ANALYSIS: The Charity Commission’s “problematic culture” must be eradicated

The recent Baume Report- exclusively revealed on Unionist Voice- laid bare the “problematic culture” within the Northern Ireland Charity Commission. It is a report which has already on 19 October 2020 been accepted by the Department of Communities, who have adopted its recommendations and others put forward by the Department’s own Head of Governance.

ANALYSIS: The Charity Commission’s “problematic culture” must be eradicated

By Jamie Bryson 

The Charity Commission of Northern Ireland (CCNI) has a culture of superiority and elitism running throughout it. Career civil servants were brought into post and empowered with draconian statutory powers, despite having no legal qualifications. It is no surprise therefore that more often than not they got it badly wrong.

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Since its inception the Commission had been operating unlawfully. The McKee case in the High Court, and again in the Court of Appeal, laid bare the level of illegality in relation to decision making. Incredibly, as this site pointed out at the time of the judgment, the McKee case rendered the registration of every single charity in Northern Ireland up until May 2019 unlawful.

I blame the system more than the individual. If you give a child a machine gun, then you can’t really complain when they let rip with their new toy- and probably inadvertently riddle Granny with bullets.

Individuals with no understanding of the powers they had been given, set about their task by issuing orders and decrees like confetti. Undoubtedly some grew to like the power they thought they had when they could, for example, threaten a pensioner with frightening High Court action if they refused to desist from criticising CCNI’s actions.

This culture of unchecked power grew incrementally year by year. The complaints procedure is difficult to navigate for a lay person, and often complaints (formulated to the best of a persons ability and with real effort put into them) were bounced back and dismissed with a lot of legal jargon, which more often than not was arrant nonsense.

In a case I was involved in as a representative, a pair of civil servants were conducting tape recorded interviews of a Pastor under oath, clearly pleased with themselves and enjoying the power they believed this gave them.

After I had written to the Commission with a formal complaint outlining that they had no powers to administer such an oath, in the first instance their (apparently) legally qualified Commissioner wrote back dismissing the complaint. I am to this day entirely at a loss to understand how he had so badly misunderstood the statute.

After the involvement of the current Chief Commissioner Nicole Lappin and the Attorney General, the Commission (to the credit of Ms Lappin) admitted this error and apologised.

That is but just one example of how, if not for persistence and the knowledge to deduce that the Commission was talking complete nonsense, that a complaint could have fell by the wayside and thus the dangerous cycle of re-enforcing the legitimacy of bad decisions would have continued.

There is a deeply embedded culture within CCNI that distains any challenge to their authority, and quite frankly epitomises the liberal elite. Fortified by years of unchecked power, with the BBC acting as a de-facto propaganda outlet, this has allowed the cabal within the Commission to grow in arrogance, and defiance.

A simple google search will show how the BBC newsroom reported uncritically every single press release by the Commission, and benefitted from a shocking amount of ‘leaks’ from CCNI (work that one out for yourself) which were spun to the advantage of the Commission. When CCNI were found to have been acting unlawfully in the High Court and Court of Appeal, the BBC newsroom fell strangely quiet, now why is that?

No matter how badly the Commission have it wrong, or the extent of their errors, they fundamentally believe that the ‘little people’ should never have the audacity to challenge them. They look to the newsroom at Broadcasting House for a sign that the propagandists are coming over the hill on their white horse to vanquish any dissenters.

This cabal fails to see the writing on the wall. There is a growing momentum not just against this unelected quango, but against the liberal elite establishment in general.

The Commission wish to reject the Baume report on the grounds of a failure in the procedural process. There may well of course be merit in the point that if a public servant- or any person- is to be criticised in a report, that they should have the opportunity to comment in advance of its publication or circulation.

The problem for the Commission is that they are simultaneously making much of a distinction between procedural process and substantive decisions. They are seeking to defend plainly unlawful decisions of their own, on the basis that whilst they were wrong on process, that the Commission nevertheless wish to stand over the substantive decision.

I would have far more sympathy for the Commission’s position in relation to the Baume report if they weren’t trying to apply one standard to a decision which effects them, and quite another standard in relation to decisions taken by them.

So what next?

There has to be a mechanism whereby the wrongs of the past, and the harm caused, can be fully investigated and if appropriate remedied, but at the same time those new in post must be given the chance and space to make things better.

Nicole Lappin was appointed Chief Commissioner in August 2019, and Sarah Finnegan as Head of Enquires in early 2020. Both are qualified barristers and it appears from evidence I have seen, and my own personal experience, that there is a genuine desire to do things differently and most importantly to be open to grassroots engagement. To treat the ‘little people’ with respect and dignity, much to the despair no doubt of the elitist cabal that has held a stranglehold on the Commission for many years.

So, for those of us who have spent many years chipping relentlessly away against this regulatory body, we must think carefully about what comes next.

Is the correct approach to- in an act of vengeance- obliterate the Commission (which is easily done via a flurry of complaints and applications to the Charity tribunal, and if appropriate the High Court) but inadvertently waste the opportunity for good, decent and qualified people like Ms Lappin and Ms Finnegan to be given the chance to make changes which are clearly required?

Or, would it be more prudent to direct energies into securing an ‘investigation and remedy’ process for the ‘old’ Charity Commission, and simultaneously engaging proactively to lobby for the re-shaping of the work of the Commission, arguing for all the changes necessary to make the body workable?

I say the latter approach of securing real, meaningful and lasting change is the correct approach. There is an opportunity and wide-open door to lobby and advocate for change. The systemic culture can be incrementally eradicated. It would be surprising if some of the old cabal did not fight on in an effort to cling to their power base, but they are urinating in the wind. Its over, things will never be the same again.

I would like to see the new Chief Commissioner and the Head of Enquiries undertaking a formal piece of work to hear the concerns of those who have been affected by engagement with the Commission. However such a process would need to be time-bound (three-months perhaps) and rather than being about remedying old issues (that requires an external process), rather it should be focused on discussing solutions for making the Commission better for the entire charity sector going forward.

There is little merit in bogging down new people in post with constant firefighting in relation to the actions of their predecessors. It is a waste of time having such persons (who on a prima facie basis appear committed to making positive change) if they are going to spend their time being battered in relation to the past. They need to be free to work in the present, and build for the future.

In light of that, I believe the Commission should appoint an independent QC to conduct a complete review of the past actions of the Commission (in a general and holistic way rather than specific incidents). This review should be open for written evidence to be submitted by members of the public with appropriate standing (those who have operated within the Charity sector or been otherwise affected by the discharge of the Commission’s statutory functions).

Finally, the Commission should formally rescind all orders issued via an unlawful process. It is a waste of time and resources trying to defend these cases before the Charity Tribunal on technicalities; it will only further damage the standing of the Commission, needlessly cause further strain to those affected by them and will most likely end up back before the High Court, with huge costs for the Commission. I believe they would ultimately lose again, but even if they won, then what would they have achieved? Has anyone sat down and carried out a cost versus benefit analysis and asked whether defending the unlawful orders is in the public interest?

It is important in all of this to remember that the vast majority of persons were only doing their job (albeit appallingly). Only a very small minority were actually personally invested and acting with questionable motives.

Notwithstanding all of that, every person deserves fair treatment and due process, and despite the fact the Commission denied that to so many, we should still fight for their right to be treated fairly and equitably.

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