Leona Roche warns that proposed changes trustee guidance might have wider implications for the charity sector. 

At a time when charities are finding it difficult to recruit and retain trustees, and young trustees in particular, there is a pressing need to encourage people to volunteer for this vital public service. 

Unfortunately, in its proposed new guidance for trustees, the Charity Commission is in danger of doing the opposite. Moreover, the contemplated changes could signal a more draconian interpretation by the Commission of all its guidance.
 
The proposed reworking of CC3, The Essential Trustee: what you need to know, what you need to do, contains a very significant change. In many Commission guidance documents, there is a differentiation between ‘must’ and ‘should’ requirements. ‘Must’ means legal requirements that charities or trustees have to abide by. ‘Should’ means good practice that they should follow unless there is a good reason not to.
 
But in the revised CC3, the definition of ‘should’ has undergone an important shift. Now, ‘should’ means good practice that trustees are expected to follow, and if they don’t, they are warned they may be in breach of their legal duties, and be guilty of misconduct or mismanagement. Although the Commission has said that trustees’ legal responsibilities have not been enlarged, I am concerned that, in practice, ‘should’ requirements are going to be treated as obligatory. Good practice is, in effect, being elevated to the status of a legal requirement. The Commission has given reassurances that this is not the intention, but I remain concerned. The risk is that trustees are likely to become more cautious in the decisions they take, and the Commission more heavy handed in its regulatory approach.
 
The change could also have much wider repercussions. Will the new definition of ‘should’ be retrospectively applied to all the Commission’s existing guidance? Will the change be read into existing guidance even if the guidance itself is not amended? At this stage, we don’t know, but this is a genuine question, not fear-mongering.
 
The language of the proposed new guidance has also become markedly more negative. The previous guidance emphasised the rewards of trusteeships and that trustees change lives for the better. The proposed replacement is concerned solely with legal responsibilities and the threat of sanctions. As The Essential Trustee is a document the Commission wants all prospective and existing trustees to read, this negative sentiment could put off potential trustees and inhibit existing trustees from taking reasonable risks – it may even convince some serving trustees to step down.
 
I appreciate that the Commission does not have an easy task. The Essential Trustee is an introduction to trusteeship, and the duties and legal responsibilities of trusteeship must be clearly set out. But I believe the Commission has gone a step too far. With the consultation now closed, it has a chance to reflect and take on board the views of the sector before setting things in stone.

Leona Roche is a senior associate at Bates Wells Braithwaite.