Losing the National Trust?

I’m left uneasy following the Charity Commission’s conclusion last week that the trustees of the National Trust did not breach charity law. My unease is not because of the conclusion itself, which I would have thought was a foregone one, but because I think we learn from this curious case rather more disturbing lessons than the Commission says we must learn from it.

In September 2020, the National Trust published an interim report into its research examining the relationship between colonialism and the slave trade and the properties in the charity’s care. A media frenzy ensued from a predicable section of the national press, decrying ‘wokery’ and the denigration of our national history and great figures of our past. The Charity Commission then opened a regulatory compliance case, with the Times newspaper reporting on 24 October that the Commission had approached the charity “after receiving complaints from the public about its review into links between its estate and slavery during the British empire.”

How easy is it, I wonder, to get the Charity Commission to investigate a charity? You can be sure that it receives thousands of complaints about charities and that it does not launch (or publicly announce) regulatory investigations into many of them. So, you might expect it received quite a few complaints about this issue in order to prompt such swift and very public action. Well, no; in November 2020, Stephen Delahunty of Third Sector used the Freedom of Information Act to ask the Commission how many complaints it had received about the work or purpose of the National Trust between 1 August and 20 October 2020. The answer was three.

So, why was the Commission’s investigation opened? I have not been involved in the case and have no special knowledge of it - I’m going only by what I can find easily in the public domain - but it seems that it was justified on the basis that the Commission needed an explanation of whether carrying out and publishing the results of the research was within the charity’s objects. In October 2020, Kirsty Weakley in Civil Society reported the Commission as saying in relation to its investigation:

“Everything a charity does must help it deliver on its charitable purposes, for the public benefit. We have written to the National Trust to understand how the trustees consider its report helps further the charity’s specific purpose to preserve places of beauty or historic interest. We await a detailed response from the charity, and in the meantime have drawn no regulatory conclusions.”

Similar statements were reported from the then Chair of the Commission, Baroness Stowell, who clearly wanted to understand the relationship between the report and what she described as the charity’s “clear, simple purpose which is about preserving historic places and places of great beauty and national treasure.”

The National Trust’s objects, specified in Acts of Parliament, are set out on the Charity Commission’s website as follows:

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.

Not quite so simple. But common sense, let alone a rudimentary knowledge of charity law, would tell you that preserving something of historic interest properly includes researching and preserving what is of historic interest about it. And a single visit to a building in the care of the National Trust (or indeed a five minute perusal of its website) would inform you that this is what the National Trust has always done.

Wordsworth House in Cockermouth is not, to my untrained eye, architecturally exceptional, certainly not in the balance with other properties in the collection; what makes it significant is Wordsworth’s connection with it, its history, and that is what the National Trust seeks to bring alive there for us. History is at the heart of the National Trust’s purposes and activities.

I’m in no better position than any ordinary person to judge the quality of the research undertaken and the validity of the conclusions but the basic premise of the charity’s research is obviously valid: some of the great wealth of the United Kingdom was derived from our trade in and control over our colonies, some of that was connected with the slave trade, and a great deal of the country’s historic wealth finds expression in the country’s great houses and parks; so isn’t it interesting to examine that thread of our history and use that to inform our knowledge about the past that the National Trust is helping to preserve?

I have arguments from time to time with the Charity Commission about charity law but the Commission really does, as you would hope and expect, know charity law extremely well. So it seems extraordinary that it could pose to the National Trust such an elementary question as how the report helps further its charitable purposes. There cannot be a lawyer or experienced regulator within the Commission who could not have answered that question immediately and without bothering the trustees about it. Yet the Commission did ask it and did so in the guise of formal regulatory action and with great public fanfare. 

It is no surprise that the Commission was satisfied, nearly six months later, that there had been no breach of charity law. That answer having been so obvious from the outset, seeking it cannot really have motivated the Commission’s intervention.

I do not think that the Charity Commission, as an institution, has concerns about ‘wokery’, which consume that part of the press and those parliamentarians who clearly drove the Commission to investigate this matter. It’s not the Commission’s job to take sides on matters of public opinion like this. So that can’t be the reason.

Neither do I think the Commission, as an institution, shares the misunderstandings of those outraged people about the nature of history or believes that comfortable, self-affirming history is the only proper history. I do not think the Commission takes the view that one record of history is an absolute truth that must not be disturbed. So that can’t be the reason either.

The reason, I think, lies in the Commission’s public statements at the conclusion of the case. These tell us that the Commission took action because the concerns raised with it “had the potential to damage significantly the charity’s reputation and undermine trust and confidence in charities more widely”, although that was not apparent (publicly, at least) when it began its engagement. We are also told that “people rightly have high expectations of charities, and when their actions cause controversy it is our job to listen carefully to those concerns and take robust action when necessary” , and it is hoped that those who told the Commission that the charity’s report made them feel “uncomfortable” will be reassured that the Commission has examined the charity’s actions very closely.

I do wonder whether the Commission considered the possibility of indignant public outcry (or the longer term impact on the National Trust’s reputation) had the charity taken the equally controversial decision not to investigate these links. I am fairly sure that there are many people who would have felt just as strongly about that.

Charities are told that the lessons they should learn from this matter are that trustees’ decisions “must be reasonable in the circumstances, and they should be evidenced, recorded and explained”; and that trustees “should be thoughtful about the impact of their actions on their supporters and the public more widely and consider any likely concerns or controversy before they act.” But are those the real lessons? 

The National Trust is a responsible, well organised and well advised institution and the Commission of course found that the trustees and senior managers had indeed been thoughtful about all those things. The Commission found that “before commissioning the research, the charity consulted a panel of 2000 members, finding considerable support for research into challenging histories, provided the findings were appropriately researched and contextualised.” Nevertheless, the Commission concluded:

“Publication of the report did generate strongly held and divided views, and in light of this, it is reasonable to conclude that the Trust’s planning and approach did not fully pre-empt or manage the potential risks to the charity. Specifically, the Commission says the charity could have done more to clearly explain the link between the report and the Trust’s purpose.”

The National Trust evidently acted impeccably in this situation and this criticism seems just to be thin justification for the Commission’s high profile intervention. It is a low blow and I am afraid it sends to trustees the message that, however well they do, the Commission is willing to undermine them publicly in the preservation of its own reputation.

The Commission is also telling charities that if they do anything controversial, the trustees must first have considered the possible impact and have recorded a full explanation of their decision, and that a failure to do so may be mismanagement. Yes, it is wise and good governance to do all those things. But when a charity is dealing with something that has obviously controversial outcomes, whatever it does, and when the choice made is clearly within the objects and powers of the charity, to what lengths do trustees have to go? Are charities now expected to form focus groups to analyse the impact on their charity’s reputation of every act or omission that might lead to controversy? Is an act so obviously within the purposes of a charity as the National Trust researching and reporting on the history of its buildings an act of mismanagement unless it is supported by careful analysis of its potential impact? If even a 2000 strong focus group doesn’t quite cut it for the Commission, is the real lesson that trustees had better watch their backs if they do anything controversial? Or maybe it’s just in relation to some things that are controversial.

None of this is satisfactory and I am left with the uncomfortable feeling that the Commission, in fear of the impact of controversy on the reputation of charities (and on its own reputation), was simply pressurised into taking action against the National Trust by the powerful megaphone of the press and some MPs. I am left with the impression that the Commission, in the face of certain types of pressure, will more readily assist in fuelling a media pile-on against a charity than it will stand as a bastion to protect that charity’s independence and integrity. In doing so, the Commission risks damaging the very trust and confidence in charities that it is in fact trying to preserve.