The current law
Under charity law, certain individuals are barred automatically from serving as charity trustees and senior managers in charities. This is why it is recommended practice to run checks before appointing charity trustees and senior managers, to confirm they are eligible for these roles.
This is not a complete list, but includes individuals that:
- have unspent convictions for dishonesty, money-laundering or terrorism offences
- are subject to notification requirements under Part 2 of the Sexual Offences Act 2003
- have been disqualified as a company director
- have been made bankrupt and not been discharged
- have been removed as a charity trustee or senior manager by the Charity Commission on the grounds of misconduct or mismanagement in the administration of their charity.
The Charity Commission also has legal powers to use its discretion to disqualify individuals in certain circumstances, by Order, for up to a maximum period of 15 years. This is based on a three-limb test. You can find details of the three limbs here.
The Charity Commission has produced guidance on its discretionary disqualification power here.
The Charity Commission does not need to have a statutory inquiry (formal investigation) open to use this power, and an individual can be disqualified whether or not they are currently serving as a charity trustee or senior manager. The Commission must give the individual at least one month’s notice of its intention to make a disqualification Order, and must notify the other trustees of the charity, if the individual is serving as a trustee.
A ‘waiver’ can be granted by the Charity Commission to allow someone to serve as a charity trustee or senior manager even if they have been automatically disqualified. This might be in relation to a specific charity or more generally. However, such waivers are very rarely granted as the Charity Commission’s default position is to refuse.
If a Commission Order is made to disqualify a charity trustee or senior manager, or a waiver is refused, the individual can appeal the decision to the First Tier Tribunal (General Regulatory Chamber). This can be a lengthy process with no guarantee of the outcome an individual is seeking.
To put this into context, over the last 10 years the Commission has made over 200 disqualification Orders. 16 appeals have proceeded to the Tribunal but the Commission’s decision to disqualify has been upheld in 14 of those cases.
It is an offence for an individual to act as a trustee or senior manager of a charity whilst they are disqualified.
What changes are proposed?
The Department for Digital, Culture, Media and Sport (DCMS) has launched a consultation on proposed changes to these rules. This is with the declared aim of tackling extremism and the risk this poses to charities and society at large.
The proposed changes include adding more criminal offences to the criteria for automatic disqualification, and extending the Charity Commission’s discretionary powers to remove charity trustees and senior managers.
Automatic disqualification
New offences would be added, which affect individuals with unspent convictions, for:
- ‘Hate crimes’ relating to stirring up racial hatred, religious hatred, or hatred on the grounds of sexual orientation under the Public Order Act 1986 and racial or religiously aggravated offences under the Crime and Disorder Act 1998.
- Specific National Security offences
- Supplying false or misleading information to the Charity Commission.
Further hate crimes are also expected to be added to this list, to include aggravated offences relating to transgender identity, sexual orientation, and disability, once the relevant sections of the Crime and Policing Act 2026 come into force.
Charity Commission discretionary powers
The Charity Commission’s powers to disqualify charity trustees and senior managers at their discretion would also be amended to add further ‘gateway’ conditions to the six already available, to include individuals who:
- have been deprived of British citizenship or excluded from the UK; or
- “engage in conduct or express views which promote or encourage (or would be reasonably likely to promote or encourage) violence, or hatred, against any group of people defined by reference to their race, or their religion or belief ”.
The Charity Commission could exercise its powers even if an individual has not been arrested, charged or convicted of any crime, as the criminal threshold would not need to be met. An individual that has been acquitted of a hate crime could also still be disqualified under the proposed new rules.
The three-limb test would continue to apply, so the Charity Commission would still need to conclude that an individual is unfit to serve in their role and that it is in the public interest to disqualify them in order to protect public trust and confidence in charities.
Other points to note
The new powers would apply to conduct or views expressed before the proposed change to the law has come into effect, and do not necessarily relate to activity undertaken in relation to the charity. This could potentially include an individual who has expressed views in the past for which they have since repented and where they have demonstrated a redeemed life through their subsequent conduct.
In relation to the changes to automatic disqualification, it is proposed that a 6-month ‘grace period’ would be given for existing convictions. This would allow anyone currently serving as a charity trustee or senior manager that would be affected by the new disqualification rules the opportunity to apply to the Charity Commission for a waiver. There would be no change to the existing framework for waivers, so we anticipate that the number of waivers granted will remain low.
Potential concerns for churches and Christian charities
The proposals could help protect charities and wider society from unlawful and harmful extremism.
At the Charity Commission’s October public meeting, its Chair Julia Unwin emphasised the importance of the Commission’s independence as well as charities’ freedom to engage in vigorous debate, even when others disapprove of their work. The DCMS consultation gives reasonable examples of when the proposed new powers could be useful. Our concern is how it might apply in more nuanced cases, particularly as public perceptions of ‘hateful’ views change.
Disagreement about faith, beliefs or lifestyles can be expressed honestly, compassionately and graciously. Many church and charity leaders already approach such matters with sensitivity and care (1 Peter 3:15).
However, the proposed powers are broad and could have significant unintended consequences for churches and Christian charities.
Those opposed to evangelical Christian beliefs might seek to use the rules to campaign for pastors and other Christian leaders to be removed from their roles in charities.
Applying the framework could also present practical challenges, particularly without additional safeguards. The proposals have been developed with the Charity Commission, and DCMS states that the aim is to make the Commission’s decisions more straightforward. Yet assessing whether conduct or views could reasonably be perceived as ‘hateful’ will be extremely difficult. The proposals put the Commission in a position of regulating free speech in the charity sector. There is also a question about whether the Commission’s existing powers already cover the harms that these proposals are seeking to address, and so whether some of the proposed changes are needed or justified.
Responding to the consultation
We are preparing our own submission to the consultation – which closes on 23 December – and encourage churches and other Christian organisations also to respond.
Further details of the proposed changes and how to response to the Consultation can be found here. This includes the link to an online form that respondents can use to submit their response to the consultation.