The long-awaited reform of the law on charities should allow them to play an advocacy role and develop new structures, writes Justin O'Brien
The reform of charities legalisation and regulation is long overdue.
A commitment to reform is one of the many recommendations of the Government's White Paper on Supporting Voluntary Activity, published in 2000. The report offers a framework to enhance voluntary activity and the statutory-voluntary sector relationship.
It reviewed the changing nature of voluntary/charitable activity and issues of funding, structures and principles that could promote good standards and practices for both sectors. But many of its recommendations have yet to be fully implemented.
In the Programme for Government of June 2002 the Government undertook "to reform the law relating to charities", and in Sustaining Progress to "both reform the legislation and to have public participation in the formulation of regulation for the sector".
The newly-created Department of Community, Rural and Gaeltacht Affairs was given responsibility for the promotion of the new legislation. As part of this process a Consultation Paper on Establishing a Modern Statutory Framework for Charities was launched in December 2003.
The consultation paper provides information on the current status, the overall policy aim, a new definition of charity, the registering of charities, and a regulatory framework for charities.
The current definition of charity is based on common law interpretation and the so-called "Pemsel categories" (1891) which covers:
r the relief of poverty
r the advancement of education
r the advancement of religion
r other purposes beneficial to the community not within the first three categories.
A new definition is proposed:
r the advancement of health, which includes the prevention and relief of sickness, disease or human suffering
r the advancement of education
r the advancement of community welfare, which includes the prevention and relief of poverty, distress or disadvantage; the care, support and protection of the aged and people with a disability; the care, support and protection of children and young people; and the promotion of community development
r the advancement of religion
r the advancement of the natural environment
r other purposes beneficial to the community, which include: the prevention and relief of suffering of animals; the promotion and fostering of culture; and the care, preservation and protection of the Irish heritage.
The term "advancement" is taken to include protection, maintenance, support, research, improvement or enhancement.
Clearly the new definition is more developed than the Pemsel categories and inclusive of current charitable and not-for-profit voluntary activity, and is to be welcomed.
But, while the consultation paper notes the independence of the sector, and the White Paper notes the advocacy role of the sector, the proposed definition does not explicitly recognise this role for the sector. This contrasts with the British government's consultation paper on charities, where it is stated that "charities perform a valuable role in campaigning for social change". Accordingly, the definition of advancement should include advocacy.
A separate category should be included - the promotion of human rights, conflict resolution and reconciliation.
This definition would embrace the advocacy role that modern charities often seek and could allow charities to emerge that would not be tied to service delivery and could engage in the promotion of human rights.
The inclusion of such a definition would be challenging for any state and would need appropriate regulation. The important distinction is between not allowing charities to have "political purposes" but to pursue "political activities", such as advocating changes in laws or in the policies of government in a balanced way and contributing directly to achieving their charitable aims.
It is notable that quite a few organisations the public may well perceive as being a charity are actually not registered charities. For example, groups such as Amnesty International are not registered charities while many fee-paying schools are. Interesting issues arise here as to what is the private and public benefit and the definition of and the criterion for public benefit that should apply to charities.
The consultation paper notes existing deficiencies in the regulation of charities: the absence of a body with specific responsibility for regulating charities, no complete register of charities, separate responsibilities across different State agencies - the Attorney General, the Revenue Commissioners, the Charity Commissioners, the Director of Corporate Enforcement, the Garda, the Valuation Office and the Probate Office - for aspects of a charity, and minimal regulation of fundraising.
The paper recommends there should be a statutory body for the regulation of charities whose primary functions might include determining charitable status and maintaining a registrar, regulating and monitoring charities, including fundraising activities, providing guidance to trustees and directors of charities, monitoring and investigating possible abuses, advising the Minister on charity legislation, issuing codes of conduct, best practice guidelines.
No one could reasonably disagree with such functions; the difficulty is that the consultation paper does not present the required institutional structure. It suggests the functions be assigned to an existing body or bodies, or that a new body named Caradas be established under the aegis of the Department of Community, Rural and Gaeltacht Affairs.
Equally, it is not very specific or detailed on the type of regulatory requirements that would apply in the above functions. The paper also recommends that all charities be obliged to register with the regulatory body and provide basic information on their activities.
Many voluntary groups fear an over-regulated sector that will inhibit concerned citizens organising to respond to needs they have identified. What the sector needs is appropriate definition, good governance, professional guidance and support, the provision of good practice and service to the beneficiaries and transparency to the donors.
The reform of charities legislation has been long overdue. The Law Society report, Charity Law: the need for reform, published in 2003, is a useful document, reviewing issues and regulations pertinent for the sector. And the commitment to reform is important for the sector, the State, and civic society.
Charities and not-for-profit organisations are extremely varied and diverse, ranging from small locally-based groups to self-help groups to large organisations that provide services on behalf of the State. The definition and regulation need to recognise and support this diversity, encourage charities to maximise their social and economic potential, and the contribution to beneficiaries and donors.
It is important that issues pertaining to the charities/voluntary/ community sector and the promised new legislation are discussed by all the stakeholders in our society.
Justin O'Brien, who has extensive experience of the voluntary sector, is chief executive of the new Circle Voluntary Housing Association. He is a member of the advisory group responsible for overseeing the implementation of the White Paper on Supporting Voluntary Activity