Peter Stanford: Apply common sense and make the law the last resort

Charity donors don't expect their money to be spent on courtroom battles, our columnist argues

Peter Stanford
Peter Stanford

My watch broke at the start of the summer holidays.

It is not an expensive one but it belonged to my late father, so has sentimental value. Somehow I haven't found a minute (no pun intended) to get it fixed, and have spent the past few weeks without an easy way of keeping track of time.

Apologies to all those who have ended up waiting for me longer than anticipated, but in some ways it has been a blessing. It is the antithesis, I keep thinking, of those lawyers who have stopwatches attached to their phones, recording chargeable units of six minutes during every client call.

Lawyers - the commercial ones, rather than the sainted human rights campaigners - get a fairly bad press: not as toxic as that of bankers, journalists or estate agents, admittedly, but there is a stereotype of them growing fat on the proceeds of us all wanting our day in court. Measuring phone conversations in chargeable minutes might be part of this, but perhaps the problem really lies with us.

There have been a number of long-running legal sagas in our sector of late, not least the battle by the Leeds-based adoption agency Catholic Care to overturn a Charity Commission ruling that it cannot change its objects to exclude same-sex couples from its adoption service.

That ruling cuts across the charity's Catholic ethos because, unaccountably (and I say this as a mass-going Catholic), the institutional church still clings to its view that two men or two women who fall in love are doing something unnatural. Any belief in God, surely, must start from the position that we are all as God made us.

But such theological considerations are for the Catholic Herald. What caught my eye as a charity trustee was the decision of Catholic Care to begin a fourth appeal to the Upper Tribunal - with a legal status equivalent to the High Court - in order to continue to operate as it has always done.

I couldn't help wondering how much four appeals equals in legal costs. And with reports suggesting that there are an increasing number of children waiting to find adoptive parents, is it wise to incur such bills when there is so much need out there?

The costs of resorting to law

Perhaps I am being unfair. Catholic Care argues that the changes demanded of it would make it impossible for it to operate at all - that the children it currently places would be added to the waiting list. And I certainly don't intend to judge this particular case.

My point, addressed to all trustee bodies, is to highlight more generally the high cost of resorting to lawyers, and the impact that such an approach has on service delivery.

Charity law has undoubtedly become more complex in recent years, while the associated legislation with which all of us must grapple - as employers, tenants and so on - is equally labyrinthine.

So inevitably we have a duty to explore the legal implications of the decisions we take at trustee meetings. Some boards routinely have a lawyer in attendance - perhaps an unnecessary expense for many.

But are we at risk of becoming too litigious, falling in with a wider social trend to sort out problems before a judge, rather than by discussion, compromise and a careful weighing of the costs of legal proceedings against their potential benefit if, indeed, we do win?

The decision as to whether to resort to lawyers is never easy, but my instinct would always be to be dragged there with the greatest of reluctance. If that sounds like prejudice, then bear in mind something a senior barrister once told me.

The group of people who go to the greatest lengths in their private lives to avoid litigation, he said, are litigators, solicitors and barristers, because they know (a) how unpredictable the outcomes can be, (b) how deep the dent in your bank account could be and (c) the human cost in terms of emotion and time wasted.

No-win, no-fee offers from lawyers deal only with (b) above. It all comes back to what I have argued before: the most essential quality of a trustee and a trustee board is common sense.

If there is a common-sense way to resolve a disagreement, even if that means making a public climbdown or stepping off the moral high ground, for goodness' sake take it. Our donors gave us their cash to support worthwhile projects, not for charity trustees to spend on courtroom fights. Law should always be our last resort.

Peter Stanford is a writer and broadcaster, director of the Longford Trust and outgoing chair of Aspire

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