When it published the final version of its general guidance in January, some specialist lawyers warned that the section on fee-charging charities needed tidying up, and now its more detailed draft guidance for that sub-sector has brought some of the independent charitable schools out on the warpath.
Their main complaint is that the draft guidance does not conform to the case law on the question of how fee-charging charities deal with those who cannot afford their fees. They say the established principle that the poor should not be entirely excluded has been developed by the commission and made far too broad - so broad, in fact, that they feel they are being told they must provide something for everyone. Their complaints are made openly by the Independent Schools Council (Third Sector Online, 12 March) and The Daily Telegraph, while independent charitable hospitals choose to express similar misgivings more privately. There is uncertainty in other sub-sectors too: some religious groups remain shocked that they should be asked to justify activities they see to be self-evidently to the public benefit, and suspect that the commission is attacking them on behalf of secular society in general.
The way forward, surely, is for everyone to keep their nerve and get on with it. The commission has a good record in considering and acting on responses to its consultations, and some changes to the draft sub-sector guidance will no doubt be made, as they were to the general guidance. The sooner the process is completed and the business of putting the principles into effect gets under way, the sooner the fears and suspicions can be put to the test. The proof of the pudding will be in the eating. At the moment, everyone is living with uncertainty, which is never comfortable.
The only option that is not available is to start again: the rights and wrongs of the procedure now in hand were thrashed out in Parliament and were enshrined in the 2006 Charities Act. Many believe the chosen route to be wrong in law and in principle, and their contentions may well end up in court, which might be no bad thing. Parliament passed the hot potato of public benefit to the commission, and a view from the judiciary might settle some of the continuing qualms about that essentially unsatisfactory state of affairs.
In the meantime, it's worth remembering the political agenda behind all this. On fee-paying charities, the suggestion is out there that the commission is waging class war on behalf of the Government. Nothing could be further from the truth. The Government has all along wanted to avoid class war by finessing the situation. It is trying to allow the fee-paying schools and hospitals to carry on pretty much as before, while asking them to make sure they do contribute to wider society - and are more explicit and transparent about it - in order to silence the 'Eton can't be a charity' brigade. The commission knows well enough what it has been asked to do, and slashing and burning and deregistering charitable schools right, left and centre is not on the agenda: if anything, the opposite is the case.