It's simpler - but is it better?

Lawyers are divided over the content of the new Charities Bill, as well as its timing

Parliament
Parliament

The Office for Civil Society last month announced the publication of a new consolidated Charities Bill, which is intended to simplify charity law by putting it all into one place.

An OCS spokeswoman said the bill, now before the House of Lords, was needed because it was "unjust" for legislation to be so complex that it was inaccessible to those it affected.

The department's assessment of the complexity of the legislation seems accurate: charity law can currently be found in the Charities Act 2006, the Charities Act 1993 and the Recreational Charities Act 1958.

However, the move to simplify it came as a surprise to many charity lawyers, who had known a consolidation bill was in the pipeline but did not know its publication was imminent. Many were surprised that, with a review of the 2006 act due this year, the introduction of the consolidated bill had not been postponed in order to include any changes that resulted from the review.

The move also raised several other objections, including that it omitted legislation on professional fundraisers and that it would not take into account interpretations of the 2006 act's public benefit requirement that are likely to arise from two landmark charity tribunal cases due to take place this year.

One case will look at how fee-charging schools can demonstrate they provide the public benefit required by the law; a second will look at how the requirement applies to employee benevolent funds.

Andrew Studd, a partner at law firm Russell-Cooke, says: "Consolidation itself is a good thing. But there is great uncertainty about what public benefit means - this could have been an opportunity to revisit that.

"Given the uncertainties that surround the two charity tribunal hearings, on schools and benevolent funds, and given that a review of the act is due this year, the timing seems strange," he said. "I think it's a case of the left hand not knowing what the right hand is doing."

However, Jonathan Burchfield, a partner at the law firm Stone King, says the time is right. "It is good to consolidate now because it may take two or three years to factor in other changes, and the sooner we simplify the legislation, the better," he says.

Burchfield's objection is to the bill's content, rather than its timing. "It has left out the provisions from the Charities Act 1993 that relate to the control of fundraising," he says. "This is the fundamental law about how you fundraise and, if you use somebody professional, they explain to the public what they're being paid. The public needs to know this. Leaving these provisions out relegates them to a second division of legislation."

Burchfield says he hopes members of the House of Lords will ask that the provisions be put back into the bill.

Lord Andrew Phillips, the Liberal Democrat peer and founder of solicitors Bates Wells & Braithwaite, agrees about the importance of fundraising provisions but thinks there is no chance they will be put back into the new bill. "The legislative process would take too long," he says.

Charity lawyers will no doubt object to the consolidated bill being introduced with little warning, little chance of amendment and little opportunity for the sector to debate what should be included.

They do not, however, challenge the OCS's view that charity legislation is over-complicated and that, at a time when the Charity Commission is scaling back its advice and guidance role, it would be unfair to the sector not to simplify it.

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