CHARITY LAW ASSOCIATION
CRIMINAL RECORD BUREAU CHECKS
CONSULTATION WITH COUNSEL
at the Chambers of Nicholas Purnell QC, 23 Essex Street, London on Friday 9th June at 4pm
Present: 23 Essex Street
Nicholas Purnell QC
Lesley Bates
Charity Commission
Kenneth Dibble
Rosie Chapman
Bates Wells & Braithwaite
Stephen Lloyd
Stone King
Michael King
Sarah White
This paper should be read in conjunction with Counsels’ Opinion dated 6th June 2006
1. General discussion
Prompted by Counsel, there was a general discussion pursuant to the Opinion which had already been circulated. NP asked whether the Commission could in fact refuse to register a charity in default of appropriate CRB checks on trustees.
MK – S1(4) Charities Act 1993 – the Commission may not take any step to run a charity unless opening a S8 Inquiry. Duty to register a charity – Commission cannot in theory halt registration if a charity satisfies the criteria of charity, but in practice the Commission uses ‘the gateway principle’ to check points in issue before registration.
KD said the Commission tried to employ a pragmatic compromise therefore they check all trustees who are in ‘regulated positions’ at the point of registration. General public need assurances. Deferring this check to a later date would be an administrative nightmare. Trustees are now on notice that CRB checks are required and so are their legal advisers.
Counsel - Charity Commission may be correct in law but question of proportionality arises. Commission could for example ask putative trustees, “Have you appointed an auditor etc?” CRB checks were a very small part of the whole process of recruitment and selection of charity trustees.
KD said the Commission had to respond to the general public’s concerns and that it is generally accepted that it is legitimate for the Commission to ask for further information if it is deemed to be in the public’s interest. RC said that “focus groups” carried out amongst existing charities, umbrella groups etc. revealed that these groups are broadly happy, though the CLA’s concerns are noted.
MK - The legal responsibilities of trustees are ever increasing – this is not a criticism of the Commission. However, it is very difficult to recruit charity trustees in the current climate of blame/liability etc. It would not be in line with the policy of encouraging volunteering to do anything to put people off becoming trustees.
MK gave the example of a new grant-making trust which was being established following the death of a headmaster. For fundraising reasons the putative trustees wished to register as quickly as possible and MK informed them that it was likely, because they were planning to give grants to children and might possibly visit the children at school to see how the money was being used, that the trustees would need to be CRB checked. In this instance, the trustees decided to reduce the initial number of trustees to 3 – all of whom were teachers and therefore had already been CRB checked. It was a way of working around the Commission’s requirement but was also a nonsense in terms of proper governance and had the potentially adverse effect of narrowing the available field of suitable trustees.
KD said that there were 3 points during the life of a charity when the Commission could step in and look at whether trustees have (if appropriate) been CRB checked:
1. On registration (‘the gateway principle’)
2. In investigations where the Commission are appointing trustees who are in a regulated position
3. On spot checks or Review Visits
Counsel asked whether the Commission had assessed the performance of the CRB before drafting the interim policy on CRB checks - can the other side of the equation fulfil the requirements of this policy? On average how long will these checks take? KD said the Commission had not consulted with the CRB before the launch of the interim policy. Counsel pointed out that with criminal cases there are often severe delays, to the evident infuriation of judges. SL said there is potential for a backlog of 3/6 months.
SL – As a regulator, might a delay in registering a charity be grounds for judicial review? Is this a reasonable requirement – might the failure of another part of government be an artificial bar to registration. KD said that it could, though there was no evidence of that yet.
MK - Is there a default position in exceptional circumstances? It was suggested that the Commission could register the new charity then give the trustees 6 months to provide CRB checks. KD/RC said that this would be very difficult for the Commission to administer. They would prefer to get checks up front on the gateway principle.
SL - There is a need for clarity as to what is a ‘children’s charity’. E.g. a charity providing internet services to children – trustees will not ever see a child but certainly will need to be CRB checked. What about museums or theatres? We need clarity in guidance from Commission. KD said that if in doubt, trustees should get a check.
Counsel - If there is a doubt people will get a CRB check because that is the way the charity sector works and trustees are likely to want to do the right thing, but that does not mean that the guidance is correct or proportionate or can be implemented within a reasonable time.
MK - There needs to be an emphasis on the fact that trustees must not simply think – ‘We’ve had the CRB checks done so we must be OK’ – that is a danger if there is over-emphatic concentration on CRB checks which after all are historic and cannot pick up all criminal propensities. Trustees must continue to monitor and have suitable recruitment and other policies/culture within the organisation This is what the Commission should concentrate on.
SL - Need to be clear in relation to guidance where it states “strongly advise” to identify whether this is this best practice or legal requirement.
2. Practical Suggestions for the Commission
Annual Report – the Commission could ask what is a charity’s CRB check policy in section re recruitment of trustees. Could one add requirement for information re: CRB check? SORP requirements - would this require consultation with the Accounting Standards Board?
Could Commission act as Agent for the CRB to check records? [ Counsel & KD said not without primary legislation.] Safeguarding Vulnerable Groups Bill – Commission may be appointed as a regulator under the Act when it comes into force. 2nd reading shortly. It was agreed by all that if the Commission were successful in being appointed as a regulator this should really deal with the problem.
Counsel raised the issue of Human Rights Act – an Article 8 issue re a regulator’s access to information. EU decisions indicate that there would be concern. Safeguards & transparency would be the key questions.
Counsel – maybe include a positive declaration as to lack of conviction/caution on DEC1 (perhaps combined with requirement for trustees to outline policies and confirm CRB checks will be carried out where applicable).
MK - DEC1 could state “We have applied for CRB checks for relevant trustees” with reference number included.
KD pointed out that, to his knowledge, only one prosecution has taken place due to misinformation on DEC1. Counsel pointed out however that the sanction resulting from positive declaration that later turned out to be false was criminal.
3. Further Consultation by the Commission
RC - Guidance on CRB checks may be revised following consultation (of which she acknowledged this was a part).
KD said that it would be useful to receive feedback from the CLA as to how interim guidance was working in practice. SL said that CLA have an email relationship with members and can quickly get views.
KD - Consultation may be delayed as a result of the introduction of the Safeguarding Vulnerable Groups Bill coming into force as an Act.
It has not been decided whether this consultation will be carried out at the Commission or externally. Either way RC said that she would ask the consultor to discuss with consultation with MK/SL as representatives of the CLA prior to consultation.
SEW
29th June 2006
