Contested heritage and the National Trust: no breach but lessons to be learnt
20 April 2021
The Charity Commission’s recent conclusion that the National Trust did not breach charity law by producing a report examining links between the estates in its care and historic links to slavery and colonialism will have been welcome news to many charities similarly grappling with contested heritage issues.
However, caution is advised as the Trust’s commitment to learning from this experience is applauded, and a warning note given to others to ensure that a charity’s actions are always clearly and publicly linked to its charitable purposes.
A regulatory compliance case was opened in September 2020, following the publication of the 115-page interim report, which sparked furious public debate backlash from amongst the National Trust’s own members as well as the wider public. The 115-page report includes sections on the global slave trades, goods and products of enslaved labour, compensation for slave ownership, abolition and protest, the East India Company, and the British Raj. A factual gazetteer lists the 93 places and collections that have strong historical links to Britain’s colonial past.
Amidst considerable debate in the public sphere, a number of formal complaints were made to the Charity Commission that the Trust had acted beyond its charitable purposes, thereby breaching charity law.
The National Trust is an unusual charity in that it is governed by a series of acts of parliament and amending legislation dating back to 1907. At the time of writing, its charitable purposes are recorded on the Charity Commission’s website as:
“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.”
After a thorough examination of the report alongside the charity’s governing documents, recent annual reports and accounts, and a formal meeting with the trustees and senior management, the regulator determined that that the Trust had provided a “well-reasoned” response to the question of how the report furthered its charitable purposes. This they did through explicit consideration of the question as part of a rigorous decision-making processes, analysis of the exposure to reputational risk, and extensive consultation with a 2000-strong panel as to whether it should research its challenging histories. The conclusion of that consultation was that there was considerable support for the report, provided that the findings were appropriately contextualised.
Whilst the press release reporting the Commission’s findings were unequivocal in that there were no grounds for regulatory action against the Trust, the accompanying message that there were still lessons to be learnt will serve as a caution to other charities which find themselves considering issues of contested heritage or troubled history. In particular, the Charity Commission’s view was that, regardless of the steps taken, the National Trust “did not fully pre-empt or manage the potential risks to the charity…[it] could have done more to clearly explain the link between the report and the Trust’s purpose.”
Reflections and responses
In light of this case, the Charity Commission’s chief executive has called on charities to be especially mindful of the impact their actions will have on their beneficiaries, supporters, volunteers, members and donors – the very people upon whose support they rely. In her recent blog post ‘Engaging with controversial or diverse issues – reflections for charities’, Helen Stephenson writes:
“…charities must be able to show that they are driven, not by the background, world view or political inclinations and interests of their leaders, but by their mission and purpose, and by the needs of the people or causes they serve. They 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. And they should remain alive to these risks on an ongoing basis.”
Across the heritage sector, charitable organisations are prioritising these issues on their agenda, either voluntarily as a pre-emptive or in response to existing calls to rethink how history can be presented within our public spaces. For example, the Heritage Alliance – a membership organisation representing, promoting and lobbying for the sector in all its diversity – is frequently engaged with Caroline Dinenage MP, Minister of State for Digital and Culture, as the Culture Secretary’s “retain and explain” policy is bought within a new legislative framework. And, with more than 16,000 churches and 42 cathedrals in its care, the Church of England has acknowledged the pain and difficulty many communities will face dealing with these issues within the faculty jurisdiction (the church’s own legal planning system), and guidance is due to be published in the late spring to aid and assist these deliberations.
Key considerations for the future
Whilst this remains a highly sensitive subject, with the public debate showing no signs of slowing or dissipating in strength of feeling, there are a number of practical points that charities and their trustee boards should bear in mind when engaging with these issues.
- Objects, objects, objects – whatever action a charity decides to take with respect to its contested heritage, it must always be properly and thoroughly considered against its charitable purposes as set out in its governing document.
- Keep clear and full records of the decision-making process and analysis undertaken. Make minutes of debates held, and be able to point directly towards the rationale for making the conclusions reached.
- Ensure all members of the board and senior staff are fully conversant with the six legal duties of charity trustees as set out in the Charity Commission’s guidance :
- Ensure the charity is carrying out its purposes for the public benefit
- Comply with the charity’s governing document and the law
- Act in the charity’s best interests
- Manage the charity’s resources responsibly
- Act with reasonable care and skill
- Ensure the charity is accountable
- Be even more aware of reputational risk and any possible impact a charity’s actions may have on its members, stakeholders and the wider public – challenge more relaxed assumptions and scrutinise vigorously.
- Keep these matters under regular review – ensure that the charity is able to engage and respond, including revising any risk assessment in light of developments as they occur.
If you require advice on any of the issues raised in this article, please get in touch with a member of the Birketts’ Charities Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at April 2021.