The organisation has been established for three types of members; those who are employed by a charity, those who volunteer for a charity, and other “volunteers”. I didn’t bother to sign up, but I did wonder whether there might be a slight problem of definition – and in saying so, I emphatically do not intend to disparage the Charity Worker Discounts site in any way. But do I qualify as a “charity worker” or a “volunteer”?

I’m a member of three academic editorial boards, two of which involve being a trustee of the legal charities that publish them (just in case you thought this had nothing to do with law and religion). That entails quite a lot of work, not least because – as every trustee should – I take my trustee duties very seriously. I also ring at my local parish church, which means I spend about two hours a week in the ringing-room. So under the current charity law, all that is, presumably, some kind of “volunteering” for “charity”.

But is that how people generally would perceive it? I suspect that, if it ever crossed their minds to ask the question at all, few would associate publishing an academic journal and helping to run a small learned society with “charity”, and not many more would think of bellringing as a charitable activity. Why? – because, in my view at any rate, in neither case is the public benefit very obvious. I should like to think that if the Ecclesiastical Law Journal or Law & Justice folded it would be a loss to the academic community and I would hope that at least some people would miss the sound of church bells if there was no-one around to ring them on Sundays – but neither is exactly on a par with running a food-bank or volunteering at a day-care centre or sitting at the end of the Samaritans’ phone-line.

The problem – if there is, in fact, a problem and I’m not just seeing difficulties where none exist – dates back to the charity legislation of the 2000s. The Westminster Parliament, the Scottish Parliament and the Northern Ireland Assembly (and, for that matter, the Irish Parliament) all introduced fairly radical reform of charity law; and all four pieces of legislation raised the bar considerably on the public benefit test. In doing so, however, though all four removed the previous presumption of public benefit – which dated back to the Preamble to the Elizabethan Statute of Charitable Uses 1601 – they put little or nothing in its place in terms of a definition.

In its report in Session 2013–14 on The role of the Charity Commission and “public benefit”: Post-legislative scrutiny of the Charities Act 2006 (which by then had been consolidated into the Charities Act 2011), the House of Commons Public Administration Select Committee was obviously unhappy with the way the legislation was operating and went so far as to recommend that the presumption of public benefit be restored:

“85. Parliament should be under no illusion about the scale of the task it presented to the Charity Commission when it passed the Charities Act 2006, which required the Commission to produce public benefit guidance without specifically defining ‘public benefit’. This has had the effect of inviting the Commission to become involved in matters such as the charitable status of independent schools which has long been a matter of party political controversy.

86. In our view, it is for Parliament to resolve the issues of the criteria for charitable status and public benefit, not the Charity Commission, which is a branch of the executive. In this respect the Charities Act 2006 has been an administrative and financial disaster for the Charity Commission and for the charities involved, absorbing vast amounts of energy and commitment, as well as money.

[…]

93. We recommend that the removal of the presumption of public benefit in the 2006 Charities Act be repealed, along with the Charity Commission’s statutory public benefit objective. This would ensure that no transient Government could introduce what amounts to substantive changes in charity law without Parliament’s explicit consent. If the Government wishes there to be new conditions for what constitutes a charity and qualifies for tax relief, it should bring forward legislation, not leave it to the discretion of the Charity Commission and the courts” [emphasis in original].

Needless to say, nothing whatsoever has come of the recommendation; but even if it had, merely reversing the public benefit provision in what is now the Charities Act 2011 (and the equivalent Scottish and Northern Irish legislation) and reverting to the status quo ante without putting anything positive in its place will not – in my view at least – fix things. I would argue that the problem of perception remains and that, at some point, Government is going to have to address the issue of what can be legitimately regarded as a charitable endeavour and what exactly constitutes “public benefit” in the 21st century. Desperately short of resources as it is, it is simply unrealistic to hope that the Charity Commission for England & Wales (or, for that matter, OSCR or the CCNI) will be able to sort it out.

Frank Cranmer