Summary

  • DCMS proposes a new discretionary condition under section 181A of the Charities Act 2011. It would reach conduct or views that promote, encourage, or are reasonably likely to promote or encourage violence or racial or religious hatred; the consultation says the conduct need not meet a criminal threshold.
  • A qualifying view would open the first door, not close the case. The Charity Commission would still have to establish that the person is unfit to serve and that an order is desirable in the public interest to protect trust and confidence in charities.

The criminal court is not the proposed gate

The draft regulations put a new phrase into an existing power. Under proposed Condition EB, the Charity Commission could consider a person who holds or has held a relevant charity office and has engaged in conduct or expressed views that promote or encourage violence or racial or religious hatred, or would be reasonably likely to do so.

The consultation says plainly that the conduct need not meet a criminal threshold. No conviction is required by this condition. That separates it from the draft’s other route: automatic disqualification for people convicted of specified offences. Condition EB is instead a new reason the Commission could begin the existing discretionary test in section 181A.

The draft reaches further than a person speaking from a charity lectern. The relevant offices include trustees and certain charity officers, agents and employees, as well as specified officers and employees of a corporate trustee. The conduct or views could come from a personal social-media account. They could have been expressed while the person held office or “at any other time.” The proposal is retrospective in that sense: a past statement could be considered after a person enters charity service and after the regulations come into force.

That breadth is the point of the proposal. DCMS says current powers can be resource-intensive and vulnerable to legal challenge or delay, and wants a more direct route for conduct it considers harmful to charities. The consultation gives examples such as sharing a campaigner’s personal details with a forum associated with intimidation or violence, or promoting hateful conspiracy theories about a racial or religious group. Those examples involve more than an unpopular opinion. The draft condition, however, does not set out a separate statutory definition of “promote,” “encourage” or “reasonably likely.”

One new condition, three separate findings

Condition EB would not itself disqualify anyone. It would satisfy only the first limb of the Commission’s three-part test. The regulator must also decide that the person is unfit to be a trustee and that making an order is desirable in the public interest to protect confidence in charities. Those are separate legal findings, not decorative phrases after a speech test.

The distinction matters because the draft brings very different evidence into one administrative process: a conviction certificate, a recorded sermon, a repost, witness testimony, a video, or material supplied by another regulator. Some evidence may be complete and attributable. Some may depend on context, editing, translation, audience, timing, or a disputed account of who controlled a page. The consultation does not make any one evidence type conclusive.

The Commission says a person’s conduct need not occur in their charity role. That makes the second limb do real work. A regulator would need to explain how the evidence bears on trustee fitness, rather than treating the existence of a troubling statement as the answer. It would also need to show why the person’s continued role creates a risk to the charity or the wider public confidence that the order is meant to protect.

The order can reach beyond one board seat. The Commission may set its duration, up to 15 years; limit it to a particular charity or class; or apply it across charities. It may also decide whether senior-management work is barred. The existing power can be used without a statutory inquiry and against someone who is no longer serving. That combination makes reasons, boundaries and duration part of the substance of the decision.

The draft promises a boundary in prose

The government says the change is not intended to capture mere offence or unpleasantness, stop legitimate debate or speakers, or interfere with lawful expression, protest and belief. Those statements matter. They sit beside a draft condition whose operative words still cover “views” and conduct that would be “reasonably likely” to promote or encourage the named harms.

The distinction between reassurance and rule is visible on the page. Condition EB contains no separate exception for debate, protest, unpopular belief, quotation, criticism of a religion or reporting on extremist material. The consultation points instead to the remaining statutory limbs, the Commission’s duties to act proportionately and consistently, public-law obligations, and the Human Rights Act 1998 and Equality Act 2010. Those controls can constrain the power, but they will do so through the Commission’s evidence and reasons, then through review.

A sound decision would have to distinguish advocacy from description, endorsement from reporting, and a genuine threat from a clipped phrase stripped of its setting. It would have to explain the audience, surrounding conduct, reliability of attribution, connection to the person’s office, and the actual route from the evidence to unfitness and public-interest necessity. The proposal leaves that work to case-by-case judgment.

Tribunal cases show why limb two cannot be skipped

The Commission reports more than 200 disqualification orders between 2016, when the power was introduced, and March 2026. Sixteen appeals reached a Tribunal hearing. Two orders were quashed. In one of those cases, the Tribunal accepted that the former trustee’s conduct could damage public confidence but held that this did not establish unfitness or make disqualification desirable in the public interest. In another, new evidence showed that a trustee had not known about misconduct because another trustee had deceived and concealed it. The Tribunal also shortened two periods and excluded senior-management roles in another case.

Those decisions are a useful stress test for the new condition. The Commission already has a condition for conduct it regards as damaging to charity trust. Its own account of the Tribunal record shows that damaging conduct does not settle whether a person is unfit or whether the proposed remedy is justified. Proposed Condition EB may make the first finding easier to reach; the second and third must remain independent.

The safeguards are procedural as well as substantive. The Commission must give the person at least one month’s notice and invite representations. If the person is a trustee, the other trustees must also be notified. The public is usually given notice and an opportunity to comment, commonly for a month, unless the Commission decides public notice is unnecessary. An order can be appealed to the Tribunal and does not take effect before the appeal period ends or an appeal is resolved. The Commission may suspend a trustee while representations are being gathered, which makes the quality and speed of that interim decision matter too.

The consultation asks for a rule before the cases arrive

The consultation is open in England and Wales until 5pm on 23 December 2026. A consultation gives charities, trustees, lawyers, campaigners and the public a route to make submissions. It does not give each respondent a veto or transfer the decision to the people who attend. Parliament must approve the regulations; the Commission would then exercise the order-making power under the statutory test, and the Tribunal would review challenged decisions.

That chain assigns participation and authority to different stages. The public can supply examples and objections; both Houses decide whether to approve the regulations. The Commission must justify an order in an individual case, and the Tribunal can correct a failed application. A consultation response is evidence for lawmakers. The operative boundary will be the text Parliament approves and the reasons the regulator publishes afterward.

The draft’s explanatory note says a full impact assessment was not produced because no or no significant impact on the private, voluntary or public sectors was foreseen. DCMS says the Commission is already handling a number of cases that may fit the proposed condition, but gives no count or forecast of how many future cases will use it and no measure of whether trustees will change lawful speech. The Commission’s first published decisions, if the condition is adopted, would change that assessment.

The decisive drafting question is how the regulator must prove that a contested view makes a particular person unfit, and why disqualification is the right public-interest response. Put those steps in the regulation or make their application visible in every reasoned order. Otherwise the legal limit will be carried by assurances written beside the power rather than by a boundary readers can inspect.

What to watch next

The final text should be checked for three things: whether the “reasonably likely” limb stays unchanged; whether the consultation’s protections for legitimate debate become operative wording or remain explanatory prose; and whether the Commission commits to publish anonymised reasons, evidence categories, order scope and duration, and appeal outcomes. In use, watch how often the regulator relies on personal speech, material from outside a charity role, older conduct, and evidence that never produced a criminal charge.

The new condition could help the Commission act before conduct becomes a criminal case. It also gives a regulator a powerful professional consequence over speech without that criminal finding. The three limbs, public reasons and Tribunal review are where the law must earn the discretion the draft seeks.

Sources: DCMS consultation; draft 2026 Regulations; Charities Act 2011, section 181A.