The International Journal
of Not-for-Profit Law
Volume 3, Issue 1, September 2000
By Kerry O’Halloran
Reviewed by ICNL Staff
Dr. Kerry O’Halloran, who is Assistant Director (Research), Centre for Voluntary Action Studies in the Faculty of Social and Health Sciences and Education, University of Ulster, has written a comprehensive survey of law affecting charities in Ireland that will prove to be a major resource tool for the legal theorist and the researcher alike. This highly readable volume is a wonderful addition to the literature and a much-needed update to earlier surveys of the area.
Dr. O’Halloran presents the information in a logical and easy to follow order, beginning with a short historical overview and then addressing the way in which charity law is administered and applied. The second half of the book is devoted to a survey of the procedures that affect charities in Ireland, including the tax procedures. The Table of Statutes, thoughtfully provided at the beginning of the book, gives the reader a good sense of how complex the written legal framework is. The Table of Cases gives citations to the voluminous case law interpreting the statutes. The Appendices include useful forms, which practitioners will find invaluable.
The chapters on “Charitable Purposes” are highly interesting for a lawyer trained in the Anglo-American tradition. Dr. O’Halloran’s discussions of such difficult topics as “Political Purposes” and “Public Benefit” give a good sense not only of how the issues have developed in the Irish courts, but also of how the same issues are considered in the adjoining jurisdictions (Scotland, England and Wales). Dr. O’Halloran makes clear that public benefit must be served by fairly broad – the public or a section of the public. Thus, the benefits must potentially be available to a significant number of beneficiaries who are not linked to the donor by some sort of private relationship. Just how this palys out in practice in Irish case law is exhaustively treated in the various chapters on the different “heads” of charity.
The book also discusses the problem of political activities of charities in Ireland and notes that the general rule in common law countries — that political activity is inherently not intended to benefit the public – applies in Ireland with equal force. However, Dr. O’Halloran’s discussion of the Irish cases indicates that the courts are beginning to recognize a distinction between the principal objects of a charity (which may not be political) and the incidental activities, which allows some lee-way, at least for established charities. In addition, the distinction between education and overt political activity seems to be gaining acceptance. Nevertheless, this rule in Ireland, like similar rules in other common law jurisdictions, needs to be considered with some healthy skepticism.
In the section of the book on “Governance, Management and Accountability,” Dr. O’Halloran points to a more serious failing of Irish charity law. His lead-in paragraphs show generally what he considers to be the problem:
The law governing charities is unsatisfactory. The voluntary sector has greatly changed since the present legislation was introduced. It has been transformed from the role of substitute/supplement for state provision to becoming a major service designer provided. Statue law has not been similarly transformed.
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 these islands the relevant legislation is most dated in this jurisdiction. In England and Wales the law is stated in the Charities Acts 1992 and 1993. In Scotland the relevant legislation is the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 and the Charities Accounts (Scotland) Regulations 1992. In Northern Ireland the law is largely framed by the Charities Act (NI) 1964 and the Charities (NI) Order 1987. In Ireland, however, the law is still to be found in the Charities Act 1961 as amended by the Charities Act 1973. The growing sophistication of charitable activity, notably in relation to professional fundraising and political lobbying, is not addressed by this legislation.
As stated earlier, the organization of the book makes it easy to use. But it lacks a detailed Table of Contents, which means that the reader must browse through the chapters to find headings that deal with the topic in which s/he is interested. Use of the Index eliminates some searching, but not all. Of course, this is not necessarily a bad thing – in browsing one can discover all sorts of interesting tid-bits that contain useful knowledge!
All in all, this book is a highly satisfactory one and a very useful addition to the bookshelves of both scholars/researchers and practitioners. Dr. O’Halloran is to be congratulated for the hard work that went into producing this book and a job well-done!