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Interface with charity law and the Charity Commission - Rosamund McCarthy

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Interface with charity law and the Charity Commission - Rosamund McCarthy Presentation Transcript

  • 1. INTERFACE WITH CHARITY LAW AND THE CHARITY COMMISSION Rosamund McCarthy Partner - BWB October 2010
  • 2. Summary of Talk
    • What kind of public law challenges constitute political campaigning?
    • How much political campaigning can a charity undertake?
    • When is it advisable to seek advice or an order from the Charity Commission/Court to protect Trustees regarding the costs of the legal action (eg charity’s legal costs and costs of the other side)?
  • 3. Definition of Lawful Charity Campaigning
    • Type 1: Non Political Campaigning
    • Public awareness raising and changing public attitudes on a particular issue.
    • Activities to change the policy or practice of a business or company, or other independent/private bodies.
  • 4. Definition of Lawful Charity Campaigning
    • Type 2: Political Campaigning – CC9 Guidance
    • Activity by a charity which is aimed at securing, or opposing, any change in the law or in the policy or decisions of central government, local authorities or other public bodies, whether in this country or abroad. It includes activity to preserve an existing piece of legislation, where a charity opposes it being replaced or amended.
  • 5. Definition of a Public Body - CC9 Guidance
    • All ministries, departments and agencies of government, whether local, regional, national, in the UK or overseas. Examples include:-
    • The UN, other international bodies, and their agencies.
    • The EU and its associated bodies.
    • The World Bank and similarly constituted bodies.
    • NHS Trusts
    • Regional assemblies, development agencies and corporations.
    • N-DPBS (but not those that are registered charities)
    • Similar Bodies and agencies in other countries.
  • 6.
    • HOW MUCH CAMPAIGNING CAN A CHARITY
    • CARRY OUT?
    • Type 1 = 100% of resources
    • Non Political
    • Campaigning
    • Type 2 = CC9 guidance (March
    • Political 2008): political
    • Campaigning campaigning cannot be the sole and continuing activity
  • 7. Trustees’ duties (1)
    • To be considered in respect of both Type 1
    • and Type 2 activities. Always be aware of
    • the objects of a charity e.g.
    • Education
    • Religious
    • Prevention or relief of poverty
    • Human rights
    • Animal welfare
  • 8. Trustees’ duties (2)
    • To be considered in respect of both Type 1 and Type 2 activities
    • Is there a reasonable expectation that it will further the charity’s purposes?
      • How likely is it that the campaign will reach its objective?
      • What other activities would achieve the same objective?
    • Is the use of resources to promote the campaign justified?
      • Duration and financial cost
      • Would other activities be more cost effective?
      • Is campaigning to be the only activity?
  • 9. Trustees’ duties (3)
    • To comply with all legal requirements including charity law, CC9 guidance, public order law e.g. SCOPA 2005, defamation law, election law etc
    • To manage the risks, including the reputational risks
      • Risk of acting outside purposes
      • Is there a sound and factually accurate evidence base?
      • Risk to independence e.g. public perception if charity’s policy coincides with that of a political party
  • 10. Involving the Charity Commission
    • Consent of the Charity Commission is always required for Charity Proceedings, which in essence are proceedings relating to the administration of a charity eg interpretation of the constitution, members’ action against Trustees.
    • Public law remedies are, generally speaking, not Charity Proceedings and therefore the consent of the Charity Commission is not required.
  • 11. Involving the Charity Commission Continued…
    • Is it ever advisable to seek the consent of the Charity Commission, even though this is not required?
    • Starting Point: Provided the Charity has the funds, all Trustees are entitled to be indemnified out of the assets of a charity for costs and expenses, including legal costs, properly incurred.
    • However, the more risky and expensive the litigation is likely to be, the greater the need to consider applying for the protection of the Charity Commission.
  • 12. Powers of the Charity Commission
    • Section 29 Charities Act 1993 gives the Commission power to advise Trustees and where a charity acts in accordance with the advice, they are deemed to have acted properly.
    • Other powers eg S26 and permission to take Re:Beddoes.