Oxfam scandal and charity regulation: guarding the safeguards

As further details emerge about shortcomings in the way Oxfam and other relief organisations have been managed and regulated, Paul Magrath considers the obligations that the law imposes on both trustees of charities and the Charity Commission to safeguard the vulnerable.

The story which broke in The Times on 9 February revealed that some employees of the charity Oxfam, while engaged in relief operations after the earthquake in Haiti in 2010, had hired local prostitutes to visit their accommodation and take part in orgy-like parties referred to as “young meat barbecues”. Prostitution is illegal in Haiti and, to make matters worse, some of the girls were younger than the age of sexual consent.

It was also reported that, following an investigation by the charity, some of those involved, including the charity’s country director in Haiti, were allowed to resign quietly, while others were dismissed for gross misconduct. But when the matter was reported by Oxfam to the Charity Commission, it “did not detail the precise allegations, nor did it make any indication of potential sexual crimes involving minors”.

The matter seems to have been hushed up in order to protect Oxfam’s reputation as a charity, on which its funding largely depends, and its ability to continue to provide disaster relief. But there is also a question about whether the Charity Commission itself did as much as it might have done, or was as transparent as it should have been.

Involvement of Charity Commission

Helen Evans, who was Oxfam’s global head of safeguarding from 2012 to 2015, when interviewed on Channel 4 news on 12 February, said she had repeatedly asked for more resources to investigate abuse while working for Oxfam, before blowing the whistle to the Charity Commission in June 2015. But she was “extremely disappointed” by the commission’s failure to meet with her or ask for any further information about her concerns – not only in relation to sexual exploitation and abuse on location, but also in relation to children as young as 14 volunteering in UK shops who were being put at risk due to failures to run criminal record checks on shop staff. The commission’s response was only to assert that Oxfam’s position on checks at the time was legal.

Nor was any action taken after Evans wrote to her MP, who in turn wrote to several government departments, including the Department for International Development (DFID), the Home Office and the Children’s Commissioner. It was only after the press picked up the story that the Charity Commission became more responsive.

The result was its ‘Oxfam: case report’ published in December 2017. This is quite brief and does not go into much detail about what it calls “recent and non-recent safeguarding incidents”. It states, somewhat blandly, that: “Many of the allegations reported against senior country staff relating to sexual abuse and exploitation were not substantiated… However, there clearly have been incidents of behaviour that did not meet the organisation’s culture and values and which have brought into question how confident trustees could be in the charity’s wider people management systems.”

However, it has since emerged that the Charity Commission was in the process of boosting its safeguarding scrutiny before the Oxfam story broke in the mainstream media. In a recent interview in the Sunday Times, the chair of the commission, William Shawcross, said that in January this year they had written to over 1500 charities about their failure to set up safeguarding policies. But he said many of them resisted and had hired “expensive lawyers”, as he put it, to “thwart” the commission in carrying out its statutory duties.

Those statutory duties derive from the Charities Act 2011, part 2. Under s 15(1), the commission’s general functions include: “3. Identifying and investigating apparent misconduct or mismanagement in the administration of charities and taking remedial or protective action in connection with misconduct or mismanagement in the administration of charities.”

The safeguarding duty

As I reported here in relation to the Presidents Club scandal last month, charity trustees have a duty to make assessments of “reputational risk” arising from their organisation’s activities, and that includes the question of adequate safeguarding. Failures of safeguarding have an obvious downward effect on any organisation’s reputation, but in the case of a charity it can be critical not only to achieving its charitable objectives but to its very survival.

With stories emerging about Save the Children, MSF (Medecins Sans Frontières) and other big charities, the idea that the Oxfam scandal is not an isolated incident but merely an example of an endemic problem with sexual abuse could make this yet another example of what trusts lawyer Barbara Rich has called “toxic philanthropy”. (That said, all big organisations have problems with, and policies for dealing with, sexual abuse and harassment.)

Following its report on Oxfam last December, the commission updated its Safeguarding Strategy. This states that: “Trustees should proactively safeguard and promote the well-being and welfare of their charity’s beneficiaries and take reasonable steps to protect these beneficiaries, and others who come into contact with their charity, from harm…”

The Commission requires charities to report serious incidents, including “harm to your charity’s work, beneficiaries or reputation” from, inter alia, safeguarding incidents.

“If a serious incident takes place, you need to report what happened and explain how you are dealing with it, even if you have reported it to the police, donors or another regulator.”

The Charity Commission has also updated its Regulatory and Risk Framework (no doubt in the wake of the Presidents Club scandal, but interestingly just days before the Oxfam scandal broke). This describes the commission’s own approach as “proactive” and “risk-led regulation”. It also stresses the importance of trusteeship, saying “trustees should have appropriate processes in place for identifying and assessing risks, and deciding how to deal with them” and urging them to report any serious incident to the commission.

Further investigations

The commission has now opened a statutory inquiry into Oxfam. Meanwhile, on 20 February the Commons Select Committee on International Development, as part of its own recently launched inquiry into sexual exploitation in the aid sector, heard evidence from Oxfam, Save the Children and the Department for International Development (DFID) on sexual exploitation in the aid sector.

In his written evidence, Kevin Watkins, Save the Children’s chief executive, put the problem in a nutshell:

“In case after case in our sector, and in institutions across our society and globally, there is one common theme in the incidents that have been reported: an abuse of power by men who exploit their position as gatekeepers to money, status, employment and, in the case of development agencies, aid. That abuse is overwhelmingly directed towards women and children and we need to stamp it out now.”

Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project.