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Law Commission to conduct its own review of charity law

Governance | Tania Mason | 25 Nov 2011

The Law Commission has indicated that it plans to examine charity legislation after Lord Hodgson has concluded his review of the Charities Act, and there may even be another draft charities bill produced in 2015.

Nicola Evans (pictured), senior associate at Bircham Dyson Bell, told a Charity Law Association members’ meeting yesterday that “charity law has been confirmed as one of the areas that the Law Commission will look at, starting in late 2012, after the Charities Act review, and the timetable will take us through to late 2015 when there is a possibility of a draft bill”.

The Charity Law Association is to conduct its own review of the Charities Act, to run in parallel with Lord Hodgson’s review and the NCVO’s review.  Evans told the meeting yesterday that 46 lawyers had applied to be part of the working party, and so it would comprise 20 members plus a wider email advisory group of 28.

Several umbrella bodies had also expressed an interest in feeding in to the CLA review, including Charity Tax Group, Charities Property Association, Association of Charitable Foundations and the Association of Charitable Organisations.

“The NCVO review will take a policy-driven approach, whereas we will be taking a legal approach,” Evans said.

She explained that the CLA working party hoped to come up with solutions to various tricky issues around charity law, and had divided topics up into four categories: controversial, important but difficult to implement, easy wins, and issues that just require clarification.

The biggest list is the ‘controversial’ category, she said, containing topics such as the definition of charity, public charitable collections, the Charity Commission, the Charity Tribunal, and political activity.

Evans urged the assembled lawyers to ensure they have an input into the CLA review, because it will have a bearing on the Law Commission’s subsequent review.  “We do know that the Law Commission is definitely going to look at this. If we get a draft bill and it goes to an Act, we’re looking at 2018 maybe and that’s quite a long way away.

“We’ll only get that draft bill if, in 2014, both the Law Commission and the government think it’s appropriate.  So that’s why we really need the sector and all of you to engage in the process. And if we think we want reform, we need to persuade government why it is appropriate that we should get our draft bill. So do please engage with the process.”

Neverending uncertainty

But not everyone was happy at the prospect of further reviews. Peter Smith, a barrister at Radcliffe Chambers, said: “My heart sinks when I see yet another review from the Law Commission coming round. When is it going to end? This sector of the law, now more than anything, needs a degree of certainty, which it does not have.”  

He went on: “It is extremely difficult to advise clients who are setting up charities for considerable time in the distance, what the law is going to be in perhaps only five or ten years time. There does come a time when you have to say, whether it is brilliant or not, stop and let’s work with it. If there are problems, let the courts or the tribunal or whoever, sort it out - as we do with any other form of legislation. How are we going to cope with this uncertainty going on throughout the next ten years?”

His view was not shared by his colleague Francesca Quint, also from Radcliffe Chambers, however. She said it was “very good news” for the sector that the law is changing and that charities can have an input into new legislation. “It’s much better than waiting for judges to lay down the law from on high,” she said.

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