Nicola Evans: charity law is not getting the resources it needs

The sector needs a regulatory environment that is fit for purpose, says the senior associate at Bircham Dyson Bell

If one who appeals is an appellant, is one who repeals a repellent? If so, the coalition government might become exceptionally repellent if it follows through with its Your Freedom initiative, which invites us to tell the government which laws and regulations we think should be removed or changed.

This forum invites suggestions for restoring civil liberties, repealing "unnecessary laws" and cutting business and third sector (not civil society?) regulation.

The enormous breadth and scale of regulation affecting the third sector is reflected in the ideas that have already been submitted. Requests have been made for people to have single CRB checks, rather than separate ones for each new role, for streamlined health and safety compliance and for the reinstatement of the zero corporation tax rate for companies with profits not exceeding £10,000.

Other suggestions relate to VAT, licensing laws, insurance and so on. Public benefit makes some appearances, as does the ongoing debate on independent schools. There have even been calls for the repeal of both the Charities Acts 2006 and 1993.

The ideas submitted to Your Freedom perhaps reflect an appetite for better regulation, not more regulation. But good regulation begins with good legislation and, in this area, the charity sector tends to lose out.

As an example, the Companies Act 2006 and Charities Act 2006, each intended as reforming legislation, received royal assent on the same day in November 2006. The Companies Act, having already been favoured with a consolidation process during its passage through Parliament, was, at more than 1,300 sections and 16 schedules, the biggest act ever passed by Parliament. Yet it was implemented in major tranches on regular pre-announced dates and brought into effect by October 2009, with sufficient budget given to Companies House to administer all the necessary changes.

The - as yet - unconsolidated Charities Act, with 80 sections and 10 schedules, is still on a slower and rather more irregular course of implementation, with major concepts such as charitable incorporated organisations and public collections provisions not yet in force and work on exempt charities just beginning.

These are difficult areas, requiring the introduction into English law of a wholly new legal entity, major negotiation with representative bodies and new regulatory practices. This requires proper resourcing. But doubts remain, for example, over whether the Charity Commission will have sufficient budget to carry out its role in the implementation. It is unclear if some provisions will be implemented at all.

More often than not, charity legislation is not considered a priority or afforded the time for proper debate and scrutiny. For example, the public benefit debate and surrounding uncertainty is a direct result of the fact that this difficult concept - fundamental to the meaning of charity - was not addressed properly in Parliament.

Because of the breadth of the areas in which the sector operates, it is affected by legislation across the spectrum. And yet it is often an afterthought when such legislation is debated, with relevant amendments added in haste at the last minute or rejected for lack of time.

The sector is now being called upon to come to the rescue of "broken Britain" and generally be the glue that holds the big society together, although it remains unclear what finance it will have. It is moving up the political agenda and deserves equal prominence in the minds of legislators.

The sector also needs a regulatory environment that is fit for purpose. Whether Your Freedom results in any positive action or sinks under the weight of the ideas submitted, it perhaps signals a more accepting environment for sector leaders to tackle ineffective regulation and promote a joined-up approach from legislators and regulators alike.

Now that would be appealing.

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