Keep it legal: Charity secretaries

There are two schools of thought when it comes to the role of secretaries.

The Argentine-Chilean writer Ariel Dorfman noted that it has been the fate of secretaries throughout the ages to hold "responsibility without power". It's unsurprising that Stalin took a somewhat different view when he declared: "The people who cast the votes decide nothing. The people who count the votes decide everything."

The truth lies somewhere between these two extremes. It is difficult to pinpoint exactly where, though, because the role varies considerably between charities. Generally, the role can be considered as akin to that of a chief administrative officer - someone who supports trustees in their decision making by recording their meetings (and those of the charity's members) and advising on compliance with the charity's governing document and relevant legislation. Primary functions include filing regulatory documents with the Charity Commission - and Companies House if the charity is constituted as a company limited by guarantee - and dealing with official correspondence in a timely and effective manner.

Before 1 October 2007, it was a statutory requirement for charitable companies limited by guarantee to appoint secretaries. This is no longer the case now that the Companies Act 2006 is partially in force. The main thrust of the sweeping review of company law that resulted in the new legislation was to reduce the amount of bureaucracy and administration required of smaller private companies. As red tape was cut, so were secretarial requirements. This change will be reflected in the articles of association of new companies, but trustees of existing charitable companies should note that they cannot do away with secretaries without constitutional amendments.

Appointing a secretary is, therefore, no longer an absolute requirement for charities. If it is not a stipulation of their charities' governing documents, trustees are free to decide whether or not they wish to be supported in this way. However, trustees should bear in mind that the legal and administrative obligations outlined above will fall on their shoulders if they do not have secretaries. Whether this is a shift of power or responsibility depends on your point of view.

- Tim Waldron is a solicitor at Coffin Mew LLP 

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