All change at the Commission

It was revealed last month, albeit without the fanfare that usually accompanies these things, that Tina, Baroness Stowell of Beeston MBE PC, the Tory peer, former Leader of the House of Lords, former Lord Privy Seal and current Chair of the Charity Commission, will not be standing for reappointment and that her tenure will therefore come to an end in February after only three years in the role.  What – or who - might be next for the regulator?

A controversial appointment

The very fact that Baroness Stowell was appointed at all was subject to criticism and so it is perhaps fitting that her departure was equally controversial, announced (as it was) in a Daily Telegraph podcast rather than a public statement - or even at the recent conference of the Charity Law Association, at which she gave the keynote address.

In February 2018, the appointments of Baroness Stowell's two predecessors having been frowned upon because they were both felt to have been overtly political (William Shawcross and Dame Suzi Leather were each considered to be too close to the governments of their day), the sector had rather hoped for a rather more impartial, and certainly more qualified, Charity Commission chair.  However, Baroness Stowell having been earmarked as the government's "preferred candidate" and yet roundly rejected by the DCMS Select Committee on the basis that she had insufficient experience in the sector, her appointment was confirmed by Matt Hancock, then the culture secretary.

With the exception of NCVO (and even that organisation admitted that there were "significant problems" with the recruitment process), the various charity umbrella bodies objected to Stowell's appointment but their comments fell on deaf ears.  Perhaps someone ought to have listened because, throughout her tenure, she has been criticised more or less whenever she has spoken in public, and in particular for her repeated assertions that charities need to rebuild public trust in the sector. Charities, she has said, need to recognise the "special status" that they hold in the public mind, and this means that they should be "meeting public expectations of what charity means" in the way in which they go about their work.

To be fair to the Baroness, it is true (at least as far as the Commission's own research is concerned) that the public puts less trust in charities than it does in the general man/woman in the street.  But the Commission has perhaps become too focused on public expectations of charities during the Baroness's tenure, without considering whether or not those expectations are reasonable.  We fear that, in many respects, they are not – at least if the online comments made in response to charity news stories are anything to go by.

One of the main problems with the Baroness's approach is that she has tended to tar all charities with the same brush, implying whenever the Commission has discovered evidence of mismanagement in a particular charity that they are all as bad as each other and that the whole sector somehow needs to buck up its ideas.  But charities are not all the same – each one exists for a specific purpose, and is supported by members of the public who identify with its charitable object and what it is doing to pursue it.  Those who donate to charities do not do so because, as Baroness Stowell appears to believe, they are drawn to some nebulous idea of "charity" as a whole.

Andrew Purkis, who was a board member of the Charity Commission from 2006 to 2010, has pointed out in his blog for the Civil Society website that Baroness Stowell had a "habit… of equating charity with 'charities'", to the extent that "the Commission's mission is now worded as enabling 'charity' to thrive, whereas Parliament has tasked [it] with enabling charities to thrive".  He sees this as an attempt on the part of the Commission to spread its remit to embrace what it has called “the spirit of charity” or, in his words, "the whole world of giving and self-sacrifice in pursuit of social good". He finds this concerning, because this is not the role of the Commission as set out in statute, it is at best vague and is practically "an invitation to mission creep" (that is, there is a risk of it causing some charities to lose sight of the specific charitable purposes for which they were established).

As charity lawyers, our main concern regarding the Commission's direction during Baroness Stowell's tenure is that there appears to have been a growing emphasis on what charities should do - almost to the extent that the Commission now sees itself as an arbiter of morals generally - rather than on what charities must or can do in the legal sense.  This is hardly helpful: charities already have enough on their plate, without having to assess whether or not – to use another of the Baroness's buzz words – they are showing sufficient "humility".

The Baroness's call for humility did not go down well in the sector – particularly given that it was made at a time when charities are facing multiple hardships as a result of Covid-19.  In the words of Kristiana Wrixon, head of policy at ACEVO: "Having a more modest view of the role of charity in society is not going to reopen charity shops; it isn’t going to allow trading in museums, cafes and heritage sites to resume; it isn’t going to bring back thousands of cancelled fun runs and coffee mornings. Humility is not what is going to keep services running and doors (virtual or not) open amid the largest UK health crisis in 100 years and a global recession."

Or, as Andrew Purkis put it: "The Commission’s chair now poses as a custodian on behalf of the public of all the moral qualities associated with charity… Yet [she] is not the Archbishop of Canterbury.  It is not her job to promote charity with a small 'c'".

What next?

Interestingly, Baroness Stowell refuses to be drawn on why she isn't standing for a second term but, whatever the reason, it seems unlikely that she will be missed.  It remains to be seen whether her successor will be any better in the eyes of the sector, bearing in mind that she told the Telegraph podcast that her approach has "taken root" at the Commission and that whoever replaces her "is going to need to continue'.  We suspect that the sector is rather hoping for a change in regulatory focus.

Indeed, ACEVO has co-ordinated a letter from ten charity sector organisations to Julian Knight, who is the current chair of the DCMS Select Committee, requesting that transparency, accountability and political neutrality are prioritised in the appointment process for the next Chair so as "to restore trust across the sector that the non-executive of its regulator will act politically impartially".  The letter calls for the appointment of an appropriately qualified candidate "who is not a prominent member of, and has not held political office in, any party".

The letter points out that, while charities expect to be held to account by their regulator, they expect it to do its work "with expertise and political independence at the highest levels of the organisation, and a clear commitment to the legal remits of regulation."  Where such expectations have not been met, it goes on, "trust between charities and their regulator has been damaged, and we would like to see that trust rebuilt."

It is also clear from the letter that the organisations believe that Baroness Stowell has gone beyond the Commission's remit with her emphasis on meeting public expectations, as well as legal requirements, which it describes as a "significant shift from the function of the regulator".

We can but wait and see: at the time of writing, the DCMS had not set out when the recruitment process is expected to begin.