In the last few days before parliamentary recesses, the government invariably rushes to clear the decks of outstanding business, sometimes including controversial announcements that receive less attention than they normally would.
The Christmas 2017 version of this process included the news that Kenneth Dibble, the legal director of the Charity Commission, would be retiring in March after long and distinguished service. Simultaneously, the government announced that he would then become the second of two legally qualified members that must by law sit on the commission’s board.
This seamless transition has elicited reactions ranging from shock to relative indifference. Some in the sector feel that it is an example of unprincipled governance that will undermine the commission’s credibility when it urges good practice on the sector in general. "An appalling decision," was one private comment.
Others have pointed out that it is not unusual for people in executive positions in any sector to become members of governing bodies, thus providing valuable continuity and corporate memory. The move could be beneficial, they argue, providing the distinctions and boundaries between executive and strategic functions are observed.
These boundaries are not as clear in the commission as in most bodies. Charity law allows the board to intervene in operational matters, which prompted the National Audit Office to comment in 2013 that this made it hard for the board to remain independent and exercise proper strategic oversight.
The commission subsequently published a summary of a governance review that said this issue should be managed by always making it clear whether the board is exercising a function itself or overseeing the conduct of a delegated function. But its revised governance framework also said high-risk matters should always be escalated to the board, including test cases, complex litigation and matters of significant controversy or political sensitivity.
This would seem to open the way for Dibble to remain involved in decisions on important legal matters. At one level this might make sense: he joined the commission nearly 40 years ago, has occupied the top legal role for 14 years and has become by common consent the eminence grise of the organisation. He is said to carry most of its corporate legal memory in his head and successive senior management teams are thought to have relied on him increasingly.
On the other hand, it might make it more difficult to introduce new thinking, a fresh perspective and a different approach. The commission has a creditable track record in its legal decisions and interventions, but has also suffered some reverses. For example, when the government – quite unfairly – charged it with drawing up guidance on public benefit, the formula it came up with was partially overturned by the upper tribunal and had to be revised. In 2014, the charity tribunal said the commission was wrong to refuse to register as a charity the Human Dignity Trust, which supports the decriminalisation of homosexuality around the world. These are not the only examples.
Other potential difficulties include the recruitment of Dibble’s successor as legal director. Given the sums that lawyers can earn in private practice, it was never going to be easy to attract a real heavyweight in charity law to a post that carries a salary of about £120,000. Potential applicants might now also think twice about whether their predecessor will, in a sense, be looking over their shoulder. Other members of the senior management team, including the chief executive, might feel constrained in any attempt to take the commission in fresh directions – "boxed in", as one critic of the appointment put it.
In the end, the effects of this appointment are likely to depend to a great extent on who is appointed as successor to William Shawcross once he steps down as chair of the commission at the end of the month. A strong and confident chair with knowledge of the processes and principles of good governance should be able to profit from its advantages and mitigate any downside. An announcement is thought to be imminent.
Stephen Cook is associate editor of Third Sector