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Uncaging the Charity Commission

The regulator’s unprecedented moves to block funds to the Muslim advocacy group Cage raises troubling questions for public debate in Britain.

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There are over 164,000 registered charities in England and Wales, with a combined annual turnover of over £64bn. The best known, such as Oxfam, have become giant organisations, with trading activities that are generally run as separate businesses. Three quarters have an annual income of less than £100,000, and many are micro-organisations relying on a handful of volunteers. One worthy example is the National Exotic Hedgehog Rescue Service (“We specialize in African Pygmy Hedgehogs, Long-eared Hedgehogs, Lesser Tenrecs, Greater Tenrecs and Common Tenrecs, although we will take in any spiny/prickly creature”).

The Charity Commission for England and Wales has a giant task simply in keeping track of so many different organisations of such varied size and motives, with activities in every corner of the world. Simply by maintaining a central register of them all, with names of officers, records of their activity and (except for the very smallest) published accounts, the Commission performs an essential task of public scrutiny and helps to weed out the criminal and the incompetent.

Historically, the Commission has always been cautious in saying what a charity ought to mean and what activities it should support or promote, leaving that job for parliament and the courts. Parliament’s first effort came as far back as the Charitable Uses Act of 1601. But it was the Charities Act 2006, finally brought into law by none other than Ed Miliband, then a Cabinet Office minister, that dealt the Charity Commission a hospital pass. It established 13 separate grounds for any organisation to claim that it had a “charitable purpose”. But it also said that none of these purposes in themselves were enough for an organisation to qualify as a charity. It also had to show that it had to provide a “public benefit”. This slightly nebulous concept has been around in the law since 1601, but parliament has never tried to define it. It declined the opportunity in 2006, under Labour, and then in 2011, under the current coalition, when charity law was consolidated.

The Commission, understandably, declined to undertake a task that parliament had funked. It did not try to invent its own definitions of public benefit but preferred to rely on established case law. This was especially true of religious charities. In recent years, it has been urged to exclude some religious groups from charitable status because they are prejudiced against women or gay people and on other grounds of public policy – such as promoting Creationism as a scientific theory, or imposing unreasonable restrictions on the lifestyle choices of their members, or inducing them to part with money or property with the promise of heaven or the fear of hell. The Commission declined all these pressures. Only one religious group – the tiny Christian sect known as the Exclusive Brethren – failed the public benefit test, not because of what they believed but because their organisation was deemed to have limited engagement with the wider public. Even in this instance, the commission eventually gave in and the group won charitable status last year.

Please excuse this long preamble, but it sets a context for what appears to be happening now.

Under its new chairman William Shawcross, the commission seems to have abandoned its caution. Shawcross is a celebrated author and historian, once identified with the left, now with the right, who has never shied from controversy. It was during his previous job as a director of the Henry Jackson Society that he reportedly said: “Europe and Islam is one of the greatest, most terrifying problems of our future. I think all European countries have vastly, very quickly growing Islamic populations.”

It is understandable that some Muslim charities feel aggrieved at his appointment. More importantly, though, under his leadership the commission shows signs of turning itself into a political regulator as well as a charitable one.

‘Never, no matter what the circumstances’

The commission has now very publicly turned against the organisation known as Cage, which campaigns for fair trials and just treatment for suspected and convicted terrorists. Cage is not a charity and is therefore not subject to the commission, but it has received funding from two organisations, the Joseph Rowntree Charitable Trust and The Roddick Foundation - though the latter hasn’t given money to Cage since 2012. The commission virtually ordered the two trusts to cease funding and, in a move we believe to be unprecedented, it told them that they must never fund Cage again, no matter what the future circumstances.

Indeed, the Charity Commission has gone further. We can reveal that the regulator has sent either letters or emails to at least three other Muslim charities (there could be more) pressurising them not to fund Cage. The groups that received the threats asked not be named. The letter states: “Statements made recently by Cage, and the public reaction to them, raise clear questions for a charity considering funding its activities, or associating with it, as to how they could comply with their legal duties as charity trustees. It would be difficult to envisage there not being significant reputational damage to any charity intending to work with the organisation.”

The commission also asks the charities to clarify their links to Cage, and to make clear past and future funding plans and any events planned with the advocacy group.

The Charity Commission confirmed that it has contacted a number of groups where there are “current or historic links between these charities and Cage”.

It added: “As the Commission’s enquiries are ongoing it is not appropriate to comment further – particularly as there is no indication, at this time, that any of these relationships are financial or that the Commission has determined that any of the charities have acted inappropriately...It is part of our normal practice to contact and correspond with charities where we have identified concerns or where we require information to ascertain whether any concerns exist.”

For its part, the Joseph Rowntree Charitable Trust (JRCT) has cried foul. In a message to supporters, it said that it is concerned by “unprecedented regulatory pressure” and that it doesn’t see that “this style of regulatory intervention is proportionate or warranted”.

A letter in The Times earlier in the month signed by around 200 prominent figures, including the actresses Vanessa Redgrave and Joanna Lumley, and former Labour leader Lord Kinnock, decried the regulatory pressure JRCT had come under and said charities should be free to “pursue their objectives within the law”.

The Association of Charitable Foundations, a large membership group which supports grant-making bodies in the UK, said it is meeting with the commission in a few weeks to voice concern over its action.

Why?

The commission did not give any grounds for its judgment in the long explanatory statement it published on its website on March 6. It did not say: “Cage has no charitable purposes and provides no public benefit, and never will do.” Such an assertion would have been unsustainable. The promotion of human rights is one of the charitable purposes explicitly mentioned in the 2006 Act, and that includes human rights for thoroughly unpopular people – suspected terrorists and even convicted ones. It is of clear public benefit that anyone’s human rights are protected, anywhere in the world, because that strengthens everyone else’s human rights.

The commission did not say: “Yes, indeed, Cage does do some work to promote human rights but its real purposes are much more sinister. It exists to promote religious hatred and to support war and terrorism by Islamic extremists.” Had it said this, it would almost certainly have been forced to defend such a judgement in court.

The commission did say this: “Public statements by Cage officials heightened concerns about the use of charitable funds to support their activities. In our view, those statements increased the threat to public trust and confidence in charity and raised clear questions for a charity considering funding Cage’s activities as to how the trustees of those charities could comply with their legal duties as charity trustees.”

Cage officials certainly made a whole series of statements that the great majority of public opinion regarded as foolish or noxious. Most glaring was Cage research director Asim Qureshi’s failure in a press conference last month to explicitly condemn Isis or Mohammed Emwazi, believed to be the executioner Jihadi John who appears in the gruesome beheading videos of western hostages.

Another was Qureshi’s favourable description of the young Emwazi, even though the context makes it clear that he was praising the Emwazi he knew several years ago, not the  “Jihadi John” who has been responsible for the deaths of his fellow countrymen.

Qureshi also blamed MI5 for playing a part in radicalising him, which prompted the full wrath of the government. Cage’s claim that Emwazi was going on safari to Tanzania in 2009 and not (as the security services suspect) planning to join the Al Qaeda-linked Al Shabaab in Somalia is also extremely perplexing.

Qureshi damaged himself and Cage even further in a subsequent interview with Andrew Neil, when he refused to distance himself from suggestions that he agreed with the so-called “Islamic concept” of stoning adulterers to death. In Qureshi’s logic, some Islamic scholars believe that stoning is sanctioned by Sharia law, created by the Prophet, and that to condemn it would be to condemn the Prophet himself and the entire Islamic faith. His position is nevertheless ultra-conservative and one not shared by the majority of British Muslims.

There was also a well-researched investigation of Cage by the journalist Andrew Gilligan. This showed Cage had defended two convicted terrorists who had joined an Al Qaeda-linked group in Syria and who the judge described as “dangerous”. The group also dismissed western coverage of Boko Haram as “demonising Islam” and defended the extremist Islamic preacher Anjem Choudary’s al-Muhajiroun group, which famously supported the 9/11 attacks.

There are many other positions that Cage has taken, and accusations it faces, that many would find odious. One may reject, even despise, all of these positions by Cage and still be disturbed by the Charity commission’s action against it, and the chosen grounds.

A punishment for unpopularity?

In the most recent legislation, parliament certainly gave the commission the duty of maintaining public trust and confidence in charities in general. But this was another hospital pass because it gave the commission no guidance on how to do this. It did provide it with enforcement powers over charities, but broadly speaking these are directed against administrative failures, wilful misrepresentation, fraud or financial recklessness and mismanagement.

Parliament has never asked the commission to punish organisations for saying stupid things or wildly unpopular things. Nor has it asked the commission to intervene every time the trustees or officers of a charity made a bad decision. If parliament ever did that, the commission would be overwhelmed with demands to act. Charities typically attract passionate and argumentative people, who often object fiercely to decisions by their management. Rightly, the commission stands aside from such arguments, as do the courts, unless a decision is made in bad faith, or with improper procedures, or is so bad that no reasonable person in a position of trust could possibly have reached it. The commission has not asserted any of those grounds for acting against the Joseph Rowntree Charitable Trust or The Roddick Foundation in their support for Cage.

If the commission chairman William Shawcross has decreed a new approach, he is perfectly within his rights. Since parliament has repeatedly ducked its responsibilities to say what charity ought to mean, perhaps we need a more assertive and proactive commission.

However, it is vital that the commission applies such an approach consistently and universally – and gives every group in our society confidence that it has done so. To be blunt, this confidence does not exist among Muslim communities. They have noted recent research by think tanks such as the Overseas Development Institute and Demos that there seems to be an increasing bias against Islamic organisations.

Moreover, the commission must not confuse its task of protecting public confidence in charities with protecting them from being unpopular.  

The commission perhaps deserves sympathy, because parliament has defined its duties poorly. Nevertheless it needs to explain why it has acted in the way it has, and show that its actions have been lawful. It cannot take what appears to be unprecedented action against dubious or unpopular organisations without giving a clear account of what it has done, why it has done it, and which specific rules compelled them to act or have been breached. At the moment all this is worryingly unclear.

 

*After a ruling in the high court, the Charity Commission has now backed down on its position that charities must not support Cage. 22nd October, 2015.

About the authors

Peter Oborne is the former chief political commentator of the Telegraph and reports for Channel 4's Dispatches and Unreported World. He has written a number of books identifying the power structures that lurk behind political discourse, including The Triumph of the Political Class. He is a regular on BBC programmes Any Questions and Question Time and often presents Week in Westminster. He was voted Columnist of the Year at the Press Awards in 2013.

Alex Delmar-Morgan is a freelance journalist in London and  writes for a range of titles including the Daily Telegraph and The Independent. He is the former Qatar and Bahrain correspondent for the Wall Street Journal and Dow Jones. 


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