Those who have read the previous post on the Exclusive Brethren may be interested to know that the transcript of the 30 October 2012 evidence session on the Regulation of the Charitable Sector and the Review of the Charities Act 2006 at which the Exclusives gave evidence is now available here. Following is a helpful summary prepared by my colleague Caroline Antoine – to whom my thanks.
First session: The witnesses were Matthew Burgess (General Secretary, Independent Schools Council) Francesca Quint (Radcliffe Chambers) and Philip Kirkpatrick (Bates, Wells and Braithwaite).
The first session focused on what defines a charity and the meaning of “public benefit”. The witnesses agreed that the 2006 Act clarified the fact that the public benefit principle was an essential part of charitable status. However, they were reluctant to give it a clear, established statutory definition. They argued that charity law was a dynamic concept and that what was currently regarded as charitable and as having a public benefit might evolve. Francesca Quint explained that “… the purpose of the charity should be directed at the benefit of the public, and that can be a direct benefit to the public […] or it can be an indirect benefit to the public”. Philip Kirkpatrick added that it would not be reasonable to “… expect that an Act of Parliament could clarify 500 years of very varying case law”.
Moving on to the issue of the charitable status of independent schools, Kelvin Hopkins asked the witnesses whether access to tax relief should be separated from charitable status and whether charities should receive grants instead. Witnesses were strongly opposed to this idea. Philip Kirkpatrick argued that tax reliefs were an incentive that generates large amounts of personal giving.
The witnesses were asked whether Parliament should revisit the Act to make it clear that in order to acquire charitable status, independent schools needed to benefit the public. They did not regard this as a good idea because Parliament would need to revisit the Act in relation to all fee-charging charities; and Philip Kirkpatrick expressed his concern about the effect this would have on care services. They also turned down the idea of Parliament producing “a taxonomy of organisations that should be charities” because the situation will evolve.
Second session: The witnesses were Garth Christie and Bruce Hazell (Elders, Plymouth Brethren Christian Church) and Nicola Evans (Senior Associate, Bircham Dyson Bell). The second session dealt with the particular case of the Exclusive or Closed Brethren and the refusal of charitable status by the Charity Commission.
The Brethren are an evangelical movement based on the principle of separation; and members of the Select Committee argued that the Commission’s refusal to grant the Brethren charitable status might be linked to that principle. However, Garth Christie and Bruce Hazell said that they made it clear to the Charity Commission that members of the public were free to attend their services. They also produced a document entitled Public Benefit: the Plymouth Brethren Christian Church which contains examples of what the organisation has done for the wider public.
Mr Christie and Mr Hazell recognised that it could be hard for the Charity Commission to assess charitable status. In their opinion, it was up to Parliament to make the law clear, based on decided cases and history. They were also in favour of harmonisation so that a UK-based charity would be recognised as such everywhere in theUnited Kingdom.
As to the law, Nicola Evans explained that the removal of the presumption of public benefit in the Charities Act 2006 had opened an area of doubt. To assess the public benefit test, the Charity Commission needed to look at case law; and case law relying upon presumption might no longer be a good precedent. Bruce Hazell added that the Brethren believe that the problem they were now facing “stem from a lack of clarity arising from the Act, combined with the statutory obligation placed on the Charity Commission to produce public benefit guidance”. However, Nicola Evans expressed the same concern as did witnesses during the first session about establishing public benefit criteria that would make the law too rigid.