Actions and reactions – Supporting members and developing BISA within the constraints of the Charities Act

Following nine years in various roles on the BISA board of trustees, outgoing Chair, Professor Kyle Grayson, reflects on how the Charities Act places specific demands on professional associations that are registered charities - which generates constraints and challenges.

Many of the current challenges facing professional associations will already be familiar to colleagues - including the ongoing financial crisis brought about through declining income streams, and capacity issues that arise from boards comprised of unremunerated volunteers with demanding day jobs and personal responsibilities. What may be less well known, are the very real constraints that come with being a professional association that is also a registered charity. 

As a charity, with a charitable remit to advance and develop international studies in the UK and beyond, BISA and its trustees must adhere to legal responsibilities and restrictions imposed by the Charities Act 2011 and subsequent amendments. According to the Charities Act, the six key duties of trustees are to:

1. Ensure that their charity is operating for the public benefit
2. Comply with governing documents and the law
3. Act in the Charity’s best interest, including what will best enable the charity to carry out its purposes in the short and longer terms
4. Manage charitable resources responsibly
5. Act with reasonable care and skill
6. Ensure their charity is accountable, including complying with the law, being well run, and effective in pursuit of its charitable remit.

Failure to comply with these duties can lead to personal liabilities if a failure causes financial loss (by acting improperly) and/or results in a legal claim against the charity which cannot be met. 

These duties, show that trustees have clear responsibilities to engage in good governance - including ensuring that assets are only used to support or carry out a charity’s purposes, no inappropriate risks are taken with the charity’s assets or reputation, and that the charity does not over-commit itself.

Furthermore, the Charities Act 2011 places significant limits on the political activity and campaigning that can be undertaken by charities, restricting efforts to actions that support the delivery of a charity’s remit. Recognising the very real risks of falling afoul of these restrictions, as well as the range of statements that members ask of BISA on a regular basis, BISA developed guidance on when it can engage in political campaigning and lobbying. This is worth reading. The statement reflects the duty of trustees to manage BISA responsibly by ensuring that BISA:

1. Undertakes activity that furthers its charitable purpose and is in its best interests
2. Remains independent of party-political bias
3. Is confident that in any political activity it undertakes, the benefits outweigh the risks
4. Considers any associated risks of political activity, and seeks out legal advice as appropriate
5. Complies with all other laws that may apply, including slander and libel.

In taking these duties and responsibilities seriously (including the personal liabilities assumed by trustees), BISA must continue to be selective about its campaigning, and frame campaigns in relation to its charitable remit. This does not mean BISA must remain silent. Previously BISA has made public statements about academic freedom, Gaza, campus demonstrations, and the financial crisis in higher education but has done so in ways that satisfy its charitable duties alongside the need to speak to issues of importance to the international studies community.

Charitable duties and restrictions also mean there are campaigns and lobbying that BISA will not undertake because: they fall outside of the charitable remit; and/or do not align with BISA’s best interests as a charity; and/or are not independent of other political agendas; and/or would require levels of due diligence we cannot assume; and/or raise existential risks to the future sustainability of BISA by imposing additional costs (e.g. legal advice required to undertake due diligence) and diverting limited capacity to fulfil BISA’s charitable remit. This is why recent calls for BISA to formally adopt explicit political positions like Boycott, Divest, and Sanction (BDS) place the Association and its trustees in an impossible position.

Given BISA’s charitable remit, it is not an appropriate vehicle for BDS or any other political campaign by the very terms of the Charities Act and the duties of trustees. Formally declaring adherence to BDS or any other political campaign would likely require, at a minimum, securing legal advice, changes to BISA’s charitable remit, rewriting BISA’s statutes to reflect this change in remit, and undertaking a plebiscite of members. If approved by membership, BISA would then need to seek authorisation for the change from the Charity Commission - authorisation that cannot be assumed. Given the process that would need to followed, it is not unreasonable to estimate that the cost would be tens of thousands of pounds in expenditure and months of dedicated labour. 

From the perspective of the duties to which trustees are bound, however sympathetic one may be to the aims of any specific political campaign to which members might like BISA to contribute, it would be hard to reconcile these costs (both financial and in diverting scarce capacity away from core BISA activities) and the risks (i.e. BISA would lose its charitable status if the Charity Commission did not authorise the change) with any benefits that might accrue to the Association. These calculations are even more fraught when BISA currently operates on razor thin margins, continues to experience declines in key income streams due to changes in academic publishing, and has limited cash reserves. Or to put it more bluntly, the energy and expenditure that would be needed to formally align BISA with any political campaign and to do so legally within the UK Charities Act, would cause it to become insolvent with a high degree of probability.

However, these particular risks do not mean that BISA is incapable of acting ethically in how it conducts procurement, financial decision-making, or with whom it formally collaborates. 

It is important for colleagues across the discipline to understand that there are very good reasons as to why UK professional associations that are charities cannot take a more active role in political affairs. BISA cannot do everything. And as a charity, there are things that BISA is prohibited from doing. 

BISA’s charitable status comes with significant advantages, including tax relief on income and reductions in business rates and VAT liabilities. These advantages are central to BISA remaining financially solvent into the future. BISA’s charitable status also comes with responsibilities - for which trustees could be held personally liable should BISA undertake actions that are identified by the Charity Commission as failures in good governance under the Charities Act. 

Taking into account all of the above, I would please ask that fellow members respect the constraints facing trustees, the liabilities that they agree to assume on your behalf, and the considerable amount of labour, including emotional labour, that they offer BISA to help with its charitable remit, and to provide a welcoming and inclusive space for respectful academic exchange. As I hand over to an incoming Executive and Board of Trustees, who will continue to advance the work of the Association in exciting directions, I know BISA remains committed to listening to, and supporting, members who would like to express their views and organise actions within the limits of BISA’s charitable status.

Photo by Oleg Laptev on Unsplash