Fellowship this year. His contribution culminated in his article on September 12 for the Conservative-leaning Sunday Telegraph and his department’s website, complaining about “a worrying trend in some charities that appear to have been hijacked by a vocal minority seeking to burnish their woke credentials”, and calling for a “refocus and resetting of the balance.”

He went on: “I have instructed those leading the search to ensure that the new leader of the Commission will restore charities’ focus to their central purpose and empower Trustees to be robust. With interviews beginning next week, candidates will be tested on how they will harness the oversight powers of the Commission to commence this rebalancing.”

The Good Law Project rises to the challenge

This intervention immediately drew a protest from the Good Law Project (GLP), a not-for-profit campaign organisation, which has argued that Dowden’s intervention broke the rules on public appointments and breached the stipulation in charity law that the commission should not be under the control or direction of ministers. Soon afterwards more than 20 charities wrote to Nadine Dorries, who took over as culture secretary four days after Dowden’s article, asking her to ensure that the appointments process was not politicised.

Nevertheless, the department announced on 26 October that a “preferred candidate” had been chosen, but did not give a name or a date for the pre-appointment hearing that has to be conducted by the select committee of MPs on culture, media and sport. (It is worth recalling that when Stowell was appointed, the government ignored the committee’s unanimous conclusion that she wasn’t suitable.)

Application for Judicial Review

The most recent development is that the GLP, after several weeks of fruitless pre-action correspondence with the department, has formally applied to the courts for a judicial review of the appointment, seeking an order that the process be re-run, and asking for a hearing before Karet’s interim appointment expires on December 25. The GLP has an 80 per cent success rate in its applications for judicial reviews, and the stage seems set for a battle in court. (In a judicial review a judge reviews the lawfulness of how a public body makes a decision, rather than the rights and wrongs of the conclusion it reaches. The most it can do is order a re-run of the process in a lawful manner.)

According to the GLP, the response of Dorries’ department to its objections is that Dowden’s requirements for the new chair were not relevant because they were not repeated in the formal application criteria. “We disagree,” the GLP said last week. “Whatever the job spec said, we think it matters that, two days before the interviews began, both the applicants and interviewers were given an emphatic steer as to the expected outcome. If the then Secretary of State, Oliver Dowden thought his words would be ignored, why did he bother publishing them?”

Nothing to see here, according to DCMS

The department told me this week that it “will not comment in any detail on cases that are currently before the Courts.” But it asserted that “the processes to date have been entirely sound”, adding that “all candidates have been required to demonstrate a strong commitment to ensuring charities remain focused on delivering their core charitable purposes and ensuring that trustees understand their legal duties, including on campaigning and political activity.”

The department would not say why the preferred candidate has not been named, so one can only speculate. If the person was named before any court proceedings were completed, for example, it would be embarrassing all round if the court ruled that the appointment process was conducted unlawfully and had to be re-run. Not naming the person at this stage would also makes it less controversial if the same person was appointed again if the process is eventually repeated in a lawful manner. We should know by November 23 whether or not the judicial review will go ahead.

Politicisation of public appointments is a wider problem

Behind all the legal jousting, however, lie some fundamental issues. One is the increased politicisation of the whole public appointments process. Peter Riddell, who recently left the post of Commissioner of Public Appointments, complained in an interview in September that there was too much advance briefing by politicians about their favourites for public office, which he said deterred other candidates, and that some interview panels were “loaded” with people with Conservative ties. He also said there was a small group of people in No 10 who “want to appoint allies and advisers to prominent public positions.”

The second issue concerns the change in the method of appointing the head of the commission, dating from the Charities Act 2006. The Labour government at the time had concluded that the previous system, in which civil servants ran the commission, meant that it was insufficiently accountable to the public and other stakeholders, and that there should be a chair chosen through the public appointments process.

The change has had mixed results, however. In the four appointments that have been made since the change, chairs of the commission have indeed been more independent than departmental civil servants; for example, they have a higher profile, can speak freely in public, and are summoned for questioning by parliamentary committees from time to time. But they have also, crucially, become increasingly identified with the government of the day. Nothing has happened recently to suggest that the forthcoming appointment will be any different, and the prospect of any change to the system seems, at present, remote.

Stephen Cook is co-author with Tania Mason of What Have Charities Ever Done for Us?, published in April by Policy Press, and available to purchase here.