Modernising Charity Law

Modernising Charity Law

Recent Developments and Future Directions

Edited by Myles McGregor-Lowndes and Kerry O’Halloran

In recent years the pressure for charity law reform has swept across the common law jurisdictions with differing results. Modernising Charity Law examines how the UK jurisdictions have enacted significant statutory reforms after many years of debate, whilst the federations of Canada and Australia seem merely to have intentions of reform. New Zealand and Singapore have begun their own reform journeys. This highly insightful book brings together perspectives from academics, regulators and practitioners from across the common law jurisdictions. The expert contributors consider the array of reforms to charity law and assess their relative successes. Particular attention is given to the controversial issues of expanded heads of charity, public benefit, religion, competition with business, government participation and regulation. The book concludes by challenging the very notion of charity as a foundation for societies which, faced by an array of global threats and the rising tide of human rights, must now also embrace the expanding notions of social capital, social entrepreneurism and civil society

Chapter 1: Charity Law Reforms: Overview of Progress Since 2001

Kerry O’Halloran, Bob Wyatt, Laird Hunter, Myles McGregor-Lowndes and Michael Gousmett

Subjects: law - academic, comparative law

Extract

Kerry O’Halloran, Bob Wyatt, Laird Hunter, Michael Gousmett and Myles McGregor-Lowndes INTRODUCTION In the UK, Singapore, Canada, New Zealand and Australia, as in many other jurisdictions, charity law is rooted in the common law and anchored on the Statute of Charitable Uses 1601.1 The Pemsel 2 classification of charitable purposes was uniformly accepted, and together with a shared and growing pool of judicial precedents, aided by the ‘spirit and intendment’ rule,3 has subsequently allowed the law to develop along much the same lines. In recent years, all the above jurisdictions have embarked on law reform processes designed to strengthen regulatory processes and to statutorily define and encode common law concepts. The reform outcomes are now to be found in a batch of national charity statutes which reflect interesting differences in the extent to which their respective governments have been prepared to balance the modernising of charitable purposes and other common law concepts alongside the customary concern to tighten the regulatory framework. THE UNITED KINGDOM The Charities Act 1960, introduced by Westminster and largely replicated in the other jurisdictions of the UK, laid a roughly common baseline for law and practice in the latter part of the 20th century. In England and Wales, the Charity Commissioners (established under the Charitable Trusts Act 1853) had their powers extended by the Charities Act 1960 and further by the Charities Acts of 1992 and 1993. In Scotland, the specific regulation of charities is of more recent origin.4 The first statute regulating ‘Scottish charities’...

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