Stephen Cook: Ratcheting up the powers of the Charity Commission

The two new measures the government proposes to include in legislation will need a range of safeguards, says Stephen Cook

Stephen Cook
Stephen Cook

The Charity Commission was able to put a tick this week against two more items on its wishlist of new powers – a further power to restrict or prevent actions by a charity, and another to prevent people disqualified as charity trustees from working in other positions of power in a charity. These powers were not included in the draft Protection of Charities Bill, but the government has decided to proceed with them in the light of the recent recommendations by the joint parliamentary committee that scrutinised the draft.

The first of the two extra powers being proposed would allow the commission, once it had opened a statutory inquiry into a charity, to restrict or prevent actions, including financial transactions, that the commission considered would amount to misconduct or mismanagement by the trustees. In public consultation before the bill was drafted, and in the committee’s scrutiny of the draft itself, examples given of such actions included preventing premises being used for unlawful purposes and directing that a person does not speak at a charity event. This could, in effect, be called the radical speakers clause, and clearly forms part of the commission’s agenda of protecting charities from abuse.

In the consultation carried out before the bill was drafted, 44 per cent of respondents were against including this power and 42 per cent in favour. Those against argued that the power gave the commission too much discretion to get involved in the running of charities and could impinge on freedom of speech and human rights. The government left the proposal out of the draft bill, but said it might revisit it. The scrutiny committee suggested it should do so, and now it says it will – with the important proviso that the power would need to be tightly drawn and accompanied by appropriate safeguards.

The second power that will now be taken forward is the so-called "positions of power" clause. In the pre-draft consultation, 73 per cent agreed and 27 per cent disagreed that the commission should be able to prevent a disqualified trustee from working in another position of power in a charity. Those who disagreed cited problems of definition, human rights and employment law; the government recognised the concerns, omitted the proposal from the draft but said it might reconsider it. The scrutiny committee said it understood the potential value of the power, but that it would need additional safeguards. Now the government has decided to proceed with the proposal, asserting that it will work closely with the commission to ensure any proposals are "employment law and human rights-compliant."

All this is part and parcel of the general ratcheting up of the commission’s powers as it presses on with its agenda, backed by ministers, of becoming more effective and robust. But there is still a long way to go before these new powers, and the wide range of other powers already in the bill, are enacted and come into force. Nothing more can be done before the election, and the new government afterwards will have to take a view on whether it wants to proceed with the current proposals and how much priority to give it in parliamentary time. And no doubt all the reservations about some of the new powers that have been put forward in the consultative and scrutiny stages will be properly re-examined when a bill eventually comes before parliament.

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