Understanding the Concept of Charity - Essay Example

Running Head: Charities Act 2006 "Critically examine the contribution made by the trust to the following areas of law Charities. (be aware if you chose this topic of the Charities Act 2006.)" [Name of the writer] [Name of the institution] "Critically examine the contribution made by the trust to the following areas of law Charities. (be aware if you chose this topic of the Charities Act 2006.)" Understanding the concept f charity is very important. It's an significant issue because charities play a essential part in civil society. They contribute at least a million people volunteer to serve as trustees -charities touch every corner f British society. The Charities Act 2006 is the first major legislative reform to the meaning f charity since 1601 when the Virgin Queen1 was at death's door. f course, there have been acts on charities in the intervening time but none has dealt with the basic question f what it means to be a charity. If ever a piece f legislation should have been an exemplar f parliamentary best practice it is this. There was the equivalent f a White Paper (a strategy unit report); this was then subject to extensive consultation before a Bill was considered by the Joint Scrutiny Committee f the Lords and Commons. The Government responded and issued an amended Bill that was discussed at length in the Lords. After the last election this Bill was reintroduced and subject to further scrutiny in the Lords and then the Commons. (Jobome 2006, 43-59) After all this do we have a magnificent piece f legislation Hardly. It is a useful technical Bill that introduces reforms, making the Charity Commission a body corporate with a larger board and an independent chairman; a charity tribunal to enable the commission's decisions to be more easily challenged; a range f innovations to facilitate greater accountability f charities; easing restrictions on mergers as well as updating old-fashioned constitutions and a long-overdue overhaul f the law relating to public charitable collections. The real innovation is the definition f charity. Since 1601 the meaning has developed through case law. Those established that charities have to relieve poverty, advance religion, advance education or other purposes beneficial to the community. This last category was a catch-all that allowed flexible development f the law. Hence it encompassed organisations concerned with health, the environment, human rights, the arts and a variety f other causes. This portmanteau has been unpicked and there are now 13 charitable purposes listed: the original four plus nine others, some f which, such as the advancement f amateur sport, are slightly different from the past. The big change was supposed to be about public benefit. For religious, poverty and educational charities it has been assumed that they delivered public benefit unless the contrary was proven. Hence this covered independent schools and hospitals and all religious groups from churches to sects. Only charities with purposes beneficial to the community had to prove that they delivered public benefit. The Act changes this. It requires all charities to demonstrate that they deliver public benefit. Yet having gone so far the Government bottled out. It refused to define what public benefit means. It has left it to the Charity Commission2 to do this, based on the existing case law. That case law is, to put it mildly, problematic. The leading case endorses the status quo, where a school or hospital can claim charitable status if it saves the taxpayer money or provides extra facilities unavailable in the state sector. The Charity Commission has announced that there will be public consultation about what public benefit means, and this will be guided by a group chaired by Professor Albert Weale3, f Essex University. This saga demonstrates the constitutional crises affecting the UK Parliament and, in particular, dilution f the doctrine f separation f powers by this and previous governments. Here is a key topic -public benefit -with wide social ramifications that the executive was unwilling to allow Parliament to debate. (Hankinson 2006, 193-207) It was able to achieve this through the muscle f the whip system. Instead, the executive chose to seek to influence a quasi-judicial authority -the Charity Commission -through executive pressure as it thinks fit. No doubt if the Government changes, the policy will change. This is the executive playing at law-making and judging at the same time. (Jobome 2006, 43-59) This is stealth law and deeply unsatisfactory. The Scots were bolder in their equivalent legislation as they were prepared to define what public benefit means. It leaves the Charity Commission in a very difficult position in trying to forge a public benefit test when caught between the old case law and the current administrations' thinking. Conclusion For a number f reasons non-charitable purpose trusts cannot be readily created under English law. It is an appropriate point f departure to briefly consider these, as the enactments which provide for the formation f statutory purpose trusts, were developed because f the history f non recognition f non-charitable purpose trusts under English trust law. (Hankinson 2006, 193-207) The beneficiary is an essential part f the trust process. The beneficiary has both rights against the trustee and proprietary rights in the trust fund. An important point to note here, is that the rights f beneficiaries in express trusts see that the settlor can fashion almost any form f right for the actual beneficiary, as long as it complies with the beneficiary principle which I will discuss below. In the case f a private trust, there is no such difficulty and in the case f charitable trusts, the Attorney General is charged with the duty f enforcement. Notwithstanding the clarity f the general rule, the English courts have managed over time to create uncertainty whether non-charitable purpose trusts can or cannot validly exist under English law, by from time to time holding that certain non-charitable purpose trusts were valid, such as trusts for the erection or maintenance f monuments or graves and trusts for the maintenance f particular animals. References Jobome, Gregory O., Public Funding, Governance and Passthrough Efficiency in Large UK Charities. Corporate Governance: An International Review, Jan2006, Vol. 14 Issue 1, p43-59 Hankinson, Philippa; Lomax, Wendy., The effects of re-branding large UK charities on staff knowledge, attitudes and behaviour. International Journal of Nonprofit & Voluntary Sector Marketing, Aug2006, Vol. 11 Issue 3, p193-207 Coulter, Adam., Travel charity will offer trade training. Travel Trade Gazette UK & Ireland, 11/10/2003 Issue 2589, p39-39 Jones, Alan., Vintage charity track shows way to success. Music Week, 1/14/2006, p12-12 Glennie, Jonathan., The myth of charity: A 2005 reality check. Globalizations, Jun2006, Vol. 3 Issue 2, p258-260 Singer, Amy., Soup and sadaqa: charity in Islamic societies. Historical Research, Aug2006, Vol. 79 Issue 205, p306-324 Blackhurst, Chris., High Time The City Started To Dig Deep For Charity. Evening Standard, 12/10/2007, p35 Lloyd, Stephen., What does 'charity' mean No one wants to say... Times, The (United Kingdom), 12/12/2006 Mackintosh, Simon., The act of giving. Lawyer, 7/24/2006, Vol. 20 Issue 29, p37-37 Read More