«Introduction This document sets out Unlocks response to proposed reforms detailed in a consultation paper which was launched by the Government on the ...»
People with convictions as trustees
A consultation response
This document sets out Unlocks response to proposed reforms detailed in a consultation paper which was
launched by the Government on the 4th December 2013.
As a charity that exists to support the efforts of people with convictions in moving on positively with their
lives, and as an organisation which itself has sought to recruit trustees who themselves have convictions,
we are concerned about the potential impact of these proposals, as well as being concerned about how the current system operates.
There is a common theme that runs throughout our response – our aim is to ensure that the processes of the Charity Commission work in a way which allows charities the freedom to recruit people as trustees who have unspent convictions, where the charity believes that the individual can fulfil their obligations as a trustee and the charity can show it has taken reasonable steps to protect the interests of the charity.
Evidence from others In addition to drawing on our own experience as an organisation, and the individuals that we’ve worked with, we sought to raise awareness of this consultation amongst organisations that we know keen to have people with convictions involved at a management level within their organisations. In particular, we have worked with Clinks, which is a charity that supports voluntary organisations that work with offenders and their families.
As well as encouraging responses from other organisations, we have included in our response anonymous extracts from the responses that we received, in order to raise awareness of the concerns of other organisations.
1 of 16 © Unlock, Charity No 1079046 and Company No 3791535 The importance of ‘user involvement’ Issues People with convictions play an important role in many charities, particularly those working in the criminal justice system. Becoming a trustee is an important voluntary role that people with convictions can take on which provides a positive pro-social identity.
Unfortunately, people with convictions regularly experience many barriers in their way when seeking to move on with their lives, and we believe that the proposed changes will be seen as yet another door being closed to them. Although this may only be a perception, rather than a reality, this points to an important issue, which the Charity Commission needs to be aware of.
“We’ve yet to submit for a CC waiver but have a candidate who plans on doing so – and who I think is also quite fearful of the process too.” Charity representative Many people with convictions have experienced a great deal of rejection in their lives. For charities that are seeking to engage positively with individuals as potential trustees, discussions about ‘disqualifications’ and ‘waivers’ have the risk of damaging what should otherwise be the beginning of apositive relationship.
The idea of facing further rejection results in capable individuals choosing to not put themselves forward.
“I am very concerned about what they are proposing for people with convictions that will be covered. I think that many people make mistakes in their lives and should be able to move on, and be able to participate fully in society – this is not good news for charities either particularly small local charities which struggle to find trustees and will definitely put people off from getting involved – having a conviction and having to tell people about what happened feels like I can never move on, It’s like being in a modern day version of the stocks where people can mock you and look down on you for the crime that you committed – the difference is that there is no end to it and it is for the rest of your life – how can this be good for society?” Individual with convictions There is increasing recognition that charities should ‘practice what they preach’. Becoming part of a charity’s board of trustees is the pinnacle of this. This was recognised in the review of the Charities Act 2006, ‘Trusted and Independent: Giving charity back to charities’.
2 of 16 © Unlock, Charity No 1079046 and Company No 3791535 "At the heart of the voluntary sector is the idea that we work with service users, rather than doing things to them. This is no less important with offenders than with any other group. In fact, it is arguably more important, given the level of formal and informal exclusion offenders already face.
Any unnecessary barriers to the recruitment of people with unspent convictions as trustees and in senior positions is a serious threat to the core mission of our sector. At a time when many are working to promote the value of service user involvement, including to potential new providers as rehabilitation reforms get underway, it would undermine our ability to practise what we preach.
Clinks therefore joins the calls on the Charity Commission to engage with organisations with direct experience of the challenges caused by the current rules before it considers any further restrictions." Clive Martin, Clinks “We had someone stand to become a trustee at our last AGM who may well have had unspent convictions, unfortunately he didn't take up the position for unrelated reasons but we'd have been loath to not be able to accept him on these grounds. We've had a few people stand for our board who have been victims and I have no doubt that in time we'll have people who would want to stand who have received custodial sentences of 2.5 years or more - perhaps for burglary or other 'dishonesty' crime. The law as it currently stands already feels restrictive.” Charity representative
The Charity Commission should provide practical guidance to individuals and organisations which promotes the involvement of people with convictions as trustees, subject to the charity demonstrating to the commission that they’ve taken reasonable steps in their recruitment process.
The Charity Commission should look to provide positive details about individuals who have become trustees despite their unspent convictions (both specific cases and anonymously, depending on the individual case).
3 of 16 © Unlock, Charity No 1079046 and Company No 3791535 The role of charities and the Charity Commission Issues We understand the need for the Charity Commission to effectively regulate the charity sector. However, on this particular issue, we believe that the Commission should be acting as an enabling body, working to ensure that it’s policies and practices enable charities the freedom to take informed decisions.
The current consultation is aimed at ‘strengthening the Charity Commission’s powers to act where there is abuse of a charity’ and plans to broaden the groups disqualified due to their convictions – this assumes that people with unspent convictions are more likely to abuse a charity. There is no evidence to statistically reliable evidence to suggest that this is the case, with the examples given in the consultation being little more than anecdotal examples.
This consultation suggests an increasingly regulatory approach, which would reduce the freedom of charities to recruit people with unspent convictions even where they can show that they have taken reasonable steps to respond to any risks that an individual’s unspent convictions may present.
Many charities (particularly in the criminal justice sector) understand people with convictions. It is common practice for charities to have policies in place for managing risks related to this group.
In terms of its approach, we believe that the Charity Commission should hand power back to charities to self-regulate its board, with the Commission instead focusing its limited resources on ensuring that charities can demonstrate that they are have taken appropriate steps to safeguard the organisation. For example, this may involve the organisation having processes around the disclosure of relevant unspent convictions, and a risk assessment process which considers any relevance to the particular organisation, and steps that the organisation decided to take to mitigate against any risks. This would enable responsible charities to achieve the right balance between involving people with convictions and protecting the interests of the charity.
“I used to be a trustee and somebody with convictions applied to be a trustee and was rejected because of the nature of her offence. It was a real shame as she could have made a really valuable contribution. I think they checked with the Charity Commission and withdrew the application at that point.” Former trustee of a charity 4 of 16 © Unlock, Charity No 1079046 and Company No 3791535 Unlock was recently contacted by somebody who had served as a trustee of another organisation for many years. They had previously received a 7 year prison sentence for dishonesty, but had nevertheless fulfilled their obligations as a trustee. This was the first time they’d heard of this issue, and understandably were concerned as to whether this would impact on their position as a trustee.
“The experience I had with the Charity Commission meant that the charity that I was approached by to become one of their trustees decided against it in the end. The major problem I and the charities company secretary was because the Charity Commission were so un-helpful with the questions we raised they kept on going round and round in circles and getting nowhere. It seems as if they actually didn't know the rules themselves.” Person with unspent convictions Recommendations The Charity Commission should hand power back to charities to self-regulate its board, with the Commission instead focusing its limited resources on ensuring that charities can demonstrate that they have taken appropriate steps to safeguard the organisation.
5 of 16 © Unlock, Charity No 1079046 and Company No 3791535 The list of offences Issues The current range of ‘disqualifying’ offences (i.e. ‘dishonesty or deception’) includes a wide range of common offences such as theft, fraud, benefit fraud, burglary, robbery, obtaining property by deception and handling stolen goods.
The list of offences as it stands today is already very broad, and involves a number of offences which, in many specific circumstances, are arguably not directly linked to the role of becoming a trustee. There is also much confusion (and a lack of clear guidance) as to what the Charity Commission regard as involving ‘dishonesty or deception’. The proposed extension will potentially include a significant number of further offences which may not be specifically relevant to a persons’ ability to perform the role of trustee.
Sadly, too often we see a professional regulators approach criminal convictions in a blunt and unsophisticated way. However, one approach which seems to work well is the approach of the Security Industry Authority. Their ‘Get licensed’ booklet sets out their policy in some detail (see http://www.sia.homeoffice.gov.uk/Documents/licensing/sia_get_licensed.pdf) and they have an online ‘criminal record indicator’ tool that enables people to work out how their application is likely to be treated (see http://www.sia.homeoffice.gov.uk/Pages/criminal-record-indicator.aspx).
“I’ve got various convictions for drugs offences. I was dishonest by committing a crime, so does that count as a dishonesty conviction? I’ve contacted the Charity Commission, but they wouldn’t give me any advice” Person with unspent convictions Recommendations The Charity Commission should provide practical guidance on what constitutes ‘dishonesty or deception’ and be in a position to respond specifically to individual queries from individuals and charities.
The Charity Commission should develop a more sophisticated way of dealing with convictions so that they only take into account unspent convictions that are directly relevant to the role of a trustee, 6 of 16 © Unlock, Charity No 1079046 and Company No 3791535 A charities’ governing documents Issues If disqualified, an individual can apply for a waiver from the Charity Commission, with the support of the particular charity concerned. Unfortunately, many charities’ own governing documents include a standard provision (which the Charity Commission itself includes in its ‘model articles of association’) which stops the Charity Commission waiver process having any practical effect, which means that the Charity Commission will refuse to consider an application for a waiver. The specific provision of the template is
“39 A director shall cease to hold office if he or she (2) is disqualified from acting as a trustee by virtue of sections 178 and 179 of the Charities Act 2011 (or any statutory re-enactment or modification of those provisions);” Section 178 relates to being disqualified as a result of unspent convictions for dishonesty/deception.
In Unlock’s own case, the Charity Commissions’ view was that our articles (which were similar to the above) didn’t allow for their waiver to have any practical effect. Although we disagreed with this interpretation, we were required to amend our articles before the Charity Commission would consider an application for a waiver. Since that point, many charities that have sought our advice on recruiting trustees with unspent convictions have discovered that they have similar provisions in their governing documents.
“Our Articles preclude appointment “if s/he is disqualified under Charities Act 1993 from acting as a trustee.” This is a reference to S 72 (1) (a); of that Act; but subsection 72(2) states that this provision is not to apply to a spent conviction.” Chairman of a charity “None of our trustees have convictions. However we are contemplating the possibility of inviting an individual with conviction and currently under licence whom we consider would add immense strength to the team. Our governing documents contain clause 39 which refers to “disqualification from acting as a trustee by virtue of section 72 of the Charities Act 1993(or any statutory reenactment or modification of that provision)”. I understand this provision will deny us the opportunity of considering appointing an individual with strengths which would add significantly to the effectiveness of the charity.” Chief Executive of a charity 7 of 16 © Unlock, Charity No 1079046 and Company No 3791535 “We currently do not have any board members who have criminal convictions. However, we have two candidates who we would like to appoint to the board, both of who have un-spent convictions.