CLA – CRB CHECKS
1. Introduction
Michael King was asked by the CLA Executive Committee to obtain an opinion of counsel in relation to the Charity Commission’s Guidance (live from 1st June 2006) on the need for putative trustees of “children’s charities” and of charities caring for vulnerable people to obtain clearance from the CRB, as there was a concern that the guidance might be disproportionate and might not be effective in its attempt to stop the climate in which abuse of children and vulnerable people can thrive. Furthermore there was a concern that the Commission were delaying registration until CRB clearance for each trustee was available.
In the event Michael obtained an Opinion from a member of the Criminal Bar, Nicholas Purnell QC which is available here to read. {web link to opinion}
Subsequently a consultation with Counsel was joined by representatives of the CLA and of the Commission and a note of that meeting is available here to read. {web link to consultation with Counsel}
2. Further Advice from Counsel
After the consultation with Counsel Stephen Lloyd raised the further question of the need for clarity as to what was a children's charity - would it for example include a charity amongst whose customers/beneficiaries are children.
This was Nick Purnell's view:
"The effects of sections 35 and 36 of The Criminal Justice and Courts Act 2000 operate to define a "regulated position" ( ie governing bodies of educational institutions and trustees of children's charities S36 ) and "a children's charity" as a charity wherein, among the individuals normally working, are individuals who are "working in regulated
positions." (S36(11) and (12). Proportionality cannot come into play to qualify or exclude where a statutory definition is clear. Although this definition of a ship by the composition of its crew is a bit contorted, it does not require regular contact with children or any finite proportion of "regulated" employees. It is a deliberately widely drawn definition."
3. What next ?
The CC are clearly happy to consult on the operation of the Guidance and were alive to the need to act proportionately, though counsel has effectively confirmed that they have got the law (relating to the need for CRB checks) right. Michael King’s suggestions to the CLA Executive Committee were:
3.1. We circulate the Opinion to our members, asking them to let us know how the guidance is affecting the registration process and whether there are any knock on effects which could result, say in recruitment problems or poorer governance. I am happy to do a brief note to go with the Opinion if the Committee agrees.
3.2 When sending the Note of the consultation with Counsel to Kenneth Dibble, I will re-emphasise the willingness of the CLA to share its members' experiences of the Guidance and to try to improve it.
3.3 I think we may need to involve the Better Regulation Executive (based in the Cabinet Office) and see whether they agree that the primary legislation and/or the CC's Guidance, though well intended, seems to add to administration without effectively addressing the culture in which the abuse of children or vulnerable people can thrive in a charitable organisation. A big question I know, but I have this nagging worry that we have seen this all before in the Dangerous Dogs Act - how often do you see a dog muzzled now?!
4. Action for CLA Members
CLA members are requested to let us know (via ) how they think that the Commission’s Guidance is working, whether there are difficulties in practice in obtaining CRB checks or in obtaining registration of new charities affected and whether there are any knock-on effects in terms of difficulty in recruiting trustees or poorer governance.
It is likely that we will have further meetings with the Commission on this subject, so members are encouraged to keep their comments short and, if possible, accompanied by practical examples of difficulties encountered in complying with the Guidance. Equally, if the Guidance is appropriate and in your opinion working well, do tell us.
Michael King
Stone King
3rd July 2006
