Who should be able to be a charity trustee?

Charity trustees often have high levels of responsibility, and face difficult decisions which impact directly on people’s lives. It’s therefore little wonder that certain restrictions apply to who can be a charity trustee.  But does the Charities (Protection and Social Investment) Act 2016 take these restrictions too far? 

In accordance with the Charities Act, an individual is currently prevented from acting as a charity trustee if they have an unspent conviction for an offence of dishonesty or deception. However, the Charity Commission considered these criteria too lenient and therefore sought to broaden the scope of automatic disqualification.

As a consequence of this, under the Charities (Protection and Social Investment) Act 2016, the list of offences resulting in disqualification extended far beyond dishonesty and deception, to include convictions for theft, fraud, terrorist offences, perjury, money laundering and misconduct in public office.  And it’s not just charity trustees who are affected.  Any senior managers or staff with “control over money” will also be disqualified if they have a conviction relating to any of the specified offences.

All those affected will either have to resign from their positions or to apply to the Charity Commission for a waiver, which will be considered on a case by case basis. If they fail to do so, and they are discovered to be subject to the automatic disqualification rules while in post, the charity will have to dismiss them and notify the police and the Commission.

The new disqualification rules go beyond what was initially sought by the Commission, and the Commission has been seeking to obtain the agreement of the Government that the commencement date for the automatic disqualification provisions will not occur before September this year, to give charities time to prepare. Given that over 10 million people in the UK have criminal convictions, it seems the period of preparation may well be needed. 

And is the new legislation really in the best interests of charities in any case? Concerns are being raised as to the potential knock-on effect the Act could have. The change to the disqualification rules is expected to hit charities working in some sectors, such as prison reform and rehabilitation of offenders, particularly hard.  While certain individuals may have a criminal conviction, they might also possess a particularly valuable or useful skill set, or personal experience, to bring to the role they hold. Should charities be denied the opportunity of benefitting from such skills or experience?

The Charity Commission is in the process of producing guidance in this area. In the meantime, charities seeking to recruit new trustees should make sure they:

• check the Commission’s list of removed trustees before any appointments, and
• ask any new trustee to sign the Commission’s Declaration of Eligibility and Responsibility to confirm they are able to act.

It would also be prudent to make appropriate enquiries of any new senior managers before appointment. Charities should start checking their position regarding existing trustees and senior management, as well.