Let’s be clear. A referendum will not change the constitution of Shetland Charitable Trust. Only the trustees can do that.
Any referendum can only be advisory, giving an indication of the public’s view which will be heavily dependent on the question asked.
So what is the convener trying to achieve through a referendum? Delay, certainly. Avoidable and unproductive confrontation with Edinburgh agencies, most probably.
Presumably the convener will seek to use a referendum to vote down the trust’s draft reform package. This reform waters down the council’s control of the trust by creating a majority of appointed trustees. It is a package designed to meet the minimum requires of the law governing charities which insists that trustees act independently. Most trustees, most of the time, should not be or be seen to be beneficiaries of the trust.
I have some sympathy with the view that the elected councillors should control trust funds. The trust is, after all, the community income of all Shetlanders, and the councillors are our elected representatives.
But they can only control the trust if the trust loses its charitable status, because it is amply clear that trustees who are all councillors cannot make up a trust that satisfies the law by being governed by independent trustees. That is why continuing the present governance of the trust is not an option, except at the cost of many millions of pounds a year in tax if charitable status is lost.
If the referendum votes to keep the present arrangement and the trustees accordingly decide on no change, then the Scottish Charities Regulator (OSCR) will intervene to take over control of the trust if it is to remain a charity.
Further, the Accounts Commission will insist that trust funds are considered as part of the council’s assets, a move which could be very unhelpful for our public finances. I repeat, no change is not an option.
But nor is the package devised by the trust and put forward by trust chairman Bill Manson satisfactory. There may be a non-councillor majority, and that may satisfy the law, just.
But the appointed trustees will be chosen through an appointments system controlled by councillors, and they will not be accountable to anyone else. The independence of the independent trustees is meaningless unless they are elected and accountable to the people of Shetland as a whole.
So it depends what question or questions are asked in the referendum. Keeping the present system is not an option unless you want to lose millions unnecessarily, and have a row with national agencies which can be expected to take over management of our assets.
Voting for the trust’s package of proposals is not worth turning out for. It only covers the present control of the trust by councillors with a very flimsy veil.
The referendum will only be worth anything if we are given the option of supporting direct election of trustees. And we will have to express that view strongly, or they’ll find some way of not listening to us.
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