In recent weeks, the work of the Charity Commission (CC) and its involvement with the Christ Church Oxford saga has been explored on this blog. I do not propose to go back over what I have said in earlier posts. Nevertheless, I want to repeat one point that I made on the 28thJanuary. When a dispute arises between the CC and a registered charity under its supervision in the UK, the CC and its decisions have considerable legal force. Recently the CC has published an account of their involvement with a Sikh charity in London. This clearly sets out how the CC works to intervene when a religious charity is unable or unwilling to conduct its affairs in a way that satisfies charity law. The religious charity involved is the Central Gurdwara, the most prominent Sikh temple in London. The process of intervention by the CCs has lasted several years but it has finally been resolved by some decisive actions by the CC. This has brought to an end a number of failures of governance which involved money and other administrative lapses. The story of the CC’s involvement with this charity is an instructive one, since it shows a dogged determination by the CC to put things right and insist that charity law is observed and enforced. Charity law in Britain is not like a voluntary code. It is part of English law backed up and enforced by the civil authorities of our nation.
The charitable aims and objects of the Central Gurdwara are the maintenance of the building and the advancement of education for members of the Sikh community. The problems that were raised and brought the charity to the attention of the CC in 2012 centred round some disputes among the trustees. These made it difficult for the smooth operation and management of the institution. The CC seem to have a well-established process for these eventualities and these protocols have been in operation from December 2012 right up to the present report in March 2021. The CC obviously are using their own terminology to describe these stages in putting things in order, and, even though it is not absolutely clear to a layman what each part of the process involves, we get the sense of a well-oiled and efficient scheme at work. The first stage was the ‘opening of an operational compliance case’ in 2012. The next stage was the issuing of an action plan in February 2014. In July 2014, the CC opened a ‘monitoring case’ to find out whether the trustees were implementing the action plan. The monitoring case had determined by July 2015 that a statutory inquiry under section 46 of the Charity Act was required. This was to examine the compliance with the action plan, the financial regulation of the charity and whether there had been misconduct by the trustees. By March 2016 the CC had determined that there were serious problems. The trustees were issued with a Direction to provide evidence and copies of documents which could be examined to see whether promised improvements of the Charity were in hand. One sticking point at this stage proved to be an issue over defining membership. Members of the Temple alone had the power to elect trustees and because there was some vagueness and uncertainty in this area, the process of finding legal trustees was made impossible.
In January 2017, the CC decided that it was necessary to intervene and appoint an Interim Manager (IM). He would have the legal authority to determine on the difficult task of membership so that valid elections would be able to take place. The main problem encountered by the IM was the continuing disruptive behaviour by existing trustees. It was determined that the appointment of 15 brand new trustees was the only way that future governance could be set in place and respected by all parties. This process of electing the new trustees was overseen by an independent specialist company for managing ballots and elections. These took place in March 2020. The three candidates who had received the highest votes were appointed President, Vice President and General Secretary respectively.
The conclusions of the CC inquiry have considerable interest to those of us who look to the CC to provide stability to the charity sector and in our case, religious charities. One statement that caught my attention was one that stated ‘the former trustees failed to resolve their differences and implement the guidance. This amounted to misconduct…’ A further statement gave the new trustees the option to ‘recover any money lost due to breach of trust/duty by the former trustees. The IM had clearly had a difficult task. The report recorded that he had met personally expenses of £33,791 which had not been charged to the charity.
The final section of this Report about the affair reminds the reader of the responsibilities of charity trustees. One would like to see these printed and given to every single individual who takes on this role, PCC members and college governing bodies alike. It is worth reproducing seven principles that are recognised by the courts when reviewing the conduct and decisions of charity trustees. These principles are as follows. Trustees must
- act within their powers
- act in good faith and only in the interests of the charity
- make sure they are sufficiently informed
- take account of all relevant factors
- ignore any irrelevant factors
- manage any conflicts of interest
- make decisions that are within the range of decisions that a reasonable trustee body could make
Of these seven principles one would like to be able to say that they are always listened to by charitable bodies we know. Acting in the interest of the charity will always require that other issues, like personal vendettas, be put to one side. Conflicts of interest are again common in some areas of church life we have been looking at over the past weeks and months. It is indeed helpful to have these reminders of good practice for charity trustees of all kinds of charity. It is also good to have a reminder that good practice is not only recommended; it has the full force of the English legal system to back it up and enforce it. The Church of England has managed to avoid some of the requirements of law by being able to claim special exemptions. Thus, it has been allowed to avoid some of the stipulations of the Equality Act 2010. It can, in some situations, discriminate against women and sexual minorities. How much longer these exemptions will be tolerated by society is an open question. One can imagine that eventually the laws of the land will be the same for every institution, including the Church, and the laws which tolerate deliberate acts of exclusion will be swept away.
One institution that is currently attracting the attention the CC is of course Christ Church Oxford. Even at a distance it is possible to discern that there exist breaches of several of the seven principles of good charity trusteeship. I hardly need to repeat all the ways that personal animosities seem to have started to interfere with the trustees’ work. Animosity and the process of governance have become entangled. Another of the principles of good governance is that trustees should be well informed. The censors at the heart of the dispute with the Dean have done little to assist this process when they forbade the Andrew Smith report being distributed among their fellow trustees. The lack of openness in this action does not fill one with confidence that whoever is chosen to ratify the Governors’ actions will find the Christ Church trustees acting in acting in ‘good faith and only in the interests of the charity’.
My final comment is this. If I, as a non-lawyer, can spot several obvious flaws in the way matters have been handled at the College, it is surely clear that a legally trained person, well versed in charity law will also see these same failures of good practice. The College is going to be judged by the protocols of charity law which does not make any exemptions or concessions. The Central Gurdwara in London was not able to argue against the right of the British State to demand just and fair practice as is laid down by the laws of the land which operate to oversee charities. Christ Church College may be able to employ the best (and most expensive) lawyers in the land. Even with this power, it will not be able to stand against the power of the courts and its judges if it is found to have betrayed its charitable aims. At present it is hard to claim that the trustees of Christ Church are fulfilling and acting in accordance with the terms of their trust.
I was a trustee of a charity some years ago, and I recall that on my appointment I received a document (hard-copy in those days) produced by the Charity Commission setting out quite precisely the duties of a trustee in the proper governance and management of the charity.
Having just checked the Charity Commission website, this is still available: document CC3 which unequivocally says this:
“You should read this guidance if you are a trustee of any charity based in England or Wales, including:
a registered charity
a charity that is not required by law to register
a charity that is required to register, but has not yet done so.”
The second requirement is a reminder that all charities, including those which are not required to register (or equally have neglected to register) are fully subject to charity law.
When I brought to the attention of the trustees of a diocese the limitations in the application of its own complaints procedure, only a few acknowledged receipt of my letter and then rejected my objections without stating reasons. When I took this to the CC, the reply was that they were only interested in financial mismanagement. I then took the issue to our local MP, since both the CC and the C of E are accountable to Parliament, but she was not interested in taking up the issue. This seems to limit the effectiveness of the CC to protect the public from abuse.