Orlando Fraser’s speech at Charity Law Association Conference 2023

In a speech at the CLA’s annual conference, the Charity Commission Chair sets out his vision for the Commission and his personal ambitions and priorities as Chair.

Orlando Fraser KC

It is a particular pleasure for me to be here with you today, among so many of my legal colleagues, all professionals in the practise of law of England and Wales, and all dedicated particularly to its application in a charitable context.   

But we share more than a profession in common. We are, I trust, united in a commitment to protecting and promoting the health and vibrancy of the charitable sector in England and Wales.

The Commission exists because of a centuries-old consensus that charity is precious, and must be protected and promoted in the interests of society as a whole. 

And as CLA members, your work, ultimately, is in service of the objects of the charities you advise and represent.  

So while the law is our living, and our guide – more on that in a moment – our shared purpose is charity.

This does not mean the Commission and CLA members will always see eye to eye, which is expected given our different roles as advisers and regulator.

Some in this room may even have challenged a Commission decision in some way, at some point – difficult thought that is to believe.

Whether, in correspondence on case work, through the courts, or in the comment pages of the charity press.

I welcome this, broadly speaking.

It is right that regulators are held to account for the exercise of their statutory powers, and it is necessary, in a free society, that public bodies are open to criticism of their work.

I may not always agree with or accept the arguments put forward in the courts or elsewhere.

But reasonable checks and balances are, ultimately, both a sign and a guarantor of a healthy, accountable, system.

I will use my time here with you to set out my vision for the Commission and my personal ambitions and priorities as its Chair.

In principle, my vision is a simple one: I am determined to lead an expert Commission that is fair, balanced, and independent.

I will say a little more about what these individual terms mean for the Commission and its work in a moment.

First I’d like to elaborate on an overarching promise I made during my pre-appointment hearing, and which I am following through in all of the work I do at the Commission.

Namely that we will be led solely by the law in the exercise of our statutory functions.  

To your ears, this may not be a revolutionary statement to make.

It certainly doesn’t require revolutionary change within the Commission.

Our remarkable record in successfully defending challenges in the tribunal demonstrates this. That record is unarguable evidence of how seriously our staff take the need to exercise our powers within the confines of the law, and within our own operational guidance and published frameworks based on the law.

My concern, instead, is about perception and visibility. I want to ensure the Commission is not just led by the law alone, but also understood to be led by the law alone.

That we are vocal about this, unapologetic, proud about our status and ethos as a law-led statutory regulator.

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.

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.

During my remaining time as Chair, some will no doubt criticise me, and the Commission, in the strongest terms for one or more decision we make.

We will come under attack.

But I am prepared. Because my ambition is not to be popular today, but to ensure the Commission is respected into the future. To ensure its role as independent regulator remains recognised, valued, and is ultimately preserved.

That respect and recognition is not just an end in itself, but it is necessary to ensuring that people continue to trust, and support, our charitable sector. That every community, and all parts of society, continue to benefit from charities working to promote the public benefit, and further the collective good.

That is why I have been, and will continue to be vocal and explicit about being led by the law alone.

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.

It can, indeed be a very effective and cost-efficient tool.

There is nothing in law that prevents trustees from making good use of the medium.

But the law says that everything they do must, ultimately, be in furtherance of their purposes. And in order to meet their trustee duties, set out in law, trustees must take proportionate steps to mitigate the risks that are inherent in social media activity.

Separately, I have gone out of my way – quite literally, all the way to Romania, accompanied by a journalist – to signal my support for the many international aid charities on our register, who do great work to promote universal values of kindness and compassion around the world.

Some wish to demonise aid charities and their work. But so long as they are furthering their purposes, in line with our guidance, based on the law, the Commission and I are behind them.

And in a recent inquiry report, we were explicit in making clear that it was entirely lawful for the charity in question to take legal action against the government over one of its policies.

Some may disagree with the charity’s decision – but we examined it, it was lawful, and so we said so, loud and clear.

Last but not least, in this context, I am delighted that the legal expertise on the Commission’s Board has been greatly strengthened through the appointment of the very eminent charity lawyer Ann Philips, a past chair of the CLA no less, whom many of you will know personally, and who is universally respected.

Her expertise, insight and experience have already made their mark, and I look forward to working closely with her in the years ahead. 

Throughout my chairmanship, and supported by a strong Board, I will work in this way, emphasising the legal basis of all of our decisions, positions and approaches.

I trust, that as legal professionals, passionate about the future of charity, you will support me in this.

I’d like now to briefly explain what I mean when I say I am determined to lead an expert Commission that is fair, balanced and independent.

These principles are in a sense simple. But that does not always equate to easy, and in practice, delivering on these aspirations will require hard work and ingenuity.

For example: maintaining and growing our expertise relies principally on our continued ability to recruit and retain the best staff, and continuing progress in our use of data and artificial intelligence.

As an employer, we must remain a workplace of choice for ambitious, talented, hardworking people, and we must retain, inspire, develop and motivate our people over time. Within the confines of tight spending limits, and in the context of a cost-of-living crisis, this is a bread-and-butter, practical challenge for the Commission’s senior leadership, and one they and I take very seriously. And I mention it because I know it’s a challenge shared by many charities, as well as by other public bodies.

Strengthening the way we gather and use data remains a crucial aspect of expert regulation, and involves a broad range of work. For example, last week, we made the new Annual Return available.

The updated question set will help us better assess risks facing charities, as well as enhancing the transparency and accountability of the sector. For example, the new return will improve our understanding of charities’ reliance on certain types of incomes, and help us – and others – gain a more accurate picture of the geographical areas in which charities operate in England and Wales.

On this – I am aware that some charities are having issues onboarding on the new My Charity Commission Account service and therefore with filing their electronic documents. Most are successfully onboarded, but some are experiencing problems. I would like to use this opportunity to make clear that the Commission will ensure that no charity is disadvantaged because of difficulties accessing the service.

We are also in the early stages of work to better understand how developments in artificial intelligence, AI, will impact charities and their work.

As regulator, we will never be, nor is it our ambition to become, a world-leading expert on the ever-changing applications of AI. But we must develop an ongoing understanding of the benefits and risks that using AI may present to charities.

This will allow us to ensure that in this, as in other areas of charity activity, trustees are meeting their legal duties and responsibilities. It is already clear that AI presents particularly interesting questions around trustee responsibility and accountability, and so we are working actively to better understand the issues, liaising also with the Office for Artificial Intelligence which sits within the Department for Science, Innovation and Technology.

Fairness I hope, requires little elaboration here among this audience. It is a principle that runs like a thread through the legal systems of England and Wales, and it is a core facet of justice. There can be no justice without fairness, and vice versa.

Fairness within a regulatory context does not imply all those who come into contact with us will receive the outcome they hope for.

Fairness does not mean we can satisfy every complainant, or agree with every party to a dispute within a charity, or bend to the representations of every trustee involved in a case.

But we must treat everyone equally, and ensure our processes are fair and consistent, even if the outcome is not what our interlocutors would wish.

Here, too, there are challenges. Some of those we deal with have loud voices, deep pockets, and powerful friends. It can require moral courage and determination to ensure that we listen as closely to those who have less power and fewer means, and whose voices carry less weight, whether in the media or elsewhere.

But if we are to be fair, and led by the law, we have to demonstrate that courage and determination.

Balance is especially relevant in the context of our compliance case work. It means that we will respond proportionately where there are problems in charities, depending on the specific circumstances we encounter.

We will exercise leniency, where appropriate, when trustees make honest reasonable mistakes from which they are learning.

But we will take robust action where we consider a charity or its purposes is being exploited, or harmed by abuse or negligence.

A balanced, nuanced approach to regulatory concerns means that the same issue or breach – for example an unauthorised trustee payment – may result in different regulatory responses, depending on the wider circumstances.

A consistent, risk-based approach – marked by balance and fairness – does not mean, and indeed precludes, identikit outcomes. 

This is entirely in line with our regulatory and risk framework, and, of course, by extension with the law, which, as you know allows us as regulator discretion in the exercise of our functions.

Independence, finally, is neither simple, nor easy, and has many facets.

Here, I would like to stress that I consider the Commission must remain free from undue influence from any outside party.

That includes, of course, party politicians, who often take a close, and, naturally, partisan interest in our work, which is their right.

We listen to them, mindful of their democratic mandate, and we explain ourselves. What we do not do is take direction from party politicians. 

We must also remain independent of the sector. Again, this does not mean we hunker down in an ivory regulatory tower, closed off from the views and experiences of charities and sector bodies.

Far from it, independence allows for dialogue, for listening, for changing our mind when strong arguments are put forward.

We demonstrated this most recently in the changes we made to the new social media guidance following a full consultation with charities and the public.

Sensible, constructive arguments were made about aspects of the draft guidance which some felt were unclear or unhelpful. We received a helpful consultation response from the CLA, among many others – as you may know the CLA established a working group to develop a joint response.

Some respondents, for example, felt the draft could be clearer in explaining what is, and is not, expected of trustees in monitoring their charity’s social media activity.

We listened, and improved the guidance, which is now published on GOV.UK, and which I encourage you to view if you have not done so already.

More widely, I know that the Commission’s legal team values hugely the engagement it has with the CLA, on a wide range of policy and operational issues impacting the charities you represent, and the sector as a whole.

But the Commission is no more beholden to, or indeed intimidated by individual charities or their legal representatives – no matter how eminent or forceful – than it is beholden to or intimidated by party politicians.

I will say it again:  there is one authority I consider the Commission bound to, and that is the law.

So I hope I have set out clearly what I mean by a law-led, expert Commission that is fair balanced and independent.

But, more than that, I hope that you will recognise those principles in our work – in what we do and say – in the months and years ahead.

So, in conclusion, I would like to thank individual CLA members for the work you do for your clients, especially the professional, value-added work of which I know many of you do that positively impact charities.

And I’d like to thank the CLA for its work in promoting the understanding and knowledge of charity law among its members, and for your engagement with, encouragement of, and constructive feedback to the Commission.

The sector is better governed and stronger for the work of CLA members, and we are a better Commission for the support and influence – the critical friendship – of the CLA as an organisation.

Thank you.

Published 13 October 2023
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