Managing charity trustees involved in controversial issues: Lessons from the Defend Our Juries Case

Key challenges: Blurring lines between personal and trustee actions

However morally justified, an action taken by an individual trustee may be seen as the action of the board itself. The case of Mond, which we considered earlier this year, highlighted the extent to which the actions of a charity trustee may be considered to damage the reputation of the charity, or indeed public trust or confidence in charities generally. In cases such as the Defend Our Juries protest, where a trustee is arrested (or is involved in a controversial issue), the Charity Commission may take the view that the trustee’s conduct or public stance reflects the position of the charity as a whole. This reputational risk means that what at first appears to be a personal act of conscience can, in the eyes of the public or regulators, become a governance issue for the entire organisation.

The Charity Commission’s guidance on divisive issues

In its guidance on "Engaging with Controversial or Divisive Issues", the Commission recognises that charities can (and often must) engage with contentious issues, but it expects trustees to act thoughtfully, lawfully, and with sensitivity to the diversity of public opinion. The Commission is unlikely to intervene if trustees can demonstrate that their actions "are driven, not by the background, world view or political inclinations and interests of their leaders, but by their mission and purpose, and by the needs of the people or causes they serve" and that these decisions are reasonable, evidenced, recorded and explained.

Although the Commission will not dictate specific actions, it expects trustees to carefully assess the risks involved and ensure their responses are proportional. However, if a trustee's actions appear to align the charity with a political or partisan stance, or if the board fails to show it has appropriately managed the associated risks, the Commission may subject the charity to further scrutiny.

Responding to a trustee’s involvement in controversial issues

When a trustee becomes involved in a divisive issue, the board must respond calmly, objectively, and proportionately. Involvement in a controversy, including an arrest, does not automatically imply wrongdoing or disqualify a trustee. The board’s role is to assess the situation carefully and determine whether it materially affects the trustee’s ability to serve or poses risks to the charity’s reputation or operations.

A fair assessment process might consider:

Reputation and public perception: the board should evaluate the potential impact on the charity’s public image. This includes determining whether the trustee’s actions align with the charity’s values and assessing how to manage communications with stakeholders in a way that preserves trust and transparency.
Legal and regulatory risks: the board must carefully consider any legal or compliance risks arising from the trustee’s involvement. This includes the possibility of criminal charges and the risk of regulatory scrutiny. Understanding the legal implications will help the board determine whether the charity could be exposed to legal or reputational harm.
Impact on the trustee's role: the board should assess whether the trustee’s actions affect their capacity to carry out their duties effectively. If the trustee’s role is compromised, the board may need to explore options such as reassigning responsibilities or requesting the trustee’s resignation.
Governing documents and policies: the board should refer to the charity’s governing documents and internal policies for guidance on handling such situations. Any decisions made must be in line with the charity’s rules on conflicts of interest, trustee duties, and the handling of trustee misconduct.
Fairness and due process: the board must respect the trustee’s rights and privacy, allowing them time to explain their actions. Any decisions taken should be based on a fair and transparent process.

If, after careful consideration, the board concludes that the trustee’s continued involvement poses a serious risk to the charity’s reputation or functioning, removal may be appropriate under the governing document or, in serious cases, via the Charity Commission under section 80 of the Charities Act 2011. However, removal should be a last resort, applied only after fair and proportionate assessment.

Practical steps for charity boards

Given the complexities surrounding a trustee’s involvement in divisive issues - even in situations where no public controversy or arrest has occurred - it is essential for charity boards to take proactive, practical steps to prepare for and address potential challenges. By establishing a clear and structured framework, boards can ensure that decisions are made thoughtfully, align with the charity’s values, and comply with legal and regulatory requirements.

Below are some key steps to help guide this process effectively:

Develop clear policies and procedures

A charity should have comprehensive internal policies governing trustee conduct, including guidance on what to do if a trustee plans to engage in controversial activity, whether or not risking arrest. These policies should reflect the charity’s mission and values and set clear expectations for trustee behaviour in both professional and personal capacities. The process of developing such policies can be as valuable as the context of the policy itself, because it provides a means to secure the 'buy-in' of all board members and to explore areas where trustees hold opposing views.

Provide ongoing training and guidance

Trustees should receive regular training on their legal responsibilities and the potential implications of their actions, including the governance and regulatory issues addressed above. Refreshing this knowledge ensures that trustees are aware of the charity’s governance framework and relevant regulatory developments, have the opportunity to discuss developing public debates, and are equipped to handle difficult situations appropriately.

Implement regular risk assessments

Conducting regular risk assessments to evaluate the potential impact of trustees’ actions is key. These assessments should take into account both reputational and legal risks, considering the personal actions of trustees outside of their charity roles. By identifying and managing risks before they materialise, the board can take pre-emptive action to protect the charity.

Create a crisis management plan

Establishing a comprehensive crisis management plan is an essential step for charity boards to prepare for unexpected challenges, whether they involve a trustee’s arrest, involvement in a divisive issue, or any other significant incident. A well-thought-out plan ensures the board can respond promptly and effectively, minimising potential risks to the charity.

Conclusion

The arrest of a charity trustee, as seen in the Defend Our Juries case, highlights the challenges charity boards can face when trustees become involved in divisive issues. Even when an arrest is not involved, such situations can present significant governance and reputational risks. Boards must carefully balance the need to uphold the charity’s values, protect its reputation, and comply with legal obligations, while also respecting the trustee’s rights and ensuring fair and transparent decision-making.

By preparing for these scenarios, charity boards can strengthen governance and build resilience to potential risks. Practical measures include establishing a clear and structured framework, implementing robust policies, providing regular training, conducting risk assessments, and preparing a comprehensive crisis management plan.

Ultimately, by fostering a culture of accountability, transparency, and preparedness, charity boards can effectively manage divisive situations and maintain public trust, ensuring the charity remains focused on its mission and continues to deliver its charitable purpose with integrity.