Evolution or revolution at the Charity Commission?

After years of delay, and no little controversy, the Charity Commission’s new chair, Orlando Fraser QC, is finally in post. What can we expect from the commission under his leadership?

We got some clues in Fraser’s maiden speech to a conference for trustees earlier this month.

He plans “to lead an expert regulator that is fair, balanced and independent” and wants to “embrace the opportunities given to us by automation, digital, and artificial intelligence” and “the gathering and effective use of data”.

Fraser’s overall tone offered a refreshing departure from the hectoring rhetoric of his predecessor Baroness Stowell, who seemed to view the commission’s “public trust and confidence” objective as the be-all-and-end-all purpose of charity regulation, superseding the other four objectives set by parliament and even the regulator’s proper quasi-judicial role.

So far, Fraser sounds much more supportive and empathetic about the challenges that charity trustees face, and promised to improve the commission’s guidance, online services and accessibility.

Helping trustees get it right, by investing in the systems that assist them in their work, must be better than waiting until they get it wrong and spending those same resources on enforcement.

Yet the opposite holds true far too often. Plenty of charity chief executives and trustees will tell you (usually off the record) that they have found themselves in a quagmire of spiralling enforcement proceedings by the commission, which felt very far from balanced and fair – as if there were a presumption of wrongdoing.

And there might be no effective redress apart from engaging legal counsel at huge expense, for example via the charity tribunal.

Recall that it was during Fraser’s previous time on the commission’s board as a senior legal member between 2013 and 2017 that the “balance” between support and enforcement began to tilt towards the latter.

Indeed, some language from his speech was more in line with his predecessor’s: “Intentional wrongdoers, the fraudsters, the extremists, the aggressors and the grossly negligent – all of whom, in their own way, are poisoning charitable status for everyone else,” would be dealt with “robustly”.

But much depends on how these words are interpreted in practice.

Indeed, Fraser’s own track record calls into question his judgement about “balance” and “fairness”.

In the case of the Joseph Rowntree Charitable Trust, which had funded the non-charitable advocacy group Cage, emails published during court proceedings showed that Fraser advocated following a course of action that he knew might not be legally correct in order to demonstrate that the regulator was acting “robustly”.

The regulator’s actions, which attempted to fetter the discretion of JRCT’s trustees, were exposed as legally flawed.

Then there was the notorious guidance on how charities should behave during the EU referendum debate, which was so poor it had to be withdrawn and reissued.

Produced on Fraser’s watch, it showed a lack of “fair and balanced” understanding of the law on campaigning and didn’t even properly reflect the commission’s own guidance on political activity.

So, the most important phrase I drew from Fraser’s speech is this: “While we will report to parliament, we will be beholden to no one in applying the law, but the law itself.”

The board and the executive of the commission will come under pressure from every side in the coming years.

Populist pressure, the press and politicians will surely seek to hold sway over the commission’s interpretation of the law.

Will Fraser resist these better as chair than he did previously as a legal board member?

We’ll need to hold him to his word.

First published on the Third Sector website.