You've probably read about what the case of Mond v Charity Commission for England and Wales was about. Well here is what it wasn't about.
You sometimes read about concerns in the science community about the under-reporting of null results. Discovering what is tends to grab more attention than discovering what isn't. However, understanding what isn’t the case can be just as valuable.
Firstly, some background on the case
The Charity Commission made an order purporting to disqualify Mr Mond from being a charity trustee for a limited period. To exercise the power, the Commission must first be satisfied of the following:
- the person's past conduct, whether or not in relation to a charity, is damaging or likely to be damaging to public trust and confidence in charities generally or particular charities or classes of charities;
- the person is unfit to be a charity trustee; and
- it is desirable in the public interest to disqualify to protect public trust and confidence in charities.
The Commission identified two social media 'comments' Mr Mond made over a period of some years. One from 2014 was regarded as " divisive and/or intolerant of others, particularly those of the Islamic faith". Another from 2016 was considered "Islamophobic". It is important to remember Mr Mond has consistently sought to deny that he is Islamophobic. Additionally, Mr Mond 'liked' two posts which we are told the Commission concluded had to be seen in the context of the position of the individual operating the account - a position described in the judgment as "anti-Muslim". The Commission considered these acts damaging, or likely to be damaging, to public trust or confidence in charities - and that it was in the public interest to disqualify.
The Tribunal found the conduct capable of damaging public trust and confidence in charities. Since the conduct in question was the expression of views in a public forum, the right to freedom of expression and the principle of proportionality is relevant. It comes into play in deciding if someone is unfit and what is in the public interest.
Requiring that trustees always express themselves publicly in considered and measured terms could deprive the sector of trustees. Making the two posts and two likes over a period of time was not the conduct of someone who is unfit to be a charity trustee, nor was the disqualification desirable in the public interest. The Tribunal quashed the disqualification.
That is a simplified summary of what the Tribunal decided. Here are some things it did not decide or decided were not the case.
Conduct not current and not in relation to a charity
The Tribunal found that the conduct in question was past conduct. It was not current or continuing. It found the conduct was not in relation to a charity. This is to emphasise it is not only current or continuing conduct that can meet the threshold for disqualification, nor is it conduct only in relation to charities. Past conduct is enough. Conduct that has no relation to a charity is enough.
Sobering thought: everything you or I have ever done whether or not in relation to a charity, is and remains effectively regulated by the Charity Commission with the sanction of being disqualified from being a trustee or senior manager of a charity.
Freedom of speech not relevant to likelihood of damaging trust and confidence
Arguments based on the right to freedom of speech informed consideration of fitness to be a trustee and the desirability in the public interest of making a disqualification. It did not affect the analysis of whether the conduct in question was damaging or likely to be damaging to trust and confidence in charities. That, the Tribunal says, is low threshold. The posts and likes were not condoned or excused.
Not social media 'posts'
On closer reading, it appears the Tribunal wasn't considering what is usually meant by a 'post' on the social media platform in question. Rather the case is about 'comments' and 'likes'. Is as much care needed in respect of likes and comments as for original posts?
I would suggest even more. The Tribunal agreed most people would not interpret likes of individual comments as indicating support for all that page owner's views or aims, but even so, it still took those likes in aggregate with the comments as being capable of damaging charities. Likes (and it seems to follow, comments) risk implying some element of endorsement not only of the liked or commented post, but also of the account making the post and its owner and their views. Some due diligence is prudent before engaging with material posted by others.
Posts not interpreted in light of their intended meaning
Mr Mond put the case that the comments were wrongly characterised by the Commission. Had he been writing the comments now, he would have used different terms. The Tribunal accepted the posts were written in the spur of the moment, but it evaluated them on the basis of the words used and not the meaning Mr Mond says was intended. This underlines the importance of care in formulating words when using social media, in order to capture the intended meaning.
Not a decision that it is fine to be a trustee if your past conduct is damaging trust and confidence
The Tribunal did not decide that a person should be or remain as a trustee if their social media use leads to damaging publicity for the charities. On the contrary, the Tribunal found that Mr Mond behaved responsibly in resigning from trustee positions. Explaining background, apologising for offence and resigning all appear to be factors the Tribunal took into account in deciding to quash the disqualification.
Whilst the circumstances didn't warrant disqualification from being a trustee, resigning as a trustee was the responsible course of action.
Not a cause for complacency
It is a narrow decision. In drawing towards its conclusion, the Tribunal said
"Individuals with a history of social media use, who may now, or in the future, have the capability and integrity to be effective and responsible charity trustees, but who have a very limited history of spontaneous, low-profile comments on social media that might be perceived by the broader public to be offensive when viewed later and in aggregate should not always be deterred from taking up trustee roles"
In summary the decision is about:
- spontaneous social media posts, not considered posts;
- low-profile comments, not high-profile comments or posts;
- a very limited history, nothing wider;
- a perception of offence which comes when that limited history is viewed in aggregate.
It is not about a single comment which on its own is such as to raise a public perception of offence.
Closing thoughts
Once the factual threshold of damage to trust and confidence is met, disqualification is essentially a discretionary power guided by the Commission's view of suitability and public interest. On appeal, the Tribunal's job is to form its own view and make the order, if any, it thinks should be made.
Whilst this might be the first disqualification order actually quashed, there is a collection of other cases where the Tribunal has varied the Commission's disqualification order. Cases where it has reduced the scope or duration of disqualification. The emerging picture seems to be one of a Tribunal that could, tends even, to take a more liberal view in these cases than does the Commission.
Does that mean a disqualified trustee should appeal? Mileage may vary. Cases turn on their own particular facts and the ones reaching the Tribunal aren't necessarily representative of the whole. If the Tribunal's approach really is more liberal, it won't always be - the Commission ought to be aiming to re-calibrate based Tribunal decisions.
Finally, to appeal is costly. And it's not just the financial cost, which in any event is likely to be beyond the means of most. It would be a great understatement to say that being the subject of a Charity Commission inquiry is stressful. And after that, for many, the personal cost may be too great.
All this underlines the importance to charity trustees of exercising caution before making public statements which could be regarded as damaging to the charity or the charity sector as a whole. It will be interesting to see what lessons the Charity Commission draws from this decision. Meanwhile, charities should ensure their trustees are familiar with their duties when making public statements -and consider carefully how best to frame statements on controversial issues.