This guidance is an interesting read, and one has to assume that the Commission is restating the importance of the separation between the management and application of charitable funds and the actual day to day business of the organization, including management of the beneficiaries. What else?
But I am struggling to assimilate this guidance into what we have been handed by the RAFAC in the current ACP11. One can reflect that current Charity legislation was enacted in 2011, the RAFAC revised ACP11 in 2014/5, and now this guidance four years later.
Might we expect some further adjustment by 2023? especially as the Commission appears to be alerting Trustees to compliance issues.
The Commission is saying that Trustees should manage their relationship with a non-charity, and it is very clear within this context, that non-charity means the RAFAC or even the MOD; in effect the non-charity would be anything or anyone who is not actually a legally appointed member of the Charity in question, and who might therefore influence the control and judgement of charity management, such that Trustees are unable to properly conform to the Law.
I am not aware of any consultation between the non –charity and Squadron Trustees, which led to the revision of ACP11. One Wing Chair answered a question as to whether the review was about compliance with a comment such as ‘Something like that. In my books it either is or it is not – no halfway house.
Any of us who have been around for any length of time, and who are versed in compliance, will be aware there was never any issues of compliance raised, and certainly nothing raised by the Commission which was passed down to ATC Sqn Trustees. So if the understanding of Trustee duties was there in 2011 and the situation was not changed by the 2011 Act, one is entitled to ask what is going on.
Strangely the review of ACP11 is coincident with the change of CAC and the creation of the ACMB (which no-one has yet ventured to explain what it actually does).
And that is where the problem seems to lie, and why it is difficult to relate what the Commission is saying. We have a revised ACP11 agreed by the ACMB, which has been using Wing Chairs to get Squadron Trustees to sign adoption. Now excuse me, but I always thought that as a Trustee, one had to make a collective vote; it was not a matter for individual or hierarchical discretion. It is also inappropriate to expect a fair assessment to be made, rior to any formal decision, without any basis or explanation of what has changed. So effectively we have situation where by the ACMB (acting as the non-charity) expects everyone to accept something which lacks clarity. ACP11 and the constitution are themselves supposed to be legally sufficient, but there is an absence of reference to any form of legal consultation.
You then have the matter of Form 60. The Law does not require an Excepted Charity to make an annual return, and yet we appear to have certain individuals (within the non-charity) saying that failure to complete Form 60 could jeopardise charitable status. That is rather strange when both the Commission and the OSCR appear to have made public statements to the effect that they have no agreements in place with RAFAC (ATC) over Form 60 or anything else.
There is also the threat of withholding release of charitable funds which originate with the GPF. So you then have the ACMB determining the use of GPF monies, (bearing in mind the CAC is Chair of the ACMB and Chair of the GPF Trustees) by exercising control over Trustees to ensure they receive their allocation. The release of these monies is initially to the Wing fund, but release to squadrons is authorized by the WExO (a member of the non-charity) and if release is not authorized, the monies remain in the Wing fund and do not then serve the stated purpose of the GPF release.
But the most significant part, to which attention has not been drawn, is the trans morphing of the Resolution of Disputes procedure into a Disciplinary Procedure. Internally Charities are required to manage their own affairs, but this Disciplinary Procedure goes beyond that, it is initiated by someone outside of the Charity, who is not appointed by the Trustees. When it progresses to Regional level you then find Chairs who sit comfortable alongside the Uniforms on the ACMB, which then means that the Appeal Panel is also effectively chaired from within the ACMB. - No impartiality.
So how may I ask, are Trustees supposed to manage their relationship with the RAFAC, when effectively all aspects of control appear to be in the hands of the ACMB. I presume it is expected they become as with Wing Chair, simple puppets.
HM Treasury is concerned to ensure effective management of funds, and as Civcoms are concerned with non public funds i.e. monies not raised and applied by the State, it is a little incongruous that the non-charity should seek to undermine the basic principles of charity law and effectively control non-public funds, despite the Treasury which apply to individuals within the public sector. .
Reading the guidance further you come to Whistleblowing. The Chief Exec of the Commission has gone on record as stating the importance of having whistleblowers. This bold attempt to placate the voluntary sector follows a study, which has revealed widespread bullying and intimidation within that sector. Statutory protection does exist, but is of questionable merit .
However whatever the Commission believes, seems to be at variance with the perception projected by ACP11 —effectively if the removal of Trustee rights is indeed behind the latest version of ACP11, there ceases to be any deterrent to the bullying of Trustees.
The conclusion to all this interesting guidance, is that the review of ACP11 was anything but about compliance, because it has moved completely away from the compliant position we once had – it has identified the legal entity by name i.e. Squadron Association, but as every ATC Charity is an unincorporated association, it is notable that there is no association entity at Wing or Region, even though it should .
This all helps compound the conclusion that the ACMB has set out to achieve some sort of authority, which it cannot derive from Charity Law, and we are then to be grateful to the Charity Commission for alerting ATC Trustees to the duff hand we are being dealt.
Ultimately if it is not sorted , it will impact on the willingness of volunteers, although I think that may have already started.