John Larkin, the Attorney General for Northern Ireland, has advised ministers not to amend the country's Charities Act, despite warnings from lawyers that it is subject to challenge.
Ministers in Northern Ireland are in talks about amending the law, which contains some public benefit provisions from the Charities Act 2006 that applies to England and Wales, and some from the Charities and Trustee Investment (Scotland) Act 2005. Lawyers have claimed the provisions are contradictory.
But Third Sector has learnt that Larkin advised Alex Attwood, the minister for social development, to avoid passing new primary legislation to clarify the meanings of charity and public benefit in the act. He said the existing legislation should be allowed to stand and could be challenged in the courts if the need arose.
The Charities Act (Northern Ireland) 2008 says a charitable purpose is "a purpose which is for the public benefit", the same definition used in the Charities Act 2006, which applies to England and Wales.
But the Northern Irish act also includes text from the Scottish act, which says an organisation wanting to register as a charity will be assessed on whether it "provides or intends to provide public benefit". The inclusion of both statements means it is unclear whether an organisation applying for charitable status in Northern Ireland would be assessed on the grounds of its stated purposes or the activities it carried out.
In a statement, a spokesman for the Department for Social Development said: "Conflicting legal opinions exist on the interpretation of the Charities Act 2008. The department is preparing subordinate legislation and transitional provisions that will enable Northern Ireland's Charity Commission to commence some of its regulatory functions. These should be in place by the end of 2010."