The never-ending queue to update the law on charity

The law must catch up with the rapidly-changing third sector landscape, argues Nicola Evans, a senior associate at Bircham Dyson Bell

Nicola Evans
Nicola Evans

As a nation, we are known for being world class at queuing.

On the charity law front, it seems we can take this to a new level. We are good at waiting; we get a lot of practice at it. Currently, we await an announcement on the forthcoming review of the operation of the Charities Act 2006. This is despite the fact that, five years on, much of the act is not yet in operation; we are still waiting.

We are waiting for the regulations to introduce charitable incorporated organisations, the corporate form designed exclusively for charities. These seem to have been imminent for a good few years now, but this time we think it really is going to happen (nevertheless, at the time of writing, we still wait).

When CIOs are brought in, it is expected to be a phased implementation, the details of which are yet to emerge. Charities with a reason to incorporate should not wait; that reason does not go away just because CIOs are not yet available. If appropriate, companies limited by guarantee may be able to convert to CIOs later.

We also await the regulations to implement fully the provisions of Schedule 6 of the Finance Act 2010, which introduce a new definition of charity for UK tax purposes. At present, those are in force for charities only in respect of Gift Aid on gifts by individuals.

The statutory instruments to bring the provisions into force for other taxes have been expected for some time. It seems, however, that we may not need to wait much longer; they are now due to be published for consultation in November, with the aim of bringing them into force from April 2012.

Given the controversy over the new 'fit and proper persons' test within the definition, it may be that some in the sector would be happy in this case to carry on waiting. The difficulty is that having the provisions in force for one aspect of tax and leaving the rest in abeyance can cause confusion - for example, where charities that do not claim Gift Aid are still expected by HMRC to go through the new 'recognition' process.

A consolidation of charity legislation was promised when the 2006 Charities Bill was going through parliament. The resultant bill is currently going through the special consolidation procedure in parliament, but this coincides with the impending review of the operation of the 2006 act.

This has led to suggestions that, rather than simplifying charity law, we might simply have an extra statute that will be amended again in a few years. As ever, charity law seems to be in constant flux.

The sector waited nearly four years for the first reference by the Attorney-General to the charity tribunal introduced by the 2006 act. The decision on that reference, relating to some of the Charity Commission's public benefit guidance, was finally published earlier this month.

Perhaps the epitome of patience is shown by those who deal with the regulation of public charitable collections, possibly the main area where members of the public are aware of direct contact with charities.

Provisions to replace pre-war regulation appeared in the Charities Act 1992, but they were repealed without being implemented. New provisions are included in the 2006 act, but the suspicion is that they will go the same way as their forebears.

Charities are busier than ever at present, trying to service greater demands with diminishing resources. Perhaps it is time that charity law kept up.

Nicola Evans is a senior associate at Bircham Dyson Bell

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