The International Journal
of Not-for-Profit Law

Volume 1, Issue 3, March 1999

A quarterly publication of the International Center for Not-for-Profit Law

Table of Contents

Articles

Creative Uses of Program Related Investments
Milt Cerney

Redes y Redes de Redes
Miguel Angel Itriago Machado and Antonio L. Itriago Machado

The Katz Report - Finally a Reality
Sangoco

Recent Experiences with Re-Registering Foundations in the Czech Republic
Lenka Deverová and Petr Pajas

Canadian Developments
Arthur Drache

Creating an Enabling Environment for Private Philanthropy: the Role of Charity Law in Northern Ireland
Kerry O'Halloran

Establishing New Interactive Forms of Collaboration Between Non-Profit Organizations and Enterprises.- Competitive vs. Collaborative Relationships
Maria Beatriz Parodi Luna

Reflexionando sobre Consolidación de Organizaciones Cúpula de la Sociedad Civil en Venezuela
Charo Méndez

Reviews

Studies of – and prospects for the revision of the tax laws governing non profit organizations 
By Fondazione Italiano per il Voluntario

Protecting Human Rights Defenders - Analysis of the newly adopted Declaration on Human Rights Defenders
By the Lawyers Committee for Human Rights

Las Asociaciones Civiles en el Derecho Venezolano (Qué son y cómo funcionan)
By Miguel Angel Itriago and Antonio L. Itriago
Reviewed by Caroline L. Newman

Philanthropy and Law in Asia
Edited by Thomas Silk

Case Notes

India:
CIT v Sri Gujarathi Mandal | CIT v Nagi Reddi Charity

France:
Association Eglise de Scientologie
| Albert & others v Association club du chien-guide d'aveugles d'Ile de France

United Kingdom:
Varsani v Jesan | Singh v Bhasin | The Zoological Society of London v Customs & Excise / Dean & Canons of Windsor v Customs & Excise | National Trust v Hoare

United States:
United Cancer Council v Commissioner | In Re Bishop Estate

Country Reports

Asia Pacific:
Regional | Australia | China | New Zealand | Papua New Guinea | the Philippines | Singapore | Vietnam

Central and Eastern Europe:
Albania | Bulgaria | Croatia | Czech Republic | Hungary | Latvia | Lithuania | Macedonia | Romania | Slovakia

Latin America and the Caribbean:
Brazil | Columbia | Falkland Islands/ Malvinas | Peru | Venezuela

Middle East and North Africa:
Regional | Egypt | Kuwait | Morocco

Newly Independent States:
Armenia | Azerbaijan | Belarus | Georgia | Kazakhstan | Kyrgyzstan | Moldova | Russia | Tajikistan | Turkmenistan | Ukraine | Uzbekistan

North America:
Canada | the United States

Sub-Saharan Africa:
Cameroon | Ethiopia | Ghana | South Africa

Western Europe:
Regional | Belgium | France | Germany | Republic of Ireland | Italy | Malta | Sweden | Switzerland | the United Kingdom

Self-Regulation Initiatives

Code of Conduct for NGOs In Ethiopia- A Review Article
Eddie Adiin Yaansah

International Grantmaking

What’s Behind the Foreign Public Charity Equivalence Affidavit?
Betsy Buchalter Adler and Ingrid Mittermaier

International Developments

International Fiscal Association Congress 1999

- - - - - - - - - -

Editorial Board

Subscription Information

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Creating an Enabling Environment for Private Philanthropy: the Role of Charity Law in Northern Ireland

Kerry O'Halloran

The author received valuable advice and guidance from colleagues and
others in the preparation of this article. In particular he wishes to
acknowledge the contributions made by Dr Christine Barker (Charity Law
Unit, Dundee University), Dennis Cathcart (Charities Branch, DHSS), Ms
Brid McKernon (Charity Section, NICVA) and Dr Arthur Williamson
(Centre for Voluntary Action Studies, University of Ulster).

Introduction

Facilitating the consolidation of civil society is now the most important challenge facing those actively involved in the broad field of social policy in N Ireland. It questions the established modus operandi of all those engaged whether as politicians, community workers, volunteers, para-military leaders, ministers of religion or as executive officers in government bodies. It poses a problem also for social researchers, such as those who staff the Centre for Voluntary Action Studies (CVAS) at the University of Ulster. As new, indigenous and formal political structures take shape there is a pressing necessity to take stock of the existing informal social networks. This has prompted CVAS to embark on a small research project designed to explore the relevance of charity law to civil society in Northern Ireland. The project aims to generate and make available information in relation to the present and potential role of charity law in shaping an enabling environment for informal social networks.

Throughout the past 30 years of instability in N Ireland, the voluntary sector has produced informal social networks to sustain and bridge local communities. When formal representative democratic structures failed, the voluntary sector provided and filled the informal structures to create a more participative form of democracy.

Private philanthropy, manifested across a range of activity from church related community work to informal political initiative, was
the glue binding together the healthy elements of a fractured society Charities were a vital component of the sector during this period. Charity law was the medium for filtering and legitimating charitable activity. That law provided a framework of authority for the voluntary sector: differentiating between voluntary organisations on the basis of charitable status or otherwise; classifying charities by purpose; and providing such authority as there was for regulating their affairs. It also proved expedient as a means of orchestrating the relationship between the voluntary sector and the state: serving as a mediating mechanism for adjusting the respective remits of the voluntary and statutory sectors and setting the rules for managing that interface; it offered an agenda for discussion between sector representatives, politicians and community workers, facilitating informal lines of communication where no formal channels existed.

Northern Ireland is now entering a new phase, where formal representative democratic structures may well displace the informal participative social networks. It is time to consider the current and potential role of charity law in that context and the CVAS research project has been set up to gather empirical data in pursuance of that objective. The intentions behind this article are, however, more modest. As a baseline preparatory exercise it confines itself to scanning and taking stock of areas in which there is evidence of a lack of fit between charity law and the work of those voluntary organisations which constitute the informal social networks. The question addressed by this article is - does the existing body of charity law offer an appropriate framework for promoting and sustaining the growth of civil society in Northern Ireland?

The approach taken is twofold, focussing initially on structure then on content. Firstly, the legislative and regulatory framework is
examined; the relevant statute law, the regulating and funding roles of public bodies and the resulting case law, to establish the extent to which this framework is conducive to achieving that end. Secondly, the concept of 'public benefit', which is of central significance for charity law, is applied as a tool to measure the framework's appropriateness and effectiveness. A capacity to identify, protect and promote contemporary public benefit is the acid test of charity law's relevance and effectiveness in relation to social need within a changing political context. An enabling environment for the bedding down of civil society in Northern Ireland will be created if charity law is able to provide a flexible, sensitively attuned and responsive framework for private philanthropy in all its manifestations.

(A) Charities & The Voluntary Sector in N Ireland

The Northern Ireland Council for Voluntary Action (NICVA) in its State of the Sector (first edition 1997, second 1998) provides a statistical map of the scale and scope of voluntary activities in N Ireland. It has also, since 1995, maintained SectorNet the most comprehensive, but entirely voluntary, database of the province's voluntary and community sector organisations. The Charities Branch of the Department of Health and Social Services (DHSS) has issued a number of helpful briefing and consultation papers such as Northern Ireland Charities: A Guide for Trustees (1997). From these valuable sources of data the following facts emerge to provide a picture of charities and the voluntary sector in N Ireland. . There are approximately 5,000 voluntary and community organisations in N Ireland . The gross income of the sector is approximately stlg514m . Social care, which is the main focus for charities, is the single largest field of economic activity in the voluntary sector . The sector contains approximately 33,500 paid employees and 79,000 formal volunteers . In 1995 there were 3,095 charities known to the DHSS . In 1997 private charitable giving totaled approximately stlg42m, corporate donations stlg4.4m, the National Lottery distributed stlg12.9m to charities while the government gave stlg248m and foundations gave approximately stlg23m to voluntary and community organisations including charities. It can be readily seen that charities play a prominent role in the voluntary sector in N Ireland.

(B) The Legislative and Regulatory Framework Legislation

The island of Ireland, forming one jurisdiction until the second decade of this century, though ruled from Westminster, had its own court system and had acquired its own distinct body of legislation. The provisions of the first charity law statute, the English Charitable Uses Act 1601 (43 Eliz. 1 c. 4) were extended to the island by the Irish statute entitled "An Act for the Maintenance and Execution of Pious Uses", 1634 (10 Car. 1 sess. 3 cap 1). The division of the island into two jurisdictions left the North of Ireland with residual ties to the south; case law precedents and statutory principles continued to have some bearing on judicial determination in the courts of Northern Ireland, perhaps particularly in matters of chancery and probate. Until the abrogation of Stormont, this jurisdiction had a degree of legislative independence after which it was ruled directly from Westminster by way of legislation which largely extends to the province, after an interval of a few years, statutory provisions created for England and Wales. Currently, the legislative framework is governed principally by the Charities Act (NI) 1964 and the Charities (NI) Order 1987 which largely replicate the provisions of the English Charities Act 1960 as amended. These statutes now form the most dated body of legislative provision governing charities and charitable activity of any jurisdiction in the UK. They are more enabling than regulatory in nature.

Public Bodies as Regulators

Ensuring that charities exercise probity and accountability in the use of funds given or subsidized by the public is an important function of government bodies. In N Ireland the responsibility to do so, such as it is, is widely distributed. The Department of Health and Social Services This statutory body is the charity authority for Northern Ireland. Its responsibilities as such are largely governed by the Charities Act (NI) 1964 and are undertaken by the Charities Branch of its Voluntary Activity Unit. It has no statutory role in connection with the setting up of new charities. The DHSS has the following regulatory powers - Where it appears that legal proceedings should be considered in relation to a charity, the DHSS may send a certificate to that effect, with explanatory particulars, to the Attorney-General.

The A-G may institute such proceedings as he considers proper. Where the DHSS has reasonable grounds to believe that any charity property may have been concealed, misapplied or withheld it may, with the consent of the A-G, by order require copies of any books, records, deeds or papers relating to the charity. Where there is alleged to be a breach of a charitable trust or the advice of the court is required in connection with a charity, the DHSS (having served notice of its intention on the A-G) may apply for such relief as may be necessary.  The Charities Branch of the Voluntary Activity Unit is mostly concerned with the giving of consent to the disposal of property by charity trustees and making cy-pres schemes up to a financial limit of stlg50,000. It also provides advice to trustees, their solicitors and members of the public interested in charity matters.

The Inland Revenue

In Northern Ireland, as elsewhere in the UK, the Inland Revenue is the body to which applications are made for recognition of eligibility to claim tax exemption on grounds of charitable standing. It has a responsibility for granting or refusing charitable status for tax relief purposes and issues a reference number (usually beginning XO, XN or XR) to those organisations approved as charitable. The Inland Revenue plays a limited regulatory role in that it checks that income has, in fact, been applied exclusively for charitable purposes (or indeed applied at all rather than left to accumulate) and that claims for repayment of tax are properly substantiated. The Inland Revenue can also withdraw recognition where it appears that purposes are no longer exclusively charitable, for example where there has been an inappropriate alteration to a founding document or where the body's actual activities do not correspond to those in the founding document upon which charitable status was based.

The Royal Ulster Constabulary 

The role played by the police in regulating the activities of charities is much greater in Northern Ireland than elsewhere in the UK. In Northern Ireland, most applications for permission to carry out street or house-to-house collections are dealt with by the RUC. In any case where there is a suspicion that a criminal offence (e.g. fraud, theft, obtaining money under false pretences) has been committed by or against a charity or its trustees, or by any body or person falsely claiming to be a charity, this is automatically dealt with by the RUC under the general criminal law. It may be speculated that the greater range of regulatory responsibilities placed on the RUC frees the DHSS to adopt a more facilitative role in relation to charities than would otherwise be possible. The Courts The main charity related work of the courts occurs in relation to the making of cy-pres schemes where the value of the fund or property exceeds stlg50,000 and in adjudicating on disputes relating to the rating liability of charities. It is a very rare occurrence for proceedings to be commenced in respect of a charity's functions or whether these meet the public benefit test.

The marginal significance of the courts is well illustrated by the fact that since the foundation of the state in 1922 only a total of approximately 132 cases have been heard which relate to charity law.

Public Bodies as Funders

A great deal of funding comes from national or local government, particularly in the health and social care sector, and the funding public bodies impose their own form of regulation which is frequently additional to, or even in conflict with, the statutory provisions.
Charities have become increasingly involved in the provision of welfare services which were previously provided by central government, and this has led to an increase in the number of service contracts entered into by charities with central and local government bodies - the so-called "contract culture". The recent report of the Comptroller and Auditor General on the regulation and support of charities in England and Wales states that a third of charity income arises from contracts with government, government grants and tax reliefs. One of the reasons for offering service contracts to charities in preference to public sector bodies providing these themselves is because charities have innovative ideas about how to run the services and greater enthusiasm in their practical operation because of their commitment to the particular cause or causes involved. Charities can also provide greater flexibility in service provision.

(C) Current Legislation and the Role of Government Bodies: their Inhibiting Effect on Philanthropy in N Ireland

Problems with the Legislation

The law governing charities is unsatisfactory in N Ireland. The voluntary sector has greatly changed since the present legislation was introduced. The legal framework, within which this jurisdiction's many thousands of charities now operate, is no longer appropriate to accommodate their needs and regulate their activities. Within the UK the relevant legislation is most dated in this jurisdiction. In England & Wales the law is as stated in the Charities Acts 1992 and 1993. In N Ireland the law is largely framed by the Charities Act (NI) 1964 and the Charities (NI) Order 1987 as supplemented by a range of other legislation, often of greater antiquity, in fields such as company law, taxation, public order and education. The growing sophistication of charitable activity, notably in relation to
professional fundraising and political lobbying, is not addressed by the existing legislation.

Problems with the Regulatory Role of Government Bodies Unlike other UK jurisdictions there is no statutory provision in N Ireland for the registration and inspection of charities; indeed 'charitable status' is itself an uncertain legal concept in the absence of any process for confirming the standing of a body as a charity. None of the government bodies keep a register of live charities and no statutory mechanisms exist for ensuring probity, requiring accountability, setting and monitoring standards or for ascertaining effectiveness in the activities of charitable organisations. In particular there is no counterpart to the Charity Commission of England and Wales. The overall statutory duty of the Commissioners is "promoting the effective use of charitable resources by encouraging the development of better methods of administration, by giving charity trustees information or advice on any matter affecting the charity and by investigating and checking abuses". In N Ireland there is no government body with equivalent statutory powers to register, inspect and regulate charities.

Problems with the Funding Role of Government Bodies

Charities are of course legally constrained in the extent to which they may engage in advocacy (and trading) activities. But, with very few exceptions, charities need money in order to fulfil their objectives, and in order to obtain the necessary funding may sometimes be too willing to accept contracts which further restrict their advocacy role. In fact concern has been expressed that some charities and other voluntary organisations are so dependant on State funding that they are in danger of becoming just an arm of the State.
Moreover, the control exercised by the funders is such that by selecting some voluntary organisations for contracts they thereby
de-select others which are then abandoned to sink or swim. This is in danger of becoming a process of virtual 'colonisation' of non-profits by government bodies, with survival guaranteed only for those favoured with government contracts because their agenda complies with government priorities. The erosion of the independence of the voluntary sector has attracted concerned comment in two recent UK reports: the Commission on the Future of the Voluntary Sector in England, Meeting the Challenge of Change: Voluntary Action into the 21st Century, NCVO Publications, London, 1996 (also referred to as the Deakin Report); and the Commission on the Future of the Voluntary Sector in Scotland, Head and Heart, SCVO, Edinburgh, 1997 (also referred to as the Kemp Report). Deakin speaks of a danger of losing the distinctive nature of voluntary action:

The distinctive nature of voluntary action in our society is now in danger of being compromised as organisations move away from their original objectives and take on new roles defined for them by others.

Both Deakin and Kemp fear a loss of independence:

Short-term contracts may threaten independence and the ability to speak out or campaign. And ... may lead to unhealthy dependencies.

Referring to the partnership between the voluntary sector and government, both reports stress the need for equality and equability
and need to maintain an advocacy role:

...voluntary bodies must be free to be advocates even where they are
also partners.

This muting of dissent, the enduced compliance with contracting government bodies, is a development which comes at a critical time for N Ireland. The removal of a regionally based infrastructure for representative politics in 1974, coupled with social instability, had left a vacuum which until very recently had been filled by a network of community based voluntary organisations. To these organisations had fallen the task of articulating and representing the interests of the many different groups that constitute the fragmented society of N Ireland. Small 'p' politics grew and flourished in the space left by the dismantling of structures for formal big 'P' politics. Many such organisations, including the larger 'umbrella' bodies, were charities.

Now, the reinstating of representative democratic political structures, in conjunction with the developing 'contract culture' led by powerful government bodies, threatens to neuter the future role of those participative democratic structures which had developed within the voluntary sector to bridge community divisions and open channels of communication between the socially excluded in N Ireland and the politicians of Westminster.

(D) The Public Benefit Test

In the UK the definition of "charitable", which originates from the Preamble to the Charitable Uses Act 1601, may be summarised as incorporating four main "heads" of charity: the relief of poverty, the advancement of education, the advancement of religion, and purposes beneficial to the community not falling under the first three heads.

This definition and the general principles connected with it were imported equally into the law of N Ireland and that of all other regions of the UK, via tax law, by the ruling of Lord Macnaghten in Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531. Importantly, the definition also includes an overriding requirement of public benefit applicable to all four "heads" of charity. The extent to which charity law is now in practice meeting the requirements of the test, thereby providing the necessary enabling environment for philanthropic activity in N Ireland, may be estimated by briefly considering the mainly legislative and case law material under each of the Pemsel headings. The courts have established a presumption that gifts falling within any one of the first three Pemsel categories are for the public benefit. In fact, although this holds good for the first and third categories, trusts for the advancement of education have quite often not qualified as charitable trusts because of a failure to satisfy the public benefit requirement. No such presumption applies in respect of gifts within the fourth category.

Trusts for the relief of poverty

Charity law has its origins in trusts for the relief of poverty. However, a complex national system of government departments is now charged with duties in respect of its alleviation. The remaining opportunities for individuals to make private contributions which supplement rather than supplant the public responsibilities of statutory agencies are uncertain. Against that background it has to be said that there is considerable evidence to demonstrate that charities are not effectively addressing the problem of poverty in N Ireland.

The statistical evidence indicates both that charitable giving per head of the population is higher in N Ireland than elsewhere in the UK and that so also is the level of poverty (in terms of low income, poor housing, dependency on state benefits etc). The 'public benefit' test, as interpreted by the courts, has been virtually nullified in its application to the relief of poverty. The recognition of charitable status, given originally by the courts in England to the 'poor relations' class, has since been extended by analogy to such other classes as 'poor employees' and 'poor members'. This trend has now reached the point where the courts are unlikely to rule that gifts to any other class will fail because of a failure to meet the public benefit test. So, in N Ireland, while the relevance of the 'public benefit' test to gifts for the relief of poverty is reduced and the level of charitable donations is high, the actual prevalence of
poverty continues to be more endemic than elsewhere in the UK.

Trusts for the advancement of education

In N Ireland, religion and education have always been closely linked. The history of charity law, as it relates to trusts for the advancement of education, is tied closely to the history of religious difficulties. Elsewhere in these islands, the importance of this branch of charity law has faded as the role of voluntary organisations in education has been displaced by state provision. But, as many of the buildings and teachers comprising the educational system are provided by religious bodies or to a lesser extent by other independent organisations, trusts for the advancement of education continue to have a real significance. The public benefit test is more difficult to satisfy in application to trusts for the advancement of education than to trusts for the relief of poverty or for the advancement of religion. The difficulties are evident in both the 'public' and the 'benefit' strands of the test. As in relation to other charitable purposes, the rules for determining when the 'public' component is satisfied allowing a trust for the advancement of
education deemed to be charitable are neither fixed, precise nor readily applied. It is essential that the size of the class can be ascertained. This has lead to recurring problems in relation to both minimum and maximum numbers. The public benefit test is also difficult to satisfy in relation to trusts for the advancement of education because of the significance of 'dissemination'. The importance of sharing or publication, rather than the simple accumulation of knowledge, is an essential and distinguishing characteristic of a charitable trust in this context. The authorities are also clear that to be charitable a trust for the advancement of education must have a purpose which meets criteria of 'usefulness'. In this context, the ruling of the House of Lords in Governors of Campbell College, Belfast v Commissioners of Valuation for Northern Ireland [1964] 2 All ER 705 was particularly important as it established that all premises occupied for charitable purposes would per se meet the 'public benefit' test for the purposes of qualifying for exemption from rates.

In N Ireland, the growth of the independent school movement has been an enormously encouraging development in recent years. By specifically providing schools which cater for children from both sides of the cultural/religious divide an important cross-community platform has been put in place which can only assist in promoting greater mutual understanding in a polarised society. The potential for this initiative and others like it to contribute towards social stability in N Ireland would be assisted by adjustments to the 'public benefit' test as it applies to education.

Trusts for the advancement of religion

The courts in the United Kingdom will not inquire into the inherent validity of a particular religion nor will they examine the relative merits of different religions. But research currently being concluded in the Law School at Queens University Belfast indicates that for some generations a very distinctive characteristic of private charitable giving in N Ireland has been the very large proportion of wills and testaments which contain a bequest in favour of a church, religious denomination or which are otherwise intended to advance the religion to which the donor adheres. Gifts for the saying of masses, for example, have long been a distinctive characteristic of the charitable activity of Roman Catholic testators. This has been evident also in gifts to closed contemplative religious orders, as opposed to those actively engaged in good works in the community. In N Ireland, as was apparent in Commissioner of Valuation v Trustees, Newry Christian Brothers [1971] NI 114, the courts will require evidence that such a gift satisfies the public benefit test. That a gift will not do so when given to a closed contemplative order was demonstrated by the ruling of MacDermott LCJ in Trustees of the Congregation of Poor Clares v Commissioner of Valuation [1971] NI 174, where charitable status was denied. The necessary evidence may, for example, take the form of proof that masses will take place in public. As McVeigh LJ observed in Trustees of the City of Belfast YMCA v Commissioner of Valuation [1969] NI 3, 30:

It is well established that once a trust has been held to be for the advancement of religion the question whether it has the necessary element of public benefit is a question of fact which must be answered by the court in the same manner as any other question of fact, i.e. by means of evidence cognisable by the Court.

In N Ireland, given the importance of religion and the potential for it to promote division in society, it is probable that the application of the public benefit test in this context could be profitably reviewed.

Trusts beneficial to the community not falling under any of the preceding heads It is stated in Hanbury & Martin, Modern Equity (14th ed., 1993, p 420) that it may seem anomalous to speak in terms of a public benefit in relation to this category as it is defined in terms of trusts for the benefit of the community. Nevertheless, it is to this category that the interpretation of the public benefit test has been applied with most rigour. In N Ireland the difficulties were examined by Carswell J in Re Dunlop [1984] NI 408 at p 426:

The essence of the charitable nature [of trusts within Lord Macnaghten's fourth category] is that the beneficiaries should not be a private class, nor should any limitations be placed upon the gift which would prevent the public as a whole from enjoying the advantage which the donor intends to provide for the benefit of all the public. It would be quite consonant with this concept that it should be more difficult for a trust under the fourth head to satisfy the requirements of public benefit, and that a bridge to be used only by Methodists should fail to qualify where a gift for the education of the children of members of that church might be a valid charity.

Carswell J then applied the public benefit test to a gift for the purpose of establishing a home for 'Old Presbyterian Persons' and upheld it as a valid charitable trust. His decision was based upon a finding that 'benefit' would accrue to those in need and that the group was sufficiently 'public' and devoid of any personal relationship nexus to the donor. The fact that the benefit would be restricted to a narrowly defined category of potential beneficiaries did not negate its public utility. Some of the case law groupings under this fourth 'head', such as those within the broad umbrella of 'health', are coalescing and growing at such a rate as to warrant recognition as separate and distinct areas of charity law. Trusts for promoting recreational facilities Where a gift is for the purpose of providing recreational facilities then charitable status will be upheld. In N Ireland this is subject to the qualification declared by MacDermott LCJ in Commissioner of Valuation v Lurgan Borough Council 'the law does not regard the mere provision of recreational facilities charitable unless they are provided in the open air on land dedicated to the use and enjoyment of the public'. Gifts for the benefit of animals A gift made for the purpose of conferring a benefit upon a particular animal cannot acquire charitable status. However, if made for the benefit of a particular type of animal or for animals generally, then such a gift will be charitable. The charitable status of gifts to animals is dependent upon whether or not they are of benefit to mankind. Trusts for the promotion of health The public benefit test has been applied most rigorously in relation to trusts for the promotion of health. This was convincingly demonstrated by the ruling of Babington LJ in Trustees of the Londonderry Presbyterian Church House v Commissioners of Inland Revenue [1946] NI 178, 196.


(E)Towards a more Facilitative Legal Environment for Private Philanthropic Activity in N Ireland


Charity law is currently being examined in each of the UK jurisdictions. The reason for this is largely attributable to the ethos of the new labour government with its long-term political objective of promoting the development of the voluntary sector and strategically realigning it with the statutory and for-profit sectors.

Questions are being openly asked about the appropriateness of the existing charity law framework as a facilitative medium for assisting this political objective. Nowhere in the UK is that framework more dated and, arguably, more out of synch with the issues and dynamics of the voluntary sector than in N Ireland.

Legislation, Regulation and Funding

The complex issues currently preoccupying charities, together with their modern range of activities and the sophisticated context within which they now operate, can no longer be comfortably accommodated within 1960s' legislation. A review of the Charities Act (NI) 1964 is long overdue. The regulatory mechanisms for charities in N Ireland are neither appropriate nor effective. In particular, the case for establishing and maintaining a compulsory register of charities, with provision being made for public access to their accounts, is unanswerable. A strong argument can also be made for establishing a body which would have powers of inspection in relation to a charity before registration and periodically thereafter, with a power to de-register as appropriate. Existing funding arrangements need to be examined. In particular, the increasing dependency of many charitable bodies on short-term contracts and the implications this has for staffing is a matter of concern. Fundraising, with special reference to the impact made by the National Lottery and the growing reliance on professional fundraisers, is a modern aspect of charitable activity which needs to be re-assessed.

Public Benefit

In discussions currently taking place throughout the UK the definition of "charity" is felt by many to be inappropriate for today's society. The relevance of the "four heads" classification of charitable activity, as outlined by Pemsel one hundred years ago, is now being questioned. It has been suggested that "public benefit" should be the sole criterion used to determine charitable status. Bodies such as quangos and private schools, which currently qualify under the "four heads" definition, should no longer be entitled to describe themselves as charities, as they benefit only a small section of the public.

Instead, there are suggestions that charitable status might be more appropriately conferred, for example, on voluntary bodies which assist the unemployed find jobs, community development organisations, even rural post offices which offer a focal point of social contact in isolated communities. Given the levels of poverty and unemployment in N Ireland, together with the very many communities where people feel alienated and socially excluded, it will be appreciated that any such redefining of "charity" along the lines suggested above could have very real implications for this jurisdiction.

New Developments Affecting the Wider Voluntary Sector Context There have been two recent UK experiments in the politics of the voluntary sector which may prove to be significant for the future of charities and charity law in N Ireland: "compacts" and "partnerships".

Compacts

The Deakin Report specifically recommended a concordat between central government and the voluntary sector, and the Labour Party made a General Election commitment to establish a "compact" which would establish the principles governing relations between central government and the sector, with a task force of ministers to oversee its implementation. Since Labour came to power in May 1997 four separate compacts (for England, Scotland, Wales and Northern Ireland) have been developed. The Scottish Compact was published in October 1998, the English Compact Getting it Right Together and the Compact for Wales were both published in November 1998, and a similar Compact for Northern Ireland was laid before Parliament in December 1998. The N Ireland Compact together with the revised Strategy for the Support of the Voluntary Sector and for Community Development in Northern Ireland (DHSS, 1993) will reshape the context within which charities and charity law have to operate.

The District Partnerships

These are locally based forums comprising one-third representation from each of the following: business or for-profit bodies; community development and other non-profit bodies; and elected councillors.

There are twenty-six such partnerships in N Ireland governed by a Partnership Board. Considerable funds have been made available to the partnerships by the EC (stlg55m for 1995-97) on condition that each puts forward an agreed proposal for a project of benefit to its community. The equal weighting of diverse interests in such forums provides an interesting and exciting demonstration of effective participative democracy. It remains to be seen whether these partnerships will be displaced by the new formal political structures or whether they will become consolidated as a mechanism for channelling small 'p' politics to address local community needs. If the latter, then again the context for the role of charities and charity law will have changed.

Conclusion

This paper has sought to draw attention to the need for change in the role of charity law in N Ireland. The voluntary sector has greatly changed since the present legislation was introduced. The legal framework, within which this jurisdiction's many thousands of charities now operate, is no longer appropriate to accommodate their needs and regulate their activities. To address that problem, the Centre for Voluntary Action Studies has acquired funding to undertake a charity law research project. This has three main aims. Firstly, it will map the nature and extent of the current lack of fit between charitable activity and charity law within this jurisdiction.

Secondly, it will compare the distinctive characteristics of current N Ireland charity law with those of the other UK jurisdictions and assess the significance of the differences. Finally, it will evaluate the wider social policy implications which arise for managing the interface between government and the voluntary sector in N Ireland as a consequence of the current legislative deficit. I look forward to eventually briefing IJNL readers on the research findings.

Select Bibliography

Acheson, N, and Wiliamson, A. (eds), Voluntary Action and Social Policy in Northern Ireland, Avebury, Aldershot, 1995.

Barker, C.R., Ford, P.J, Moody, S.R., Elliot, R.C. (eds) Charity Law in Scotland, W. Green/Sweet & Maxwell, Edinburgh, 1996.

Knight, B., Voluntary Action, HMSO, London, 1993; published in second edition by CENTRIS, London and Ovingham, 1993.

The Department of Health and Social Services (NI), Strategy for the Support of the Voluntary Sector and for Community Development in Northern Ireland, HMSO, 1993.

The Commission on the Future of the Voluntary Sector in England, Meeting the Challenge of Change: Voluntary Action into the 21st Century, NCVO Publications, London, 1996 (also referred to as the Deakin Report).

The Commission on the Future of the Voluntary Sector in Scotland, Head and Heart, SCVO, Edinburgh, 1997 (also referred to as the Kemp Report).

 
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ISSN: 1556-5157