Sector welcomes bill report's views on Charity Commission's discretionary powers

The report on the draft Protection of Charities Bill gives it broad approval but suggests reducing the level of discretion the regulator would have to act

Charity Commission
Charity Commission

Charity sector bodies have welcomed recommendations in the report on the draft Protection of Charities Bill that would reduce the amount of discretion the Charity Commission would have over enforcing any new powers.

The draft legislation, published in October, proposes giving the commission various new powers and extending some existing powers. The draft bill was scrutinised by a cross-party committee of MPs and peers whose report – published today – gives it broad approval.

Elizabeth Chamberlain, policy manager at the National Council for Voluntary Organisations, said some provisions, in particular the discretionary power to disqualify someone from trusteeship and the new system of statutory warnings, "would have given the commission too much power to act on potentially subjective grounds".

She said: "The committee agreed with our proposals for provisions here to guard against inappropriate use of these powers, and we hope the government takes its suggestions on board."

Chamberlain also praised the process of consultation before and after the draft bill was produced, contrasting it with what the sector felt was a lack of consultation in 2013 on the lobbying act. "This is how all legislation should be dealt with," she said.

Jo Coleman, a partner at IBB Solicitors who chaired the Charity Law Association’s working party on the bill, welcomed the report as "very well considered". CLA had been concerned about the discretion given to the commission in relation to the proposal for statutory warnings. Although the committee does not agree with the CLA that these should be appealable to the charity tribunal, Coleman said: "We are going to take great comfort from the minimum requirements that the committee recommended, which provide much greater clarity and certainty."

Sir Stephen Bubb, chief executive of the charity leaders group Acevo, said: "The evidence does suggest that many of the commission’s existing powers were sufficient and indeed the commission has not made the best use of the powers already at its disposal. That is why we welcome the recommendation of safeguards to keep the commission to task."

But Jay Kennedy, director of policy and research at the training and support charity the Directory of Social Change, said he was concerned about the level of discretion the bill would allow.

"Several clauses in the draft bill would still give the Charity Commission very subjective powers to disqualify virtually anybody from charity trusteeship," he said. "The vast expansion of power is simply not warranted by the evidence of a problem, and could easily be abused." He said this and other provisions "could threaten fundamental civil liberties and the spirit of voluntarism".

Kennedy also expressed concern at the recommendation that the government re-examine a proposal, included in the original consultation on the powers but not in the draft bill, that would allow the commission to stop disqualified trustees from taking up other "positions of responsibility" within charities. He said this would be "a step too far and raises all kinds of problematic questions about human rights and employment law".

Gareth Morgan, professor of charity studies at Sheffield Hallam University, who told the bill committee that the draft bill failed to address the most pressing concerns of charity regulation, said he was pleased with the report. "They’ve done a very thorough job in the short time that was available; it’s really very detailed," he said.

Morgan said he was pleased that the consultation process had allowed issues outside the bill’s scope to be brought to the committee’s attention and considered in the report. Among these was his suggestion that the government consider removing existing exceptions and exemptions from charity registration in the next review of charity law, something he said "may not be that far off".

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