The Charity Commission recently concluded the National Trust did not breach charity law as a result of its regulatory compliance case involving the charity, and found there were no grounds for regulatory action.
The case was opened followed the publication by the National Trust of an interim report into its research examining links between its properties and histories of colonialism and slavery in September 2020. This led to some public criticism of the charity, particularly in certain sections of the press, and by some MPs.
Ultimately the Commission concluded that the “trustees were able to demonstrate that they explicitly considered and determined that commissioning and publishing the report was compatible with its charitable purposes.”
So is there anything to see here? What can we take from this?
1. The conclusion of the Charity Commission comes as no surprise from the charity law viewpoint.
The National Trust’s charitable objects are:
"The preservation for the benefit of the nation of lands and tenements (including buildings) of beauty or historic interest and, as regards lands, for the preservation (as far as practicable) of their natural aspect, features and animal and plant life. Also the preservation of furniture, pictures and chattels of any description having national and historic or artistic interest."
The Charity Commission’s own published guidance makes it clear that charities established to preserve buildings are expected to be set up for the advancement of education of the public. It is therefore a somewhat fundamental ‘given’ that preserving a building of historic interest quite properly includes researching all aspects of the building’s history and what is of historic interest about it, and publishing the results.
So it is unlikely you will find many charity lawyers disagreeing with the Commission’s conclusions, but there are wider questions as to why the Commission felt it necessary to take action in the first place.
2. Charities can engage on issues which are controversial or divisive as a means of achieving their aims- but care is needed
Helen Stephenson, CEO of the Charity Commission confirmed in her blog here that charities can engage on controversial or divisive issues, as long as the trustees can show that they were at all times driven by their charity’s purpose, and the interests of those it was set up to serve, that they have followed relevant Charity Commission guidance, and have given careful consideration to the potential reputational impact on the charity.
In this case the Commission concluded the trustees had recognised and carefully considered the potential negative reaction that could result from the publication of the report, including before commissioning the research, the charity consulted a panel of 2,000 members, “finding considerable support for research into challenging histories, provided the findings were appropriately researched and contextualised.”
3. Trustees are now left with uncertainty as to what they have to do to demonstrate they have properly considered the possible impact of engaging on a controversial issue
On the one hand the Commission applauded the National Trust in recognising and carefully considering the potential negative reaction that could result from the publication of the report, including consulting in advance with 2,000 members.
But in the next paragraph the Commission criticises the Trust’s planning and approach for not fully pre-empting or managing the potential risks to the charity, in light of the “strong and divided views generated by the publication of the report.”
The Commission stated that the Trust could done more to clearly explain the link between the report and the Trust’s purpose, but as noted above that would seem to be self-evident.
Trustees may therefore be left wondering what they will have to do to satisfy this requirement to avoid potential Charity Commission scrutiny. Some further clarification would be welcome from the Commission as to what practical steps it would expect trustees reasonably to take in this situation, particularly where there is a range of strongly-held views on the issue and there will be controversy whichever route the trustees take. After all, it would have been perhaps even more controversial for the Trust not to be engaging on issues relating to colonialism and slavery.
Without further clarity from the Commission, the case may risk having a ‘chilling effect’ on trustees’ willingness to engage on controversial issues, even when this would be an important and entirely valid way of supporting the interests of their beneficiaries.
4. The raising of the compliance case itself gives rise to concerns as to the independence of the Charity Commission
Those who have had personal experience of complaining to the Commission about a charity will know that the Commission’s risk-based approach to enforcement means that it will normally take an issue involving very significant actual or potential concern for the Commission to take further action.
It has been reported that aside from the media ‘storm’ generated by the report, only 3 complaints were made to the Commission during the relevant period about the work of the National Trust- which begs the question as to why the Commission considered it necessary to take action in the first place?
Concerns have been expressed that the Commission may have felt it needed to be seen to take action against the National Trust as a result of political and media pressure, driven largely by vocal elements of the charity’s membership, the press and certain MPs uncomfortable about the direction of travel of the National Trust on this issue, as opposed to any obvious concerns about whether or not the trustees had acted appropriately.
Does this now mean trustees will experience differing regulatory scrutiny from the Charity Commission, depending on the nature of the issue their charity engages with, who might find it controversial, and how loud their voice is?
Many charities serve important causes which will not always be universally ‘popular’ with sections of the public, the press or the government of the day. Engaging in public debate will often be necessary for those charities to give a voice to their beneficiaries and highlight their cause.
It is vitally important that trustees of all charities feel confident they will be treated impartially, equally and fairly by the Charity Commission if they validly seek to engage on controversial issues in support of their purposes. This case potentially dents that confidence.
5. The case illustrates the difficult and complex role of trustees of a charity with a large voting membership
The National Trust has a voting membership of over 5 million people encompassing a wide spectrum of different views. Trustees of membership charities of course need to listen to and take into account the views of their members when taking decisions, but charities do not exist for the benefit of their members.
Ultimately the trustees must ensure their charity carries out its purposes for the public benefit, and in the National Trust’s case, that ‘public’ is the nation as a whole, not just those who engage with the Trust’s activities, with trustees needing to take account of all the different factors and considerations that involves.
This can be an incredibly difficult balancing act when there are differing, strongly held views among the membership and wider public on relevant issues, which can give rise to disputes and the diversion of energy and resources away from the charity’s work in order to manage these.
This extra layer of complexity for trustees and the potential for disruption and distraction is one of the reasons why when advising charities on governance structures, we generally caution against having a wider voting membership unless the trustees can identify very clear and compelling reasons in the best interests of the charity’s beneficiaries to have one.