Given the circumstances, many charities coped admirably with the sudden shift, successfully addressing significant technological (and GDPR compliance) issues, and seeking to support the emotional wellbeing of their newly isolated employees and volunteers.
The lockdown affected not just the work of charity employees, but also the governance of charities, by making it impossible to hold face-to-face trustee meetings, or meetings of members, such as AGMs.
Subsequently, the easing of lockdown made some meetings possible again, but the new national lockdown announced over the weekend, together with the promise of ongoing regional tiered restrictions after that lockdown finishes, suggest continuing challenges for many charities for the foreseeable future in relation to face-to-face meetings.
Help from the Government for some charities, but not for all…
At the start of lockdown, the Government promised legislation to help charities that were companies, charitable community benefit societies (CBS) and charitable incorporated organisations (CIOs) to postpone AGMs and other members’ meetings, and to give flexibility in how members’ meetings were held during the pandemic – for example, by disapplying any requirement in a charitable company’s governing document for a physical meeting. This was eventually forthcoming in June, in the form of the Corporate Insolvency and Governance Act 2020 (CIGA).
Initially, its provisions were intended to last until the end of September, and the temporary change which allowed for the postponement of an AGM for a limited period of time did expire on 30 September. Subsequent regulations, however, extended the provisions giving greater flexibility in how members’ meetings may be held until 30 December 2020.
The new legislation, although helpful to charitable companies, CBS and CIOs, was not intended to assist a large number of charities, including:
- charities created by Royal Charter
- charities created by Act of Parliament
- charitable trusts and
- unincorporated charitable associations
which, it seemed, could only rely on the provisions of their governing documents in relation to meetings – and not all governing documents contain provisions to allow for virtual, or even telephonic, meetings.
Help from the Charity Commission
To address this problem, the Charity Commission issued guidance to charities on meetings during the pandemic, which is still regularly updated – most recently to explain the impact of the rule of six on charity meetings, but which will no doubt be updated further in the very near future in light of the Government’s weekend announcement.
The guidance highlights the use of the new legislation for the charities for which it is relevant, and states, in the context of possible postponement or cancellation of meetings, that where the legislation was not of assistance, charities should:
- check their governing document to see what is permitted
- consider amending the governing document to allow for virtual or telephonic meetings, and
- if all else fails, and virtual or socially distanced face-to-face meetings are not an option, so that such meetings need to be cancelled:
- to follow any rules in the governing document relating to postponement, adjournment or cancellation, and
- if there are no such rules, to record the reasons for the decision to demonstrate good governance of the charity.
It also states that in the absence of any provision in a charity’s governing document allowing for telephonic or digital meetings, if a charity decides to hold such meetings it will “understand”, but that, again, the charity should record the decision and that this had been done to demonstrate good governance of the charity.
What next for virtual meetings?
The Government has said that it will extend the provisions of CIGA relating to members’ meetings again if necessary, and, given the way that the coronavirus seems to be spreading again at present, that may well turn out to be necessary.
The Charity Commission has previously sought to assure the sector that its approach to regulation will be “as flexible and pragmatic as possible in the public interest” during this period of uncertainty, and it is to be hoped that this approach will continue for as long as the uncertainty continues.
There is no certainty, therefore, as to whether the provisions of CIGA will be extended again, or as to the timing of any change of approach by the Commission.
What should charities wanting to continue to meet virtually after the pandemic do?
Many charities have seen a substantial digital transformation during the pandemic, and the ability to hold virtual meetings has doubtless been invaluable for some.
It is also easy to envisage that the ability to hold virtual meetings may still prove valuable to many charities in the future – for example, by making membership of charity trustee boards more accessible to a wider group of people than pre-pandemic, perhaps.
Even if a face-to-face meeting is still to be preferred for a various reasons by some charities, it seems likely that many charities would prefer at least to retain the ability to choose whether to meet face-to-face or virtually.
Such charities, however, may not have suitable provisions in their governing documents to allow them to do so once these extraordinary circumstances, it is to be hoped, come to an end.
Any charity trustees wanting to retain the benefit of virtual meetings in the future, therefore, would be wise to check what is permitted by their charity’s governing document, and consider whether amendments may be desirable to ensure they retain the flexibility to meet virtually once the pandemic is over.
If you would like to speak to one of our Charities team about governance or data implications of virtual meetings, please do get in touch.