Opinion: Third Voice - Charity law would be safer in Parliament's hands

Christopher Price, a former Labour MP, and was chair of the Commons Select Committee on Education

The Charities Bill, which will arrive in the House of Commons later this month, is keenly awaited across the whole sector.

The very first Charities Act was the 1601 Act of Charitable Uses, often called the Statute of Elizabeth. It was necessary because Queen Elizabeth I's father, Henry VIII, had dismantled the previous social security system on the grounds that monasteries should be subordinate to secular government. Since then, the development of charity law has been left in the hands of the courts. Charity always seemed too messy and difficult a subject for Parliament and statute law.

So the new Bill is the first serious attempt by Parliament in 400 years to establish a coherent basis for the relationship between charities and the state. But parts of the charities lobby - especially those involved in health and education - have spent a lot of time trying to preserve the status quo. They prefer the vagaries of the courts and common law to any specific definitions by Parliament of what their objectives should be.

The watchword has been 'independence', but these charities are not remotely independent. Because they carry out functions that are also the responsibility of government, they are increasingly subject to the sort of regulation that the public demands: in schools, on child protection and the curriculum; and in health, on clinical practice and hygiene. A more reasonable objective than 'independence' would be a protocol guaranteeing a decent measure of autonomy.

The talk of independence stems from nervousness about what 'public benefit' will turn out to mean and how high the hurdle will be for fee-charging charitable schools and hospitals to surmount. They seem convinced that judges will be better fixers of the height of the hurdle than Parliament. They seem to have got their way so far, but it could be a grave mistake.

Initially, the definitions of public benefit and independence will fall to the newly constituted Charity Commission, which might turn out to be somewhat less independent than the Bill purports to make it. Robust statutory guidance endorsed by Parliament could well represent a far stronger protection against ministerial nudges and winks to the commission - and would provide far greater transparency for the future than common law precedents and interpretations of transitory judges.

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