A clause of the Charities Bill giving the Charity Commission discretion to ban individuals from trusteeship is “at best a legal abomination”, a charity governance conference was told yesterday.

Jay Kennedy (pictured), director of policy and research at the Directory of Social Change, was speaking at the Westminster Social Policy Forum event, on the Charities (Protection and Social Investment) Bill, which has recently had its third reading in the House of Commons.

Kennedy highlighted clause 10 of the bill as one of the most problematic – the discretionary power from the Charity Commission to disqualify people from trusteeship. The basis of disqualification is who the Commission deem as “unfit”, or who have engaged in activities which could "damage public trust and confidence".

He said the clause would have disqualified Nelson Mandela from trusteeship.

He referred to the clause as “at best a legal abomination”. He said that the Charity Commission has plenty of powers to deal with trustees getting it wrong without the extended powers, and that this is giving the Commission – an agency of the state – the power to say that someone cannot volunteer as a trustee, and therefore is “curbing people’s civic rights based on very vague criteria”.

Kennedy said that the Bill is a mark of a “Big Brother society”. He said he was speaking on behalf of his board of trustees, and that they felt the same way as him.

Clause 9 adds new criteria for a person to be automatically disqualified from being a charity trustee, and extends the disqualification beyond trusteeship to cover the chief executive and chief finance officer positions in a charity.

Sarah Atkinson, director of policy and communications at the Charity Commission, responded to criticism of the disqualification measures in the Bill, saying she knows they are significant. She said: “We do not want these to put people off from being trustees, the worst thing would be that a myth takes hold that no-one who has ever done anything wrong in their lives cannot be a trustee”.

She said that the Commission will be working with the sector – particularly with rehabilitation charities – to work around the communications of what these new disqualification powers will mean, and the process of applying for a waiver.

Speaking further on the implementation of the Bill, she said that once it gets approved, the real work begins for the Charity Commission.

She said: “For us as the regulator, the Bill becomes an Act and then the real work starts for us as we have to implement it, and take the responsibilities that Parliament gives us – assuming it gives them – very seriously and very carefully. You’ve heard about the sensitivity and importance of those powers and we are very conscious of that."

She went on to say that particularly for some provisions, it will have to take time to prepare some guidance and support materials so they can communicate with trustees, and so they know what is happening.

Accountability

Kennedy also spoke about the accountability of the sector. He said that the sector is not directly accountable to the press, public, the minister for civil society Rob Wilson or William Shawcross, chair of the Charity Commission – but that it is accountable to the law.

But, he said, no one is talking about the beneficiaries, and all this should be about them. He said: “If the Red Cross’s income goes down by a few million because of the policy decisions that are made, how many more children in refugee camps in Syria are going to die? Who is saying that?”
He added that trustees are the guardians of making sure they are accountable to beneficiaries.

He also added that the Commission’s budget being “cut to ribbons” is a “total false economy”. He also said: "We're talking about £8m. The government probably wastes more than that on pens." 

Kennedy also criticised the “developing narrative over the last couple of years that charities are not professional enough, and they don’t know what they are doing, and that somehow when professional people enter the charity board room they surrender their human intelligence and bags of experience and suddenly become incompetent amateurs”.