Charities (Protection and Social Investment) Bill [ Lords ] (Third sitting)

Debate between Rob Wilson and Jo Stevens

Tuesday 5th January 2016 Public Bill Committees

[Jo Stevens (Cardiff Central) (Lab)]

It is a pleasure to serve again under your chairmanship, Mrs Main. I wish all members of the Committee a happy new year.

I have a small number of points about clause 10. No amendments were tabled by the Opposition—the main substance of the clause is sensible and uncontroversial—but, as someone who worked previously as a criminal defence lawyer, I have some concerns about the process for obtaining a waiver to the automatic disqualification from being a charity trustee or holding a senior management position, and the impact on charities working in the field of rehabilitating ex-offenders.

At a time when the prison population continues to grow and the fragmentation of the probation service, post-privatisation, is seeing some private providers cutting jobs in probation by more than 40%, the rehabilitation of ex-offenders is more important than ever, and the pressure on charities working in this strand of the sector will be increasing all the time. Rehabilitation and reducing re-offending rates must remain a priority for the Government, and the work that charities such as the Prison Reform Trust and Unlock do—alongside incredibly hard-working and committed probation practitioners, who are under enormous pressure—is critical to this. Those charities have expressed concern about the waiver process and the impact it will have. I share many of those concerns.

As the Secretary of State for Justice has stated, we should not judge individuals by the worst moment in their lives. Instead of seeking to narrow opportunities for ex-offenders to reintegrate and contribute to society, we should be supporting their efforts to contribute to civil society, both through paid employment in the voluntary sector and as volunteers. The Committee may know that many charities that work to rehabilitate people with criminal records employ ex-offenders, either as trustees or, as my hon. Friend the Member for Redcar has pointed out, in senior management positions, because at the heart of the voluntary sector is the principle of working with service users, rather than doing things to them. This is no less important with people in the criminal justice system than with any other group. Any unnecessary barriers to the recruitment of people with convictions as trustees or into senior positions is, perhaps understandably, seen by charities working in this sector as a direct threat to their core mission.

I was struck by what the Staffordshire and West Midlands Community Rehabilitation Company said in its written evidence:

“Many of the people that we work with have no work history or any way of getting a reference through ‘normal’ employment routes but one of the areas that they can gain experience is by working with charities, particularly those that are service user led. If the Charities Bill makes it difficult or impossible for people with convictions to act as Trustees or paid employees of these organisations, and others, then it would be shutting down an opportunity for someone trying to re-establish themselves in society from getting a foot on the ladder. Working as a Trustee for example can give a person with a conviction(s) a sense of purpose, it can help them improve their confidence, increase their social circle, give them an opportunity to develop new skills, provide an opportunity to get a reference, to develop a work ethic, to feel that they are valued and can make an important contribution. All of these things are crucial to rehabilitation and desistance and if these opportunities are restricted or removed completely it makes the job of rehabilitating people more difficult.”

There are 1,750 voluntary sector organisations whose main client group are people in the criminal justice system, as well as a further 4,900 organisations that support them as part of their work. The Government have acknowledged the potential for waivers to be issued in cases where an appropriate individual seeks to be a trustee of, or a senior manager in, an ex-offender charity. The Minister has helpfully provided those statistics, although it is a very small number. The Government have said that they will ask the Charity Commission to review the waiver process and to consult charities.

Will the Minister tell us when the consultation is likely to take place? Is it the working group he has just mentioned? Has its work already started? When is the commission likely to issue its new guidance and the information requirements that it will be asking applicants to provide when they apply for a waiver? I have one further question, and I would be grateful if he answered it either today or in writing. Extending the waiver process to senior management positions will, of course, place additional burdens on the Charity Commission. What additional resources will be provided to the commission to meet the extra demands brought about by the inevitable increase—we are not yet clear how great it will be—in applications for waivers?

[Mr Wilson]

I thank the hon. Member for Redcar for supporting this clause. It is difficult to know where to begin, but I will try to address as many of the questions raised by hon. Members as possible.

I will begin with the questions raised by the hon. Member for Cardiff Central, who seems to be arguing that extending the disqualification provisions might undermine the work of some rehabilitation charities. I disagree with that because, as I said earlier, it is right that the commission looks beyond the benefits to the individual and considers the much wider risks and benefits not only to the charity directly concerned, but to the reputation of charities across the board. The proposed disqualification powers protect charities from individuals who present a known risk, which is the important thing. These are, in the main, people who present a known risk, which is why these powers and this safety net are important.

The hon. Member for Redcar asked how many people would be affected by the extension of the automatic disqualification. The truth is that we do not know the exact number of current trustees, chief executives or chief finance officers who could be affected by the extension of automatic disqualification, but our best estimate is that the number of people affected could be in the low hundreds. Compared with the number of people working in the charitable sector, it is a fairly small proportion, but as I said earlier, we will be giving those individuals a long period of time to make adjustments either by applying for a waiver or by resigning their positions, if that is what they need to do.

On the question about non-governmental organisations and wider counter-terrorism legislation, I recognise that that is a concern for some charities operating in some of the more difficult areas of the world. We need to develop a clear understanding of NGOs’ concerns and to see examples of where such issues occur. Several Departments, including the Home Office, DFID and the Treasury, have been engaging with NGOs to try to understand their concerns and to ensure that such concerns are covered in the guidance wherever possible.

--- Later in debate ---

[Mr Wilson]

I do not propose to repeat what I have said about the new disqualification power in clause 11, but I will focus on the specific details of amendment 5. I am grateful for the hon. Lady’s explanation of the amendment, which would give the Charity Commission the job of publishing at least every five years guidance on how it assesses unfitness. I recognise that this is an attempt to narrow the breadth of the commission’s discretion, as the hon. Lady said, but although I have some sympathy with the intention behind the amendment, I simply do not believe that it is necessary.

The Charity Commission has published details of its initial thoughts on how it would exercise the disqualification power, with positive feedback from charities and Members of the other place. It did so when the Bill was introduced in the other place. In the document, the commission recognises that this is a significant new power, provides reassurance that it will use the power only when there is a clear case for doing so, and says that it should explain clearly what it will take into account before using the power.

In the paper, the Charity Commission explains its initial thinking on how it would apply the first limb of the test—criteria A to F. It goes on to explain its initial thinking on how it would apply the second limb of the test—assessing a person’s unfitness to serve as a charity trustee. The commission’s assessment of unfitness, based on its regulatory experience, is that unfitness is likely to be a result of failure in one or more of the following broad categories: honesty and integrity, competence, and credibility. The commission goes on to set out, under each of those headings, the types of conduct that it would consider and examples of the conduct that in its view would demonstrate unfitness.

Under the heading “honesty and integrity”, the commission would consider evidence of abuse of a position of trust. That could be demonstrated by exploiting a position of trust for personal gain, misleading a public body, or other forms of dishonesty, deception or cheating that could give rise to concerns about the individual’s fitness to serve as a charity trustee. Dishonesty is well understood in charity law, and forms part of the 2011 Act, so this is not an entirely new or unfamiliar concept.

Under the competence heading, the commission would consider evidence that the person is incapable of or unwilling to fulfil the duties and responsibilities of a trustee. That could include, for example, failing to act

“in compliance with the governing document and rules of the charity”,

failing to keep proper accounting records for the charity, or showing

“a wilful disregard for management of conflicts of interests”.

Again, competence is a concept widely used by other regulators, so that is not entirely new either. By way of example, under section 61 of the Financial Services and Markets Act 2000, the Financial Conduct Authority may grant an application for someone to become an authorised person only if it is satisfied that the candidate

“is a fit and proper person to perform the function”

in question.

The Act does not prescribe matters which must be taken into account by the FCA in making the determination, but details are given in the FCA handbook.

Under the credibility heading, the commission would consider conduct that impacts on the individual’s personal credibility and reputation to such an acute extent

“that it calls into question their fitness to act in the quasi-public role of trustee”.

That could include, for example,

“support for and participation in discredited tax avoidance schemes”,

or

“actions in fundraising that gave them high personal benefits to the detriment of the charity or in which they used high-pressure selling or other discredited methods”.

Reputation is a key part of a charity’s assets under charity law, and a key part of the commission’s work in furtherance of its statutory objective with regards to public trust and confidence. Again, this heading is not an entirely new concept for the commission or the charity sector.

The final limb of the test is that the commission must consider whether exercising the disqualification power is

“in the public interest in order to protect public trust and confidence”

in charities. The commission’s draft paper explains that under this test it would consider whether disqualification

“will protect charities from those who would not carry out the role of trustee with integrity, honesty, capability or credibility in the interests of the charity and its beneficiaries, and ultimately be trusted by the public to do so”.

The commission sets out factors it would consider under this limb of the test, including

“the nature and seriousness of the conduct…the extent of the unfitness and whether it might be temporary or time-specific”.

I hope that hon. Members have had an opportunity to consider the commission’s draft paper, and that they take reassurance from it and from the commission’s commitment to work it up into proper draft guidance, and consult publicly on that guidance before the provision is commenced. Other regulators with similar powers are also given the responsibility, without defining the exact details in statute as this amendment proposes, to work up appropriate, proportionate and detailed guidance with regards to the use of this type of power. In addition, it is important to note that the commission keeps all of its guidance under review to ensure that it remains relevant and up to date.

As I have mentioned in previous sessions, the commission recently consulted on and launched an updated version of “The essential trustee” guidance. It is also consulting on an updated version of fundraising guidance for trustees, and there are other pieces of work under review. The commission can and does ensure that its guidance is relevant and up to date, and it will do so at the appropriate time. The whole Bill will be reviewed after three years, and subsequently every five years. This power will be looked at carefully, and the guidance will no doubt be important in the effective use of the power. On that basis, I do not think that amendment 5 is necessary. I hope that the hon. Member for Redcar will accept my explanation, and decide not to press her amendment.

[Jo Stevens]

rose—

Charities (Protection and Social Investment) Bill [ Lords ] (First sitting)

Debate between Rob Wilson and Jo Stevens

Tuesday 15th December 2015 Public Bill Committees

[Mr Wilson]

I will come to that exact point in the amendment in a few moments. I hope I can give the hon. Lady some comfort that we are responding to her request.

Let me return to the important safeguards. This measure is the one new regulatory power in the Bill that we and the Charity Commission expect may impact on more charities than any of the other proposed powers. Most of the powers in the Bill are targeted at serious, deliberate abuse of a charity or serious mismanagement putting charity assets or beneficiaries at risk. The official warning power would be used more frequently by the Charity Commission as a more reasonable and proportionate way of dealing with breaches where the risks and impact on charitable assets and services are lower.

The Joint Committee on the draft Bill gave its qualified support to the official warning power, saying:

“We are however persuaded that in principle it would be useful for the Commission to have at its disposal ‘something in between’ guidance and the opening of an inquiry”.

It qualified its support for the official warning power by recommending that several points be addressed in the Bill. The Government accepted all but one of these. The Joint Committee recommended limiting the scope of a warning to a breach of statutory provision or breach of Commission order or direction.

[Jo Stevens]

The Joint Committee was satisfied that the issue of a warning did not meet the further safeguard and appeal to a tribunal. It reached that conclusion on the basis that necessary details were added to the Bill. However, those details are not in the Bill. Will the Minister respond to that point?

[Mr Wilson]

The criteria for issuing an official warning are now clearly stated in the Bill—breach of trust or duty, or other misconduct or mismanagement. These are not as narrow as the criteria recommended by the Joint Committee, but we decided that limiting the warning power to a failure to comply with a limited range of statutory provisions, or order or direction of the Commission, would result in a power that was only half effective at best. Charity law is a mix of statute and case law, and the scope of the warning power needs to reflect that. It would be wrong to limit the warning power to just breaches of statutory provisions or commission orders or directions, as this would limit the regulator to issuing warnings on less than half the legal framework.

I recognise that a breach of duty might not always be completely clearcut, but it is right that the regulator of charities should be able to reach a view on whether a charity’s trustees have breached their duties, and should be warned about their conduct. It would be wrong to expect the Charity Commission to have to open a statutory inquiry and consider exercising its more serious compliance powers in cases where charity trustees have breached their duties but not a specific statutory provision.