Draft Protection of Charities Bill - Joint Committee on the Draft Protection of Charities Bill Contents


5  Disqualification of trustees

Clauses providing for disqualification of trustees

163. Clauses 8 and 9 of the draft Bill consist of a number of provisions relating to the disqualification of trustees. They differ in that clause 8 deals with circumstances which result in an automatic disqualification, while clause 9 provides powers for the Charity Commission to disqualify a trustee subject to the satisfaction of certain conditions.

Offences leading to automatic disqualification (clause 8)

164. Clause 8 would amend section 178 of the 2011 Act (which provides for the disqualification of persons from being charity trustees or trustees of a charity) and add section 178A to the Act, further extending the list of offences which give rise to automatic disqualification. The offences to which sections 178 and 178A apply fall into a number of categories.

A) MONEY LAUNDERING, BRIBERY, MISCONDUCT IN A PUBLIC OFFICE, PERJURY AND PERVERTING THE COURSE OF JUSTICE (SECTION 178A(1)3-6)

165. These offences are specified in section 178A(1)3-6. We have considered whether they should be included in the list of offences that would lead to automatic disqualification from being a charity trustee.

166. In its evidence to the Committee the Charity Commission explained that the absence of money laundering from the list of automatically disqualifying offences (on the basis that it does not contain an element of 'deception or dishonesty' which would give grounds for disqualification) was the catalyst for this clause.[192] People convicted of money laundering offences are, because the offences do not amount to deception or dishonesty, free to take up a position in another charity. On inspection, the Commission identified a collection of offences of this nature along with others relating to contempt for the judicial process in terms of misconduct in public office, perjury[193] and similar offences.

167. Witnesses have generally been content with the inclusion of these offences in the Bill. The provisions have been described as "appropriate",[194] "making sense",[195] and "closing loopholes" in the law,[196] with the balance of the new offences "about right".[197] In some instances, general support has been qualified by provisos as to specific concerns relating, in particular, to terrorism offences, rehabilitation of ex-offenders or the delegated power to amend the list of disqualifying offences and these issues are examined below. They do not, however, impact on the general view of the approach taken to the offences listed above.

168. Two issues (aside from those considered below) were raised with the Committee. The CLA noted the proposed extension (made by clause 8(4)) in case D of section 178(1) of the 2011 Act to include any trustee, officer, agent or employee of a charity. A person who is not a charity trustee but is removed from their position under this provision would also be disqualified automatically from acting as charity trustee. This is an extension of the existing removal powers which apply only to a charity or to the trustee of a charity. The CLA questioned whether removal from posts other than these trustee posts should lead to automatic disqualification as a charity trustee or whether it should be grounds for a discretionary removal (under clause 9).[198]

169. The Delegated Powers and Regulatory Reform Committee noted that the automatic disqualification of a trustee under sections 178 and 178A was immediate and could result in prosecution for acting as a trustee whilst disqualified. It suggested that allowing a delay (of, for example, two months) to enable withdrawal and completion of any legal process may be appropriate.[199] The Minister in his oral evidence indicated that a delay would be provided for.[200] We trust that the draft Bill will be amended to reflect this.

170. The inclusion of these offences in clause 8 of the Bill is appropriate as they sensibly close loopholes in the law.

171. We recommend however that consideration should be given to: (a) the concern raised by the CLA as to whether removal from a post as officer, agent or employee of a charity should lead to automatic disqualification as a charity trustee or would be more appropriately addressed through the discretionary disqualification provisions in clause 9; and (b) the DPRRC's concern as to the immediate effect of an automatic disqualification which could lead to the trustee concerned being prosecuted under section 183 of the 2011 Act for acting as a charity trustee whilst disqualified (which carries a maximum penalty of two years imprisonment) and could also leave a charity with administrative difficulties, including the need to find an immediate replacement trustee. The Committee considers that it should be possible to address these issues whilst not damaging the principal intended effect of these provisions (i.e. the closure of the loopholes which have been identified).

B) TERRORISM OFFENCES (SECTION 178A(1)1-2)

172. Clause 8 would amend section 178 of the Charities Act 2011, and insert a proposed section 178A into the Act to extend the criteria that automatically disqualify a person from being a charity trustee. The new section 178 would automatically disqualify a trustee who was subject to a designation under terrorist asset-freezing legislation (Case J).[201] The disqualification would last until the designation was removed. The amendments to section 178A proposed in the draft Bill would provide for the automatic disqualification of a trustee convicted of "An offence to which Part 4 of the Counter-Terrorism Act 2008 applies" and "an offence under section 13 or 19 of the Terrorism Act 2000 (wearing of uniform etc and failure to disclose information)".

173. This section explores the appropriateness of including offences under terrorism law in the list of specified offences in clause 8 of the draft Bill.

174. There was generally support for the principle of preventing people convicted of terrorist acts from serving as charity trustees.[202] DCS Nicholson pointed out that, in this respect, the disqualification powers in the draft Bill would be "tremendously" helpful tools in enabling the Charity Commission to play a part in preventing and pursuing terrorist activities. She said that, "It seems utterly illogical that someone with those sorts of convictions could be a trustee looking after public money".[203] The Henry Jackson Society, a think-tank which specialises in the study of terrorism, said that there was, "significant evidence" of charities being misused to fund terrorist organisations. It listed a number of terrorist organisations that it claimed had used charities to fund their activities.[204] The Minister for Civil Society said that, "it would be very foolish to ignore the role that some charities could play in fund-raising for terrorist activities".[205]

175. A smaller number of respondents had reservations over the likely effectiveness of the provisions in clause 8 in tackling abuse of charities by terrorist groups. Richard Corden said that he did not think the draft Bill would enable the Charity Commission to do anything in the area of counter-terrorism that it could not already do. He said that, since the Charity Commission was a civil regulator, it should only be expected to act as an "information gateway" to authorities such as the police, and exercise powers to prevent misuse of charity property for terrorist purposes.[206] The Joseph Rowntree Charitable Trust also questioned whether these powers would "address a current problem", pointing out the lack of clarity around the scale of misuse of charitable assets in connection with terrorism.[207]

176. Notwithstanding that the scale of the problem has not been quantified, on balance we consider that the inclusion of a conviction for terrorism offences to the list of specified offences in clause 8 is likely to be a useful tool in preventing the abuse of charitable funds in connection with terrorism. There is no good reason that an individual with such convictions should be allowed to be a trustee. We therefore support the inclusion of convictions for terrorism offences in clause 8 of the Bill.

177. There are however wider difficulties presented to charities by the effect of terrorism law which came across strongly in evidence and are considered below, although the operational points are not within the scope of the draft Bill, the concerns are relevant to clause 9.

Charities working alongside proscribed organisations

178. As mentioned in Chapter 2, a number of witnesses expressed concerns over the difficulties presented by terrorism legislation to NGOs' operational requirements in challenging circumstances overseas. Respondents raised concerns with the breadth of the definitions within terrorism legislation and were concerned that the inclusion of terrorism offences in the Bill could impact on charities operating in dangerous parts of the world for humanitarian purposes.[208] While these issues were outside the scope of the draft Bill, we considered it important that they are reflected on.

179. The Government's Independent Reviewer of Terrorism, David Anderson QC, told us that the use or suspected use of property for the purposes of terrorism was "monstrously"[209] broadly defined in legislation, and included concepts such as the provision of "indirect support" to terrorist organisations which had "an impact on humanitarian charities, particularly when working abroad and when working in areas that are under the de facto control of a proscribed or designated group."[210] The problem was articulated powerfully by Dr Hany El-Banna, Chairman of the Muslim Charities Forum (MCF), who said

    "I go to difficult areas like Afghanistan, South Sudan and Chechnya. Recently, two weeks ago, I was in Iraq, in Baghdad. I have been in Somalia, in Mogadishu and other countries. I think counter-terrorism legislation is preventing us from having access to the neediest people. There are proscribed groups in those areas, and we know them. They are the gatekeepers. How can we go through the gatekeepers to reach the neediest people in Syria, Somalia or different parts of the world?"[211]

180. Mr Anderson told us that charities operating in these areas ran the risk of falling foul of terrorism law by, for example, delivering relief to a general population which might include individuals or groups designated as terrorists. He suggested that an increased risk could deter charities and their trustees from delivering humanitarian support.

181. A further vulnerability for charities operating abroad emanated from the fact that they were subject to law enforcement in other jurisdictions. As DCS Nicholson explained: "If you take the overseas dimension to the conversation, yes, we have representatives overseas but it is not an area that we are policing. They are policed by whichever jurisdiction they are operating in, and sometimes that is outwith our control in the UK."[212]

182. Mr Anderson pointed the Committee towards examples in other countries where this issue was addressed. In the cases of Australia and New Zealand, specific exceptions existed in terrorism law to meet this point, including that of association with proscribed organisations for the purpose of providing humanitarian aid.[213]Box 2: Australia and New Zealand
·  The Australian Criminal Code Act prohibits associating with a terrorist organisation, 'but specifies that this does not apply in a number of situations, including where "the association is only for the purpose of providing aid of a humanitarian nature"'.[214]

·  In New Zealand, the Terrorism Suppression Act 2002 includes an exception for humanitarian assistance. The offence is only committed when property is made available "without reasonable excuse".[215] According to subsection 10(3):

    "an example of making property available with a reasonable excuse, for the purposes of subsection (1), is where the property (for example, items of food, clothing, or medicine) is made available in an act that does no more than satisfy essential human needs of (or of a dependant of) an individual designated under this Act".

183. We asked the Minister for Civil Society for the Government's view of these concerns. He said, "in terms of what we are proposing in this legislation, I do not think that it is going to be a problem."[216] While he understood the reasons behind concerns in this area, he said that he had not considered the possibility of bringing in provisions such as those in Australia and New Zealand because it fell outside his remit and was, "essentially a question for the Home Office". The Minister said that, in any case, pursuing the issue could be "chasing a problem that does not exist, [since] no one has been prosecuted".[217] The Chairman raised this issue with the Home Office during exchanges at Committee and Report stage of the Counter-Terrorism and Security Bill, asking Lord Ashton of Hyde, spokesman for the Home Office, to confirm "that, if a humanitarian organisation paid money to a gate-keeper that happened to be a proscribed organisation, that would be taken as assisting that organisation." Lord Ashton confirmed that the "Government's position is that we do not want people to pay money to terrorists for any reason".[218]

De-Risking and De-banking

184. A further issue, raised by Dr El-Banna and Mr Anderson, and in a recent report published by the think-tank Demos,[219] was the difficulty of financing operations where banks took a risk averse approach to providing services to charities whose activities were deemed by the banks likely to cause an interaction with terrorism and asset-freezing provisions.[220] In its written evidence, Bond also suggested that the withdrawal of banking services exposed donor assets to greater risk because international NGOs had no option other than to use less secure money service bureaux or to carry sums of cash across borders.[221] The Charity Commission and the National Crime Agency acknowledged this problem and the Commission told us that it was working with umbrella bodies to reassure the banking industry.[222]

185. These issues are not and cannot be part of the draft Bill but they do need to be addressed. The difficulties posed by current terrorism legislation to the protection of charities working overseas to deliver humanitarian aid in difficult circumstances were put to the Committee compellingly by a number of witnesses. Although we accept that these difficulties have not led to prosecutions, they appear to present a real risk of a 'chilling effect' on UK NGOs' activities overseas at a time when their efforts are possibly more critical than ever before.

186. We call on the Government to consider the position of these NGOs in the context of terrorism law. It could consider adopting statutory provisions similar to those already in place in Australia and New Zealand. We recognise that it may take time to get agreement on this approach. Accordingly, while this may mean that the Protection of Charities Bill cannot be a vehicle for such provisions, it is important that the Government commits to an early resolution of this problem. Without such a resolution the Protection of Charities Bill could achieve a 'chilling effect' without providing any 'safe harbour' by which these important aid flows can continue.

The role of advice and guidance

187. William Shawcross outlined the Commission's approach to communicating with charities operating in such areas through the issuing of alerts: "We issued an alert earlier this year about the risk to aid convoys to Syria, and how charities should protect themselves."[223] Despite this, Michelle Russell said that the legal position was not always fully understood by charities and that there were:

    "probably some mechanisms under existing legislation—not charities legislation, but parts of other legislation—that charities perhaps do not take enough advantage of. For example, charities are under an obligation to report their concerns under section 19 of the Terrorism Act. We have identified that, but we do not think that charities are sufficiently aware of it to make sure that they have some protection. The other way is under the SAR regime—the suspicious activity report regime—where they can apply for consent for a particular transaction. That is probably underused by charities, if they are looking for protection when giving a financial transaction to a particular group or area. It does not solve all of it, but there are some mechanisms that are probably underused."[224]

188. The Charity Commission told us that as well as issuing alerts they were "getting out and talking to some of the charities that are operating" in these difficult conditions,[225] had been meeting with DEC, BBA, NCVO, Charity Finance Group, Bond and MCF about these issues. Notwithstanding the Commission's assurances on this point, we heard evidence of concerns with the quality of the Commission's current guidance, including from some of the bodies singled out by the Commission (NCVO, Bond and MCF).

189. DCS Nicholson argued that the Charity Commission was best placed to dispense advice on complying with terrorism law because it covered all charities and, in cooperation with umbrella bodies, best understood the sector.[226] She acknowledged that in order for the Commission to be effective in this regard it would be dependent on information from the network. We acknowledged the importance of other public bodies sharing sufficient information with the Commission in Chapter 2, paragraph 80.

190. In seeking a proportionate solution to this difficulty, given the concerns expressed with the Charity Commission's guidance, we considered whether the Government might ask the Director of Public Prosecutions to publish guidance for charities on prosecutions under counter-terrorism legislation. Decisions on prosecutions have to be made in accordance with the Code for Crown Prosecutors, which requires consideration of whether there is sufficient evidence to prosecute and whether a prosecution would be in the public interest. If the CPS published guidance on how the public interest test would apply, which was supportive of NGOs seeking to meet humanitarian need, this may give the NGOs some reassurance and legal certainty.[227] We note that there is similar guidance on the Bribery Act[228] and on the law governing assisted suicide.[229]

191. Without minimising the value of the advice provided for charities by the Charity Commission in this area, greater legal certainty is required, particularly because of the likely delay before any further primary legislation.

192. We recommend that the Government ask the Director of Public Prosecutions to publish guidance for charities setting out the approach she would take to prosecutions under counter-terrorism legislation and on the application of the public interest test.

C) REHABILITATION OPPORTUNITIES FOR EX-OFFENDERS

193. Unlock and other witnesses raised a range of concerns about the effect of clause 8 on rehabilitation opportunities for ex-offenders to get involved in the charity sector. The operation of the Charity Commission's waiver scheme in section 181 of the 2011 Act, although strictly outside the scope of this Bill, was also criticised.

194. The points raised by witnesses related to the impact additional offences listed in clause 8 could have on the opportunities for rehabilitation of ex-offenders. Witnesses suggested that there might be a greater impact on small charities and those in the criminal justice sector which wanted to recruit former service-users or ex-offenders to their boards.[230] Unlock raised the issue of convictions which never become spent.[231] These are convictions resulting in prison sentences of over four years and all public protection sentences.[232] The Directory of Social Change referred to the "unforeseen impact of some of the proposed legislative changes",[233] mentioning specifically in this regard the "offences and criteria leading to automatic disqualification from trusteeship and the Commission's powers to disqualify".[234] It went on to refer to the need to recognise that "people with criminal records can and do make valuable and innovative contributions to charity and society" and that the overall approach of listing disqualifying offences risks closing off the "valuable and innovative contribution that people who have done wrong in the past can make as charity trustees".[235] The listing of "broadly drawn or loosely defined" offences increased the risk of "getting this wrong".[236]

195. Christopher Stacey from Unlock told the Committee that he "would like the existing list [of offences giving rise to automatic disqualification] looked at and a more sophisticated way of establishing what is pertinent to the role of a trustee".[237] He also suggested that charities should have discretion and apply common sense and their own principles when dealing with people with convictions,[238] shifting away from disqualifications and waivers to a system which supported charities through a process of seeking the Commission's approval[239] of an individual as a trustee. He noted that there was "a role for allowing better self-regulation among charities, particularly those within the criminal justice system and working with offenders".[240]

196. Unlock was "encouraged by the [Commission's] willingness to work proactively with stakeholders … to try and ensure there is clear guidance" for potential trustees.[241] Mr Stacey expressed concern, however, at the state of the present guidance and information included on the gov.uk website which he described as "misleading" in its suggestion that certain people are not entitled to seek a waiver under section 181. He said that as a result, the waiver process was seldom used and considered to be off-putting and intrusive.[242]

197. The CLA, which was generally supportive of the extension of automatic disqualification, raised a number of issues in its evidence (some of which relate to the clause 9 order making power and are addressed below). It noted the need for "publicity and education" in the case of the new offences, which it said should also provide "an opportunity for greater publicity regarding the need for charity trustees who fall within the disqualification provisions to self-declare".[243] Its evidence also supported the calls for the Commission's guidance and approach on waivers to be revised and given more publicity.

198. In response to these concerns William Shawcross said that extending the list of offences giving rise to automatic disqualification,

    "would create a small obstacle to rehabilitation in some cases, but only to a limited extent. Being a trustee is not the only way in which an individual can help a charity and work for a charity. It would not be absolute, as in many of the other instances we are discussing; individuals or charities could always seek waivers from us, and we would look at them sympathetically. It seems to me that it is a sensible safeguard for charities to have".[244]

199. In response to what she described as "fair criticism" about the waiver process, Michelle Russell from the Commission conceded that "there is something about people not being as aware as they should of the ability to get a waiver". She undertook to make the Commission's guidance "more accessible and more understandable in terms of process to make it simpler for people who want to apply [for a waiver]" and reported that the Commission had already increased its dedicated staff resource "to make sure that there is a consistent and fair approach between people who might apply".[245] Ms Russell stressed that the inherent sensitivity of many waiver requests meant that the Commission had to place great emphasis on handling requests and any relevant communications in an appropriate way, with appropriate Data Protection Act safeguards.[246]

200. We note the important concerns raised about the limiting the opportunities for the rehabilitation of offenders. We are glad to hear that the Charity Commission is looking to address the issues identified with the waiver process.

201. We recommend that the Charity Commission do more to promote understanding of the availability of waivers and simplify wherever possible the application and decision-making process.

202. The issue was raised more generally in Chapter 2 in the context of advice and guidance. Our evidence over the waiver scheme should also be taken into account by the Cabinet Office and Commission when they consider whether the presentation of materials on gov.uk can be improved.

D) DELEGATED POWERS ISSUES (SECTION 178A(4))

203. Clause 8 would add section 178A(4) to the 2011 Act. This provision would enable the Minister to add or remove offences from the list in section 178A by affirmative procedure regulations. Various witnesses objected to the proposal that the Minister may amend the list of disqualifying offences by statutory instrument, arguing about the risk of "mission creep" and the ability of Parliamentary procedures to provide adequate safeguards when amending the list of offences leading to automatic disqualification.[247]

204. We received evidence which advocated constraining any discretion for the Minister[248] and suggested that the Minister should not have a power to change the list of offences because charities required certainty in the regulatory environment. It was suggested that changes should only take place following a full Parliamentary process and consultation with the sector.[249] The DSC suggested that the power opened the door to further regulatory creep with the result that other offences, such as those in Part I of the Public Order Act 1986 which were mooted in the original consultation to the draft Bill, could find their way into the criteria for disqualification in the future without sufficient debate.[250] This view shared by the Christian Institute which also questioned the adequacy of Parliamentary scrutiny of proposals for secondary legislation and suggested that it would be inappropriate to make such potentially significant changes using regulations at all. Instead, it should be a matter for primary legislation. This would provide far greater opportunity for the proposals to be properly examined and debated, including the potential for amendments to be made.[251]

205. The CLA was concerned about the need for a clear rationale as to why a person is automatically unsuitable to be a charity trustee. It did not believe that Parliament should add to the list of offences on the "basis of some vague assertion that 'people would not expect' someone with such a conviction to be a charity trustee". Any addition to the list should be tested to assess why such a conviction, of itself, would make someone unsuitable to be a charity trustee.[252]

206. The Delegated Powers and Regulatory Reform Committee (DPRRC) was generally content with the order making power granted to the Minister, raising no issues as to the delegation or the level of scrutiny.[253] It also considered whether clause 8 could have a retrospective effect on a trustee. In its Delegated Powers Memorandum [see Appendix 3], the Cabinet Office suggested that this might be the case if an offence were to be added to the list in section 178A and a trustee had previously committed such an offence (which was not yet spent under the Rehabilitation of Offenders Act 1974). The DPRRC doubted that there could be any risk of retrospective effect in these circumstances. The disqualification would apply only prospectively and affect only future conduct from the commencement of section 178A or regulations made under subsection (4) (whichever led to the offence being specified). The DPRRC also noted that in its view Article 7 ECHR[254] was not contravened as the provision is parallel to that which applied in the case of R v Field[255] where the Court of Appeal held that disqualification was preventative rather than punitive and as such did not constitute a criminal penalty for the purposes of Article 7.

207. We are content that the order making power should be available to the Minister in the form and subject to the procedures which are proposed.

208. We recommend, however, that when using the power, the Minister should be required to consult fully on whether it is appropriate and proportionate to include an offence within the list of disqualifying offences.

Discretionary disqualifying power (clause 9)

209. Clause 9(2) of the draft Bill would insert a new section 181A into the 2011 Act. This would confer on the Commission a power to disqualify a person from being a charity trustee in relation to all charities, specified charities or classes of charity. The Commission may use this power only if it is satisfied that the person is unfit to be a charity trustee or trustee of a charity and at least one of the conditions in section 181A(4) is met (emphasis added). These conditions are:

a)  The person has been cautioned for a disqualifying offence (Condition A);

b)  The person has been convicted or cautioned for an offence overseas and the act constituting the offence would have amounted to a disqualifying offence if committed in the UK (Condition B);

c)  The person has been found by HMRC not to be a fit and proper person to be a manager of a body or trust (Condition C);

d)  The person was a trustee, charity trustee, officer, agent or employee of a charity at the time when there was misconduct or mismanagement in its administration for which the person was responsible or privy to or which their conduct contributed to or facilitated (Condition D).

e)  The person was an officer or employee of a body corporate at a time when the body was a trustee or charity trustee for a charity and there was misconduct or mismanagement in its administration for which the person was responsible or privy to or which their conduct contributed to or facilitated (Condition E).

f)  Any other past or continuing conduct by the person, whether or not in relation to a charity, is damaging or likely to be damaging to public trust and confidence in charities generally or more specifically (Condition F).

A) FITNESS TO BE A CHARITY TRUSTEE (SECTION 181A(3)(B))

210. Section 181A(3)(b) would provide that the Commission may make a disqualification order only if it was satisfied that the person was "unfit" to be a charity trustee. Concerns have been raised that this is insufficiently defined.

211. Whilst many witnesses supported the new power in principle, concerns were expressed about the need for an accessible and transparent waiver application process.[256] The Commission did not in its evidence specifically address any issues around the "unfitness" test, but referred to instances where it had not been able to disqualify an individual in the past but where the power in clause 9 would allow that course of action where it would be proportionate and appropriate.[257]

212. The Charity Law Association, whilst supporting the discretionary power, considered it essential that the criteria for "unfitness" be included in the Bill and went on to suggest that the "proper criteria for a test of unfitness … requires in-depth thought and analysis" (and should probably be a subject for consultation).[258] Further, it said that the "unfitness" test, in clause 9 is "completely undefined" as all it requires is for the Commission to be "satisfied that the person is unfit to be a charity trustee".[259] It had looked at other regimes which had similar wording but additional statutory criteria.[260]

213. The Charity Finance Group also argued that the criteria should be on the face of the Bill.[261] The Directory of Social Change argued that the requirement should be removed from the Bill altogether. The new section appeared to give the Commission wide and subjective powers to disqualify a trustee.[262] NCVO (which again in principle supported the new power) noted that the new draft legislation proposed a number of powers which could be authorised on subjective grounds by the Commission and allowed it an excessive amount of discretion, creating the possibility for abuse and misapplication of the powers. It therefore had significant reservations due to the lack of safeguards and clarity as to the exercise of the power.[263]

214. The Minister for Civil Society told us that the Commission would have to consider all relevant factors in deciding whether individuals were unfit to be trustees, and these might differ from one case to another. He did not want unduly to fetter the Charity Commission with inflexible criteria.[264] Ben Harrison, the Cabinet Office lead official on the Bill, referred to the test as two-limbed, with a trigger for the Commission to determine whether or not conduct was unfit. He agreed that there were precedents around what amounts to "unfit" but the Government needed to give some more thought to this, perhaps in terms of the production of a non-exhaustive list of criteria. The intention would be, however, to do it in a way that did not fetter the Commission in making decisions. The idea of the present drafting was that, over time, people would appeal decisions to the tribunal, and a sense would develop of the approach that it would take, with a body of cases giving a clearer indication of the matters that the Commission would take into account on the question of fitness. That said, the Commission would have to consider all relevant factors in deciding whether individuals were unfit to be trustees, and these might differ from one case to another.[265]

215. While the word "unfit" is given some context by the rest of the clause as a whole, we recommend that the Cabinet Office considers the criticisms made by witnesses of the present lack of a definition of "unfit". It should follow up the comments made in its own evidence and produces a non-exhaustive list of matters which demonstrate when a person is "unfit" to act as a charity trustee or trustee of a charity.

B) FIT AND PROPER PERSON TEST (SECTION 181A(4)C)

216. Condition C of section 181A(4) is one of the conditions which may give rise to a disqualification order being made by the Commission. It requires that the individual has been found by HMRC not to be a "fit and proper person" to be a manager of a body or trust for the purposes of paragraph 4 of Schedule 6 to the Finance Act 2010 (which deals with taxation issues and charity). Questions were raised in evidence about the validity of this particular test and its use as a condition in these circumstances.

217. HMRC told the Committee that the "fit and proper person" test was introduced in 2010 to help it address fraudulent activity in respect of Gift Aid and it had since then been dealing with more fraud.[266] The Minister for Civil Society told the Committee that the test is a good one which possibly the Commission could use. The Cabinet Office explained that the Commission would not be exercising or conducting the test itself. It "would be relying on the decision made by HMRC that a person was not fit and proper as a trigger to consider whether that person was fit to be a trustee of a charity".[267]

218. The Charity Finance Group made a number of points about the "fit and proper person" condition. It said that it was "deeply concerned" about the Commission's ability to use the test to disqualify an individual from being a charity trustee or trustee of a charity. It had, with NCVO, made representations to HMRC about the test which has not been subject to sufficient consultation with charities and as currently drafted was both "broad and unclear". The Commission had other powers sufficient to prevent unfit individuals from becoming charitable trustees and "given the flaws with the test as currently structured it was not appropriate to include it within the Bill. There should be further consultation with the sector and experts in charity tax law to ensure that the test met its purpose". The present lack of certainty in relation to various aspects of the test (e.g. HMRC has not made clear what activities are covered by designing or promoting tax avoidance schemes) could lead to recruitment and retention difficulties for charities. Given these concerns CFG did not believe that it was appropriate to include the "fit and proper persons test" within this Bill. Further consultation with the sector and experts in charity tax law would be required in order to ensure that the test met its purpose.[268]

219. The Directory of Social Change also opposed inclusion of the "fit and proper person" test on similar grounds to CFG, saying that it would "validate a problematic and controversial administrative procedure" introduced by HMRC. They also noted that it resulted "in a rather circular legal situation (as one part of the HMRC form involves stating that you have not been disqualified as a charity trustee)".[269] Professor Gareth Morgan suggested that the inclusion of the test raised issues as to the interaction between charity and tax law whilst there should be a more joined up approach, providing, in particular, for a simple appeal process to one Tribunal.[270]

220. The CLA said that it understood the logic of including the "fit and proper person" test but had some concerns. These sprang in part from the tax legislation itself which does not include a definition of "fit and proper", this being left to guidance. The CLA also had concerns about the accessibility of the tax appeals process. It thought, however, that these concerns as to the underlying tax legislation could be overcome if the remainder of the clause 9 power (the unfitness limb of the test and the process) was clear and fair. There were, however, further practical difficulties in relation to the requirement that the HMRC finding had not been overturned. Again, satisfactory safeguards, if built into the legislation, elsewhere in clause 9 could overcome these issues.[271]

221. We have noted the Government's and the Commission's desire to include a power to disqualify a person where there has been a finding by HMRC that the person is not "fit and proper" in relation to a charity. We have also noted the suggestion that there should be a more joined up approach between tax and charity law. We are concerned, however, that there are significant misgivings over the move to apply tax law, expressed by a number of witnesses in the context of the HMRC test. At present we would not support its inclusion in the Bill.

222. We therefore recommend that, before finalising any provision on a "fit and proper person" test, there should be further discussions between the Charity Commission, HMRC and the Cabinet Office, with a view to addressing the concerns raised.

C) CAUTIONS (SECTION 181A(4)A)

223. The draft Bill gives the Commission the power to disqualify a trustee for being cautioned, not convicted, of a disqualifying offence (Condition A). There are many circumstances which may lead to a person accepting a caution and this issue attracted comments from a number of witnesses.

224. Both the Commission and the Minister supported the inclusion of cautions as a ground for disqualification as a trustee. They accepted that there are various reasons why a person may accept a caution but suggested that any question of disqualification would be considered on a case by case basis. The Commission would also have to demonstrate that the person's conduct made them unfit to be a charity trustee. In short there are safeguards to stop the Commission using this power "capriciously or unfairly". The Minister also stressed that "public trust in charities is so important, and that trust could be damaged if the Charity Commission were not shown to have taken action".[272]

225. The CLA was concerned that taking action in the case of a person who has not been convicted of an offence poses risks for the Commission and also pointed to the many different circumstances in which a person may accept a caution. It questioned whether the second stage of the test (as to the "fitness" of a person) could help in these circumstances.[273] In its written evidence[274] it referred to a person possibly feeling pressured to accept a caution where they would have been acquitted if the case against them had gone to trial. It also raised procedural difficulties which would impact upon fairness—for example, would the police officer administering the caution in all cases warn the person of this new consequence of accepting the caution? It was also concerned about the terms of proposed section 181A(7) which seeks to apply Condition A retrospectively. This would impact on people who have accepted a caution but could have had no way of knowing about this impact. Potential timing issues were also raised which could, in the CLA's view, apply the proposal to anyone who has ever accepted a caution for a disqualifying offence.

226. Christopher Stacey from Unlock told us that "Under the Rehabilitation of Offenders Act, a simple caution given by the police becomes spent immediately and those who accept a police caution are told that. I cannot envisage a police officer telling them about the ramifications of becoming a trustee, but there would be an important context for individuals that applies to."[275]

227. Professor Morris said that she did not want to see the power to disqualify on the basis of a caution exercised too easily by the Commission. She also referred to the fact that there are various reasons why somebody might accept a caution, particularly now with significant cuts in legal aid when somebody might simply not have the resources to fight a case. She indicated that she would not like to see that being used as a reason to disqualify somebody from being a trustee.[276]

228. Given the degree of confusion and the various scenarios presented to us, we considered in depth the nature of cautions, including when they are spent, and how, given this, the provision would work in practice. We feel it may be helpful for us to set out here our understanding of the effect of the provision. Firstly, we noted the distinction between the present proposals in clause 9 which do not provide for automatic disqualification and the existing disclosure and barring regime (as provided for in the Safeguarding Vulnerable Groups Act 2006 which was amended by the Protection of Freedoms Act 2012). In the case of this regime, a person may be automatically barred from working in certain regulated activities (in some instances without any right to make representations) as a result of a criminal records check which may be made where a person is seeking to work or volunteer in certain positions. This check will produce a full break down of criminal convictions and cautions including those which are spent unless they are protected cautions or convictions which are filtered from the results of the check. The provisions in clause 9 do not provide for automatic disqualification of this type. Rather, in Condition A, a caution for a disqualifying offence amounts to an indication that a person may be unfit to be a trustee but further consideration of their position would be required before the Commission took a decision to disqualify. This decision would be subject to representation and appeal before taking effect.

229. The discretionary nature of clause 9's provisions and the position of a caution as a trigger for a consideration of a person's fitness to be a trustee is also relevant when considering concerns as to retrospection. The policy underlying retrospection (which would be permitted under new section 181A(7)) would appear to be the same as for automatic disqualification under clause 8 (which is addressed in paragraph 206 above).[277] In essence where there has been a caution for a disqualifying offence which, by its nature and seriousness, is likely to make a person unfit to be a trustee, it should be possible for the Commission to disqualify them provided that the unfitness limb of the disqualification test in clause 9 is satisfied. This would impact on a person who accepted a caution in the past, without knowing its future potential impact. The impact of this is mitigated as the caution is a trigger for consideration of disqualification—the unfitness test also needs to be satisfied. Additionally, a disqualified person may apply to the Commission for an order to be discharged or varied. Overall, it is necessary to weigh in the balance the fairness to others who could suffer loss as a result of the actions of a previously cautioned trustee.

230. Witnesses displayed some conflicting views about spent cautions and how Condition A would impact on them. We understand that, under the Rehabilitation of Offenders Act 1974 (and orders made under it), unconditional cautions are spent immediately and conditional cautions are spent in up to three months. This suggests that if a person, whilst they are a trustee, accepts a caution for a disqualifying offence the Commission may, if and when it becomes aware of this, use its discretion to disqualify them as a trustee even if this is after the caution is spent. The Commission could also exercise its discretion when it becomes aware that a trustee (either whilst a trustee or otherwise) accepted a caution for a disqualifying offence at some point in the past even if by that point the caution is spent.[278] In exercising these powers to disqualify the Commission would also need to be satisfied that the person was "unfit" to be a trustee given that it is proposed that disqualification depends on a person being both "unfit" under section 181A(3)(b) and one of the Conditions A-F in section 181A(4) being satisfied. Additionally, the Commission's general duty to have regard to the principles of best regulatory practice, including proportionality (as provided for in section 16 of the 2011 Act) would apply to any decision to disqualify and in the case of cautions would apply to matters such as the fact that the caution was spent.

231. Further, we understand that the power to disqualify could be used in the case where an individual had a relevant caution and was about to be appointed as a trustee.

232. The power to disqualify on the basis of a caution extends to cautions accepted for offences under overseas law. Paragraphs 236 to 242 below raise concerns around disqualification on the basis of overseas convictions. The same issues as to justice and, in particular evidence and burdens of proof, arise in the case of overseas cautions.

233. The Committee appreciates that this is a discretionary power and that accepting a caution for a disqualifying offence is only one of the conditions which must be satisfied if the Commission is to exercise its power to disqualify a person from acting as a trustee. The question of fitness to be a trustee also arises. The Committee remains concerned, however, that the clause is not readily understood by those who will be subject to it and/or advise on it.

234. The circumstances (including when the caution was accepted) which will give rise to a caution for a disqualifying offence need to be made clear either on the face of the Bill or in detailed guidance which is needed for this provision. Additionally, factors dictating the length of any disqualification (such as a requirement for the Commission to have regard to when the caution was or is spent) could helpfully be included on the face of the Bill. Such a provision could be an addition to that which has already been drafted to deal with the length of disqualification arising from a conviction which will in due course be spent. The Government is urged to consider this point and address it in its response to this Report.

235. The extension of this provision to overseas cautions is not supported by the Committee which has concerns as to evidence and burdens of proof (and justice generally) which are explored in the paragraphs below in relation to overseas convictions. Our conclusions on those aspects of overseas convictions apply equally to overseas cautions.

D) OVERSEAS CONVICTIONS (SECTION 181A(4)B)

236. New section 181A(4)B, inserted into the 2011 Act by clause 9 of the draft Bill, creates a discretionary power to the Commission to disqualify a person cautioned or convicted of an offence under the law of a country or territory outside the United Kingdom where the act which resulted in the caution or conviction would have constituted a disqualifying offence had it been done in the UK. A number of charities active overseas commented on this provision as did others with a more general interest in the discretionary powers which are included in clause 9.

237. Bond was concerned that this power was too broad and could lead to individuals facing censure "even where the standards of evidence and justice would not be accepted in a UK court". It argued that overseas convictions must be able to stand up in a UK court and that "broad civil liberty and sovereignty issues" were at stake. It pointed out that other countries had different lists of proscribed organisations as well as different legal processes.[279]

238. The Muslim Charities Forum highlighted examples "in which a charity is indicted and/or listed as a proscribed organisation but does not have a legal case to answer in the UK or would be cleared of wrongdoing in the UK." It also highlighted the importance of the UK's legal sovereignty in allowing such charities to continue their work unimpeded.[280] It argued that findings of fact in a foreign jurisdiction would lead to censure under the Bill, even where the standards of evidence and justice would not be accepted in a UK court. UK definitions, standards of evidence and due process must be used and overseas convictions must be able to stand up in a UK court for them to apply: there were broad civil liberty and sovereignty issues. It was aware that in the past, a charity might be indicted and/or listed overseas but have no legal case to answer in the UK or would be cleared of wrongdoing in the UK. In the past, the UK approached such a situation in a way that did not compromise its legal sovereignty, and has allowed such charities to continue their work.[281]

239. Professor Morris pointed out that whilst an offence overseas might be an equivalent offence to one in the UK and might be called the same thing, the way in which somebody was "convicted of that offence, the burden of proof, the trial system and so on might well be quite different from what operates in this country".[282] Given that this was a new area for the Commission, it would need to carry out quite a bit of work which might give rise to resource implications.[283]

240. The CLA also expressed concerns that evidential standards and judicial processes vary so widely. It was "not clear what assurance there would be that such considerations would be known to the Commission and to what extent they would be taken into account".[284] It also had concerns that the provision would have retrospective effect and that it was to apply to cautions as well as convictions. It also referred to the Small Business Enterprise and Employment Bill, currently before Parliament, which proposes to extend the Company Directors Disqualification Act regime to allow disqualification for "certain convictions abroad". Its proposals differ from those in clause 9. In particular, in the proposed company directors' regime provision: the decision is to be made by the Court on the application of the Secretary of State; the provision would not have retrospective effect and it would not apply to cautions. The CLA suggested that any form of extension in relation to offences abroad should be no broader than that applied in the case of company directors.[285]

241. The Committee is concerned as to the possible ramifications of this provision and at present we would not support this proposal.

242. Therefore we recommend the Government should reconsider the possibility of overseas convictions which appear to have an equivalent in UK law forming the basis for a disqualification. Our concerns apply equally to overseas cautions. The approach being taken in the Small Business, Enterprise and Employment Bill, currently before Parliament, in relation to both overseas convictions and cautions leading to the disqualification of company directors should be considered in the context of charity trustees.

E) OTHER OFFENCES AND ISSUES OF INTERPRETATION (SECTION 181A(4)D-F)

243. The question arose as to whether an individual with convictions for other offences should be able to act as a charity trustee, as this could potentially damage public trust and confidence in charities. Would new section 181A(4)F in clause 9 of the draft Bill give the Charity Commission discretion to disqualify individuals on this basis? The effect of this provision and also of Conditions D and E was discussed by a number of witnesses.

244. Sir Stuart Etherington from NCVO suggested that certain offences considered "repugnant" by society and not specifically covered by any other Condition giving rise to a power to disqualify might nonetheless result in disqualification by virtue of section 181A(4)F, although discretion would be necessary for the Commission to disqualify on this basis.[286] Michelle Russell from the Charity Commission shared this view, suggesting that Condition F might be used in the case of an individual convicted of a sexual offence being involved in a children's charity.[287]

245. Richard Corden also considered this point. He suggested that a disqualification power could protect a particular charity from "somebody who might be completely unsuitable to be a trustee of that charity but not necessarily of others"[288]; for example, a person with unspent offences for animal cruelty who would be unsuitable as a trustee of an animal welfare charity might not need to be disqualified from acting as a trustee of, for example, a charity to preserve an old church. Clause 9 of the Bill as drafted would allow the Charity Commission to disqualify a person by order in those circumstances. As regards offences which are "so repugnant to society" that a person who has an unspent conviction for one of those offences should not, while the offence remains unspent, be allowed to be in charge of any charity, Mr Corden suggested that would be a "matter of public confidence"[289] which Parliament is well placed to consider and that "it [was] not for the Charity Commission".[290]

246. Professor Morris considered that the new range of powers to disqualify a person could, if used in appropriate cases strengthen the Commission's regulatory powers and, if the Commission made sure the right messages reached the public, bolster public trust and confidence in the Commission.[291]

247. The Association of Charitable Foundations[292] was critical of the discretionary element in Condition F which meant that the Commission could look at anything in the past behaviour of an individual to determine their fitness to be a trustee. It suggested that this allowed too much discretion to the Commission and that more specification was required as to why a person may be disqualified as well as how the power will be used and reported. Safeguards as to the evidential threshold and the ability to challenge and appeal decisions also need to be in place.

248. Bond, commenting across the piece, was highly critical, noting that several proposed amendments were "ambiguous, include unclear wording and give too much discretion to the Charity Commission. Several others [were] too broad. This [was] an inadequate foundation for the significant consequences that action by the Charity Commission would have on a charity's reputation and funding".[293]

249. The CLA considered Condition F to be "far too broad and subjective".[294] It also asked "on a practical level, how it may be demonstrated that any particular conduct was 'likely to be damaging to public trust and confidence in charities'. As currently drafted, Condition F would appear to open up the possibility of a continually shifting ground of conduct (whether or not anything to do with charities) which might give rise to disqualification".[295] As a minimum, it considered that an element of misconduct should be required and that the Commission should have opened a statutory inquiry. It went on to refer by way of comparison to the company directors disqualification regime where disqualification may be made (subject to procedural safeguards): for persistent breaches of company legislation; on the basis of conduct where the director is or was director of an insolvent company; or where it is expedient in the public interest on the basis of "investigative material" arising from investigations carried out under statute.

250. The general tenor of evidence was summarised in the views of NCVO which considered that safeguards were required to ensure that the discretionary powers were exercised in a proportionate and fair way; the current draft Bill did not address this point effectively. The discretionary power as currently drafted allowed too wide discretion to the Commission: some of the criteria listed were not objective events but depend on the subjective judgement of the Commission.[296]

251. The JCHR raised human rights issues with the Committee in relation to clause 9. It referred specifically to Condition F and, in relation to clause 9 more generally, to the Commission's powers to disqualify being exercisable where a person is "privy to" misconduct or mismanagement. It observed that "such broad and vague language significantly increases the power of Commission and provides insufficient certainty to both individual trustees and charities about the possible consequences of their conduct in relation to matters which may have nothing to do with the management or administration of a charity".[297]

252. These comments need to be considered together with the JCHR's comments about the overall lack of legal certainty in the Bill and viewed as clear examples of its concerns. The JCHR went on to link this lack of certainty to human rights concerns which, it observed, arose due to the potential impact of the Commission's "extensive powers" on various rights, including the right to respect for private and family life (including reputation), (Article 8 ECHR), the rights to freedom of expression and association (Articles 10 and 11 ECHR) and property rights (Article 1, Protocol 1 ECHR). It also raised concerns about the lack of certainty given the Commission's role in the PREVENT strategy which relates to terrorism and the inclusion in the Bill of new powers to address terrorism offences.[298]

253. We understand the need for a broad power to disqualify an individual in certain instances, not all of which can be specifically identified and encapsulated in legislation. We are concerned, however, at the lack of safeguards which accompany this power and consider that there should be a review of the way in which other disqualification regimes (for example, in the case of company directors) ensure that there are clear limits on the powers of a regulator and criteria which provide for the circumstances in which a person may be disqualified. We agree with the JCHR and consider that there is a need for Condition F (and other broad concepts which occur in the Bill (such "privy to", considered above)) to be clearly defined.

F) POWER TO ADD OR REMOVE A CONDITION (SECTION 181A(5))

254. New section 181A(5) would enable the Minister by affirmative procedure regulations to amend the list of Conditions in section 181A by adding new ones or removing existing ones. The DPRRC did not find the delegation or proposed level of scrutiny to be inappropriate, subject to one concern. It found the power conferred on the Minister to add a Condition to those already specified appeared very wide. There appeared to be no requirement that the new Condition should specify a type of discreditable conduct which could have a bearing on a person's fitness to be a trustee of a charity. The DPRRC considered this to be a surprising omission.[299]

255. The DPRRC also considered whether the provision could have retrospective effect and concluded (as with new section 178A(4)) that it did not.[300]

256. We are content that the order making power should be included in the Bill but draw the Cabinet Office's attention to the comments made by the DPRRC.

Proposals not proceeded with

Disqualification where only one or two trustees remain (Proposal 4)

257. In consultation Proposal 4, the Cabinet Office proposed to amend the Charity Commission's powers under section 80 and section 81 of the 2011 Act to enable it to act swiftly to deal with disqualifications that would otherwise result in an insufficient number of trustees for the charity to continue operating.

258. Although this proposal was well-supported by respondents to the consultation, the Government decided that the circumstances in which it would arise were rare and that the Commission could manage such situations with their existing powers.

259. The Committee did not think this proposal needed further consideration.

POSITIONS OF POWER (PROPOSAL 5)

260. Proposal 5 of the Cabinet Office's consultation exercise suggested that a disqualified trustee should not be able to hold another position of power in a charity.

261. Provisions in the 2011 Act presently disqualify a person from acting as a charity trustee but do not preclude their acting in any other position of power in a charity. Paragraph 77 of the consultation document[301] proposed extending the effect of the existing disqualifying provisions in section 79 of the 2011 Act. The result would be the extension of existing disqualifying provisions so that a disqualified person would not be able to be concerned or take part in the promotion, formation or management of a charity (as in the approach taken in the Company Directors' Disqualification Act 1986). The aim would be to prevent disqualified persons exercising management control over charity funds through other offices or management positions, particularly those involving specific financial responsibility.

262. There was a mixed response from witnesses to the proposal. The Minister for Civil Society was generally supportive of the proposal but wanted to explore how the Commission's powers might be defined in statute.[302] Given the examples provided by the Directors' Disqualification legislation and HMRC's "fit and proper person" test, he thought that it would be possible to produce statutory provisions addressing the point.

263. Ben Harrison from the Cabinet Office told the Committee that the proposal had been "reasonably well supported" in the Consultation and that Cabinet Office was "open-minded" about its inclusion. He raised the question of whether the power, if included in the Bill, should rest with the Commission or the courts (as is the case with the Company Directors Disqualification Act).[303]

264. Kenneth Dibble from the Charity Commission told us "that it [was] counter-intuitive that an individual … disqualified from being a trustee, because of either statutory prohibition or intervention by the Commission, should be able to have senior office as an employee in that charity, or in any other charity. With due respect to the issue that individuals should not be prevented from earning a livelihood, [the Commission felt] that this should be pursued further".[304]

265. Some other witnesses, whilst generally positive about the intention of this proposal,[305] were concerned about its vague nature and the lack of definition as to what constitutes a "position of power".[306] Others, such as Unlock, were opposed to the inclusion of the proposal, saying it "would not add much weight to what the Commission would be trying to do".[307] The Association of Charitable Foundations questioned whether this power would be compatible with employment and human rights law[308] and the Churches' Legislation Advisory Service[309] also had concerns about this. Neither body expressed its views on this point in any detail but the Commission did not regard it as an insuperable problem given its powers under section 79 of the 2011 Act to remove "an officer, agent or employee" of a charity (where there has been misconduct or mismanagement and there is a need to protect property) and the existence of similar powers vested in other regulators.[310]

266. The CLA's response to the consultation exercise raised a number of concerns. Whilst it supported the proposal in principle, it considered that safeguards would be needed given the "far reaching consequences including restriction on employment opportunities and the individual's human rights". It considered that the proposal which would prevent a disqualified person from being concerned or taking part in the promotion, formation or management of a charity went far beyond "preventing disqualified trustees acting in another position" (which was how the Cabinet Office styled the provision). "Other conditions of power" would need to be carefully defined in any legislation.[311]

267. The CLA noted that, whilst the proposed wording followed that applying to the disqualification of company directors, it was not proposed that the regime and safeguards in that legislation should be followed. For example, in the case of company directors, disqualification is by the court (a matter not addressed in Proposal 5) and in most cases is subject to a maximum term. The CLA considered that safeguards were required for the proposed clause 5 powers, for example, requiring the Commission to seek an order from the Tribunal before exercising the disqualification power, providing that any order be for a defined term and providing the ability to seek a waiver in respect of a disqualification. The company directors' legislation also provides for an alternative to a disqualification which (subject to certain conditions) allows an individual to give an undertaking not to act as a trustee or in another position of power for an agreed number of years. The CLA concluded that the case had not been made for replicating the company directors' regime without safeguards (which would, in addition to providing clarity and a transparent regime, also, presumably, satisfy the CLA's human rights and employment concerns).[312]

268. At the request of the Committee, the Financial Conduct Authority provided evidence outlining its comparable power to prohibit an individual deemed not to be fit and proper from performing functions in relation to a regulated activity. The FCA has, built into its regime, safeguards designed to provide article 6 ECHR protections by, for example: being required to issue notice of a prohibition order and giving an individual a reasonable period to make representations and by allowing for individuals served with such orders the right to refer the matter to the Upper Tribunal (Tax and Chancery Chamber) within 28 days from the date the contested final notice was issued. The Tribunal is independent of the FCA and it reviews the case from the start, rather than simply hearing grounds for appeal against the order.[313]

269. We understand the potential value of the proposed provision but would only support its inclusion with some additional safeguards.

  1. We recommend that consideration should be given to incorporating the procedures for disqualification included in the company directors' disqualification legislation and that the Cabinet Office should examine the model of the Financial Conduct Authority's fitness and propriety test[314] to design a regime which is human rights and employment rights compliant.



192   Q 18 (Michelle Russell) Back

193   IbidBack

194   Written evidence from NCVO (PCB0010) Back

195   Written evidence from Professor Gareth Morgan (PCB0001) Back

196   Q 346 (Detective Chief Superintendent Terri Nicholson) Back

197   Written evidence from Churches' Legislation Advisory Service (PCB0006) Back

198   Written evidence from Charity Law Association (PCB0039) Back

199   Memorandum from the House of Lords Select Committee on Delegated Powers and Regulatory Reform, Appendix 3 Back

200   Q 521 (Rob Wilson MP) Back

201   These designations are contained in Part 1 of the Terrorist Asset-Freezing etc Act 2010 and the Al-Qaida (Asset-Freezing) Regulations 2011 Back

202   Written evidence from NCVO (PCB0010) Back

203   Q 301 (Detective Chief Superintendent Terri Nicholson) Back

204   Written evidence from The Henry Jackson Society (PCB0018) Back

205   Q 534 (Rob Wilson MP) Back

206   Q 270 (Richard Corden) Back

207   Written evidence from Joseph Rowntree Trust (PCB0028) Back

208   See Q 139 (Professor Gareth Morgan), Q 60 (Sir Stuart Etherington), Q 168 (Jo Coleman) and written evidence from Professor Gareth Morgan (PCB0001), Bond (PCB0033) and Muslim Charities Forum (PCB0029) Back

209   Q 180 (David Anderson QC) Back

210   Q 182 (David Anderson QC) Back

211   Q 274 (Dr Hany El-Banna OBE) Back

212   Q 329 (Detective Chief Superintendent Terri Nicholson) Back

213   Q 193 (David Anderson QC) Back

214   Kate Mackintosh and Patrick Duplat, Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action (July 2013) p 24: https://docs.unocha.org/sites/dms/Documents/CT_Study_Full_Report.pdf [accessed 2 February 2015] Back

215   Ibid., p 34 Back

216   Q 539 (Rob Wilson MP) Back

217   QQ 540-542 (Rob Wilson MP) Back

218   HL Deb, 2 February 2015, col 479  Back

219   Tom Keatinge, Uncharitable Behaviour (December 2014): http://www.demos.co.uk/files/DEMOSuncharitablebehaviourREPORT.pdf?1419986873 [accessed 2 February 2015] Back

220   Q 182 (David Anderson QC) Back

221   Written evidence from Bond (PCB0033) Back

222   Q 468 (Michelle Russell) Back

223   Q 463 (William Shawcross) Back

224   Q 472 (Michelle Russell) Back

225   Q 466 (Michelle Russell) Back

226   Q 318 (Detective Chief Superintendent Terri Nicholson) Back

227   In the United States of America the Office of Foreign Assets Control in the Treasury Department provides guidance for NGOs for this purpose. See Department of the Treasury, Guidance Related to the Provision of Humanitarian Assistance by Not-For-Profit Non-Governmental Organizations (October 2014): http://www.treasury.gov/resource-center/sanctions/OFAC-Enforcement/Documents/ngo_humanitarian.pdf [accessed 11 February 2015] Back

228   Serious Fraud Office, Bribery Act 2010: Joint Prosecution Guidance of the Director of the Serious Fraud Office and the Director of Public Prosecutions http://www.sfo.gov.uk/media/167348/bribery_act_2010_joint_prosecution_guidance_of_the_director_of_the_serious_fraud_office_and_the_director_of_public_prosecutions.pdf [accessed 2 February 2015]. We recognise that this is different in that no prosecution for a bribery offence can be brought unless it has the personal consent of the Director of Public Prosecutions or Director of the Serious Fraud Office. Back

229   Director of Public Prosecutions, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html [accessed 2 February 2015] Back

230   Q 222 (Pauline Broomhead), Q 238 (Sir Stephen Bubb) and Q 283 (Christopher Stacey) Back

231   QQ 282-283 (Christopher Stacey) Back

232   Sentences of imprisonment or detention imposed for specified sexual and violent crimes. Back

233   Written evidence from Directory of Social Change (PCB0015) Back

234   Ibid. Back

235   Ibid. Back

236   Ibid. Back

237   Q 286 (Christopher Stacey) Back

238   Q 288 (Christopher Stacey) Back

239   Written evidence from Unlock (PCB0009) Back

240   Q 283 (Christopher Stacey) Back

241   Q 277 (Christopher Stacey) Back

242   Q 279 (Christopher Stacey) Back

243   Written evidence from the Charity Law Association (PCB0039) Back

244   Q 448 (William Shawcross) Back

245   Q 449 (Michelle Russell) Back

246   Q 451 (Michelle Russell) Back

247   Written evidence from Association of Church Accountants and Treasurers (PCB0026), Bond (PCB0033), Charity Finance Group (PCB0034), Directory of Social Change (PCB0015), and The Christian Institute (PCB0011) Back

248   Written evidence from Bond (PCB0033) Back

249   Written evidence from Charity Finance Group (PCB0034) Back

250   Written evidence from Directory of Social Change (PCB0015) Back

251   Written evidence from The Christian Institute (PCB0011) Back

252   Written evidence from Charity Law Association (PCB0039) Back

253   Delegated Powers Memorandum, Appendix 3 Back

254   Article 7 provides that a person shall not be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed. Further, a heavier penalty than the one that was applicable at the time the criminal offence was committed shall not be imposed. Back

255   R v Field (2003) 3 All ER 617 Back

256   Written evidence from Charity Commission for Northern Ireland (PCB0030) Back

257   Written evidence from Charity Commission (PCB0035) Back

258   Written evidence from Charity Law Association (PCB0039) Back

259   Q 160 (Nicola Evans) Back

260   Q 171 (Nicola Evans) Back

261   Written evidence from Charity Finance Group (PCB0034) Back

262   Written evidence from Directory of Social Change (PCB0015) Back

263   Written evidence from NCVO (PCB0010) Back

264   Q 527 (Rob Wilson MP) Back

265   Q 527 (Ben Harrison) Back

266   Q 356 (Andrew Edwards) Back

267   Q 530 (Ben Harrison) Back

268   Written evidence from Charity Finance Group (PCB0034) Back

269   Written evidence from Directory of Social Change (PCB0015) Back

270   Written evidence from Professor Gareth Morgan (PCB0001), Q 146 (Professor Gareth Morgan) Back

271   Written evidence from Charity Law Association (PCB0039) Back

272   Q 457 (William Shawcross) and QQ 514-515 (Rob Wilson MP) Back

273   Q 171 (Nicola Evans) Back

274   Written evidence from Charity Law Association (PCB0039) Back

275   Q 286 (Christopher Stacey) Back

276   Q 139 (Professor Debra Morris) Back

277   The DPRRC doubted that there was not any risk of retrospection in that case or of contravention of Article 7 ECHR. Those conclusions would also appear to apply in the case of clause 9. Back

278   We understand that, while a caution is spent immediately, the record of the caution being issued may remain on an individual's record and could be disclosed in certain limited circumstances, such as by Disclosure and Barring Service (DBS) checks. Back

279   Written evidence from Bond (PCB0033) Back

280   Written evidence from Muslim Charities Forum (PCB0029) Back

281   Ibid. Back

282   Q 139 (Professor Debra Morris) Back

283   Ibid. Back

284   Written evidence from Charity Law Association (PCB0039) Back

285   Ibid. Back

286   QQ 60-63 (Sir Stuart Etherington) Back

287   Q 19 (Michelle Russell) Back

288   Q 237 (Richard Corden) Back

289   Ibid. Back

290   Ibid. Back

291   Q 124 (Professor Debra Morris) Back

292   Written evidence from Association of Charitable Foundations (PCB0023) Back

293   Written evidence from Bond (PCB0033) Back

294   Written evidence from Charity Law Association (PCB0039) Back

295   Ibid. Back

296   Written evidence from NCVO (PCB0010) Back

297   Letter from Dr Hywel Francis MP to the Chairman, 7 January 2015, Appendix 4 Back

298   Ibid. Back

299   Memorandum from the House of Lords Select Committee on Delegated Powers and Regulatory Reform, Appendix 3 Back

300   Ibid. Back

301   Cabinet Office, Consultation on extending the Charity Commission's Powers to Tackle Abuse in Charities (December 2013): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/263248/Consultation-on-Extending-the-Charity-Commissions-powers_4-December.pdf [accessed 2 February 2015] Back

302   Q 524 (Rob Wilson MP) Back

303   Q 17 (Ben Harrison) Back

304   Q 16 (Kenneth Dibble) Back

305   Written evidence from Association of Church Accountants And Treasurers (PCB0026), Charity Commission for Northern Ireland (PCB0030) and Wales Council for Voluntary Action (PCB0021) Back

306   Q 67 (Sir Stuart Etherington) and written evidence from NCVO (PCB0010) Back

307   Q 290 (Christopher Stacey) Back

308   Written evidence from Association of Charitable Foundations (PCB0023) Back

309   Written evidence from Churches' Legislation Advisory Service (PCB0006) Back

310   Written evidence from Charity Commission (PCB0035) Back

311   Written evidence from Charity Law Association (PCB0039) Back

312   Ibid. Back

313   Written evidence from Financial Conduct Authority (PCB0038) Back

314   Financial Conduct Authority, 'Fitness and Propriety': http://www.fca.org.uk/firms/being-regulated/approved/ approved-persons/fitness [accessed 2 February 2015] Back


 
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© Parliamentary copyright 2015
Prepared 25 February 2015