The Charity Commission recently announced two consultations, the
first on its new powers to disqualify individuals from acting as
trustees or being in senior management positions at charities and
the second on its new power to issue official warnings to
The new power to disqualify individuals from acting as trustees
is contained in the Charities (Protection and Social Investment)
Act 2016 and the Commission's draft guidance sets that the
Commission will only be able to make a disqualification order when
it is satisfied that each of the following tests is met:
The person is unfit to be a
The order is desirable in the public
interests to protect public trust and confidence in charities;
At least one of the six conditions
specified in the legislation applies
The six tests which are contained within the legislation include
situations in which a person has been cautioned for an offence
against a charity in a situation in which a conviction would have
brought automatic disqualification, or if a person has been
convicted of an offence in another country which would have brought
automatic disqualification if committed in England and Wales.
There are other tests which are more subjective, for example;
'other conduct, whether or not in relation to a charity
that is, or is likely to be, damaging to public trust and
confidence in a charity or charities'. While the guidance
does give some examples of what might constitute such conduct, it
is clear that the Commission has wide powers in this area,
including deciding whether the disqualification will be for the
maximum of 15 years, or a shorter period.
The Commission is also consulting on its new power to issue
official warnings to charities. The Commission can issue an
official warning where it considers there has been a breach of duty
or other misconduct or mismanagement but where the issue is not so
serious that it merits the opening of a statutory inquiry or other
Charities which are to be issued official warnings will be given
14 days' notice of the warning being published and the chance
to make representations to the Commission, which the Commission
must consider before taking a final decision on whether to issue
Warnings which are issued will be noted on the register of
charities and cannot be appealed to the Charity Tribunal.
It is clear from both pieces of draft guidance that there are a
number of issues where clarity is needed from the Commission
regarding its new powers. Withers' charities team has two
representatives on the current Charity Law Association Working
Party which is responding to both consultations on behalf of the
CLA and those concerns will be raised with the Commission.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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