Charities (Protection and Social Investment) Bill

Written evidence submitted by an individual who wishes to remain anonymous (CHB 15)

Charities (Protection and Social Investment) Bill

Introduction

I have been a Trustee of three Charities since my early 20s: I am now in my mid 50s. I also have a criminal conviction from 1979 when, celebrating leaving school as a teenager, I dropped my trousers; pleaded guilty to indecent exposure and received a conditional discharge.

In everything that follows, I am clear that my behaviour on that day in 1979 was wrong and caused offence and distress to the victims, distress that has possibly never entirely faded. Not a day goes by when I do not in some way berate myself for that behaviour.

I have restricted my details to ensure confidentiality.

Context

It is ironic that, in the 35 years since my conviction, the passage of time has increased the burden of that conviction, as the ability to track criminal records has been used ever more extensively by successive UK Governments (and way beyond the intention of those who piloted the RoA through Parliament). I am clear that if the current disclosure regime existed in the 1980s I would not have got into University; got my part time jobs; got my first full time job; become involved in work with charities. Measured this way, today’s disclosure regime and the draft Bill do not feel to me like progress.

The frustration of all this is that, just with the proposals in the Charities Bill, the assumption is that a past criminal record predicts future behaviour. There is no evidence for this (not helped by the remarkable lack of official data). The approach seems to be largely driven by certain sections of the print media. The evidence that does exist supports the opposite argument. For example, there is a high incidence of offences committed by young people who go on in later years to lead otherwise blameless and useful lives. There is increasing evidence that criminal behaviour before the age of 21 (or thereabouts) is linked to massive changes that go on in the brain as a teenager passes through adolescence.

The point about rehabilitating those with criminal convictions is that it allows them to contribute to society and reduces re-offending which is good for society as a whole – and certainly less expensive that managing re-offending. A report in 2010 by NOMS noted that desistance from crime is supported by ex offenders having a place within social groups; working with and supporting communities and being allowed to contribute to society. Certainly, in my case, I hugely value the trust shown by those employing me and it drives a fierce determination not to let those people down.

I heard the Chief Inspector of Prisons in a radio interview over Christmas. The interviewer suggested to him that poor prison conditions should be accepted because that is what the criminal deserves. Nick Hardwick’s response was, in terms, that prison and the loss of liberty is the punishment not unsafe prison accommodation. Similarly, a conviction for a crime and the sentence is the punishment. The UK obsession with raking up the past indefinitely blurs the distinction between serious and less serious crimes. Exceptions to the Rehabilitation of Offenders Act were always supposed to be very limited. But today they are legion often added as a knee jerk reaction to unusual or unique crimes or, as in the Charities Bill, as a poorly thought through adjunct to a Bill with an entirely different purpose.

In continental Europe most countries take a more liberal and enlightened approach to spent convections such that "spent" means "spent". France and Switzerland are just two examples and yet the social fabric of these countries is not undermined by such an approach. We are beginning to see a recognition of this in the with the introduction of protected convictions. Yet there is still a long way to go, and the overriding question is whether the proposals in the Bill at Clause 10 and 11 add genuine protection or controls. I suggest that, for the reasons set out below, they do not and therefore should be dropped or significantly modified.

Waiver systems

An automatic bar that can be over-ridden by a waiver system sounds great in theory but is hopeless in practice. I will focus on just one aspect of this. The biggest impediment to such a system is the employer. Employing staff is a long and complex process. The process will include getting budget to recruit, writing role profiles, advertising, short listing, assessing candidates at interview, making a sensible offer, collecting references. There is also the risk that a candidate will decline the role or get a counter offer. Therefore, employers wish to reduce the risks and complexity in the employment process. Faced with a number of equally good, or even similar, candidates, only one of whom will need a waiver, the employer will chose the alternative candidate because it is simpler and reduces the risk in the employment process.

There is evidence of this from the financial services sector where certain senior roles need to be registered with the Financial Conduct Authority as an Approved Person. As the FCA has increased its scrutiny of Approved Persons and increasingly used the extended exemption it was granted to the Rehabilitation of Offenders Act in 2007, so the industry has reacted by requiring applicants for certain roles to already be an Approved Person in their current role. This, of course, effects those with our without a conviction. Ironically, this is reducing the opportunity for fresh talent to come in to the industry that desperately needs it.

An automatic ban is also a blunt instrument which is likely to lead to a legal challenge. Why create legislation with that flaw built in?

The proposals are unnecessary.

The Government’s own consultation has already come out against automatic disqualification for unspent convictions for sexual offences. Charities, such as the one I am a Trustee for, already have to use the Disclosure and Barring Service (DBS). Adding a further set of rules of the type in Clauses 10 and 11 adds further complexity without any obvious advantage or effective control. Indeed, it dilutes the responsibility of the charity by allowing it to rely on the Charities Commission. Instead, of the Charities Commission (CC) making decisions on waivers (with the risks to the CC that entails) the CC should focus on oversight of the charity’s governance arrangement for recruitment.

The proposals perpetuate the belief that someone who has been "CRB" cleared can be relied on and otherwise sensible controls can be diluted. I have been at Trustee meetings, and meetings in other firms, where it was seriously suggested that controls could be relaxed because everyone was "CRB" cleared. Many of the recent "scandals" in care homes involve those who were "CRB" cleared. As I say, the CC should focus on the governance charities need to manage recruitment to a proper standard for themselves.

There is no evidence that charities are currently struggling or failing because of the involvement of those with criminal convictions. Charities in the sector I am involved in are struggling because of funding cuts and the burden of regulation. The Bill is looking to fix a problem charities do not have.

The proposals are not co-ordinated with the Rehabilitation of Offenders Act

The Rehabilitation of Offenders (RoA) grows ever more complex. I am always amazed at how many sensible people and firms believe that an exempt conviction automatically means a person must not be employed. The effect of the Charities Bill will be that the RoA and the Sex Offenders Register will operate in conflict such that someone with a spent conviction but still on the Sex Offenders register will be automatically barred. This makes no sense from a policy point of view.

The numerous exemptions from the RoA allows tens of thousands of organisations to collect and hold sensitive personal data on people. There are 75,000 regulated financial services firms exempt from the RoA as well as Charities, Schools, Clubs and so on. The way these organisations collect and handle data about exempt convictions is often poor resulting in the sensitive information becoming widely known through-out the organisation. This problem will grow again this year when banks, exempt from the RoA, have to check virtually everyone in their organisation. The Government should be turning back this tide and not pushing it further by adding data on the Sex Offenders Register to the DBS data held by charities.

Charities whose purpose is to work with those who have convictions

The Bill does not take account of the numerous charities whose purpose is to rehabilitate those with criminal records. The inclusion of those on the Sex Offenders Register takes no account of charities that do not work with children or vulnerable adults. These points underline the fact that this is a complex area, which the Government’s own consultation did not intend to be included in this Bill, and which, on this aspect. needs greater thought and care to avoid unintended consequences.

Extension of offences and roles

The Bill proposes to extend the disqualification regime to senior managers. This will restrict career opportunities and the talent pool available to charities and narrow opportunities for ex-offenders.

The Bill also proposes to extend significantly the types of unspent convictions that will mean disqualification. As a minimum the conviction should be relevant to the charities purpose.

Again, the financial services industry has already gone down a similar path with poor results. The financial services industry has a list a roles that must be registered with the FCA as an Approved Persons e.g. directors. It also has a catch all requiring senior managers to be an Approved Person. The FCA (and its predecessors) said it would expect even the largest organisations to have only one or two senior managers as Approved Persons. In fact, to be on the safe side and avoid risk of censure, regulated firms treat swathes of managers as in scope and register them and the regulator makes no attempt to question this. This, of course, makes it less clear who is actually responsible for what. This is graphically illustrated post banking crisis when FCA has said publically it cannot hold individuals to account as there was no clarity as to whom, amongst all the Approved Persons, was responsible for key decisions. The solution for this is that, this year, banks and insurance firms will have to list the accountabilities of virtually everyone in their firms all of whom will be subject to "CRB" checks. This will clearly create a huge bureaucracy and intrude into the private lives of thousands of people, but it is hard to see what benefits such a system will bring in practice.

Similarly, the FCA (and its predecessors) used to have an exemption from the RoA for financial crimes – which made perfect sense. From 2007 this was extended to all crimes. So I now face the very odd situation where, had a stolen something in 1979, my conviction would be protected from disclosure but because my offence is deemed a sexual offence I must disclose it even though, 30 years on, it hardly seems relevant to a firm specialising in re-insurance.

These points illustrate why Clauses 10 and 11 need much more thought. The blunt instrument that those Clauses form fail to achieve any policy objective; needlessly blights lives; and is bound to lead to years of challenge (perhaps legal challenge) and adjustment. All these things are unnecessary if thought is applied at the formative stage.

Conclusion

The stated purpose of the Bill is to -

· provide stronger protection for charities in England and Wales from individuals who are unfit to be charity trustees;

· equip the Charity Commission with new or strengthened powers to tackle abuse of charity more effectively and efficiently;

· give charities a new power to make social investments; and

· require the inclusion of certain additional matters in commercial fundraising agreements.

Clauses 10 and 11 are not relevant to these purposes and my suggestion would be to leave the issues out of the new Act and look at the topic separately involving other relevant stakeholders. At this late stage I suspect that means too much loss of face. However, it would be marvellous if someone could take the lead in beginning to reign in this UK obsession with checking past convictions on flawed and unproven the basis that they predict future conduct.

The very least that should be done is –

· Aligning the provisions of the Bill with the RoA

· Paring the disqualification framework back to the absolute minimum required for the CC to discharge its role, leaving the DBS regime to deal with everything else

· Excluding those charities whose purpose to rehabilitate or work with ex-offenders

January 2016

 

Prepared 4th January 2016