If you penalise people who have done nothing wrong, it will probably cause trouble. That is precisely what happened at the National Childbirth Trust when it decided last year to demand the resignation of four trustees while simultaneously telling them that they were not being blamed for anything.
The consequence was a revolt among the membership, a campaign for reinstatement, a call for an inquiry and a lot of unnecessary damage.
The latest twist is that one of the four, who was the charity’s president as well as a trustee, has just been re-elected as president, which was not exactly a vote of confidence in the leadership. It might take some time for the NCT board to become a happy ship again.
What prompted the country’s largest parenting charity to inflict this wound on itself? When asked this question by its own members and the media, its leaders will say only that the decision was taken after it received "a package of legal and reputational advice" about the death in 2015 of a baby in a Bednest, a type of cot co-branded by the NCT.
The decision to co-brand the Bednest three years earlier was taken by NCT Trading, a subsidiary of the charity. The charity trustee board was not involved in the decision, did not endorse it and only learned of it some time later. The cot had also been certified as safe by the Furniture Industry Research Association and the charity’s lawyers reportedly concluded that all due diligence had been performed before the co-branding.
As the inquest approached at the end of 2016, the focus fell on the four of the charity’s trustees who had also been in post at the time of the co-branding. As well as seeking legal advice, the charity asked the PR firm Bell Pottinger for its view, which was that "risk of serious harm to NCT’s reputation would be significantly reduced" if were able to tell the inquest that trustees in place at the time of the co-branding had stepped down.
Bell Pottinger has since collapsed after a scandal about its activities in South Africa, where it was accused of stirring up racial hatred. But the key questions are whether its advice to the NCT was sound in the circumstances, whether the charity was obliged to follow it, and whether it was right or wise to do so. Given the information to hand, the answers, surely, are no, no and no.
As the now re-elected president, Seána Talbot, pointed out at the time, getting rid of the four trustees would undermine the charity’s legal defence that it had done due diligence and taken all reasonable precautions over the Bednest. It would also, she said, make it look as if the four had done something wrong and by implication damage the reputations of everyone who had been on the board in 2012. At the very least, the advice seems highly questionable.
Was the charity obliged to follow it? Again, no. It would have been very unwise not to follow legal advice, but its lawyers did not, it is reliably understood, propose pushing out the four trustees. The PR advice was reputational advice, and the charity was not bound to follow it. Charity Commission guidance says that if you choose not to follow professional advice, you need to show that you have considered it and say why you did not take it.
This path was open to the NCT in this case, with good arguments at its disposal, but it chose not to take it. It now hides behind the phrase "a package of legal and reputational advice", which looks as if it is trying to imply that that the PR advice carried the same weight and seriousness as the legal advice. But PR advice and legal advice are very different.
Third, was the decision right? The two reviews the charity commissioned after the inquest – one into its governance generally and one into its handling of the decision to oust the four – specifically excluded consideration of whether this decision was correct. Had the NCT been confident that the decision was indeed correct, would it have insisted on this exclusion? Nothing has happened to suggest the decision was right.
Gripped by anxiety?
So why did the charity, led by its then chair Helen Stephenson (now chief executive of the Charity Commission) and Nick Wilkie, the chief executive, who were both relatively new to the NCT, insist on the resignations of the two who refused to go quietly, even threatening them with counter-resignations and suspension of their membership of the charity? On this most important question of all, the charity has circled the wagons and answer comes there none.
It is clear that the NCT was potentially vulnerable and had to tread very carefully, following legal advice. Even though it was not criticised at the inquest, which returned a verdict of accidental death, evidence was given that the cot was in fact dangerous, and the design has since been modified. The manufacturer and the NCT have recently reached an undisclosed settlement with the bereaved parents and apologised to them. But – unless there is something that the charity cannot or will not mention - the question of trustee resignations had no bearing on this outcome. No evidence has emerged that it would have been worse for the charity if they had not resigned.
In a world where charities are under a cloud and the media is poised to lay into them at the slightest opportunity, it is hard to avoid speculating that the leadership was so gripped by anxiety over possible criticism and damage to the charity’s reputation that it decided to follow the Bell Pottinger advice without question rather than examine it sceptically. In doing so, it appears to have misjudged how a highly engaged membership would react to something that appeared so unjust. It is dismaying that the leadership now seems to have adopted the maxim of "never apologise, never explain".
When things go wrong in charities, it is usually because of mistakes in governance. This case is no exception. The NCT is an outstanding charity, supporting parents during pregnancy and in the first three years of their children’s lives, and with luck this episode will cause no damage to its work on the ground. If there are lessons for other charity leaders, they are probably to keep a cool head when in a tight corner, act fairly towards all concerned, take account of the views of your members and be prepared to admit to mistakes.
Stephen Cook is contributing editor of Third Sector