Regulatory Reforms: England and Wales, Ireland, Northern Ireland and Scotland

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Aldous Owens
5 years ago
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1 egulatory eforms: England and Wales, Ireland, Northern Ireland and Scotland Modernising Charity Law Conference April 2009 Brisbane, QLD Australia Professor Kerry O Halloran Associate Professor The Australian Centre for Philanthropy and Nonprofit Studies School of Accountancy Queensland University of Technology Queensland University of Technology

2 The egulatory eforms and Transferability Following the lead given by England & Wales, the main changes to the regulatory framework in each of the other three jurisdictions of these islands have been: Establishing a new independent regulatory body Modifications to the role of the tax-collecting agency Setting up a egister of Charities, together with the introduction of new reporting and supervisory regimes Modifying the regulatory regime for fundraising Establishing a Charity Appeals Tribunal; and Adjustments to the traditional roles of trustees, High Court and Attorney General

3 The egulatory eforms and Transferability cont. However, these regulatory reforms, pioneered in England & Wales, did not wholly transfer to the neighbouring jurisdictions, nor have EC legal initiatives transferred to the UK and Irish jurisdictions.

4 egulating Charities a. The New Charity egulator The Charity Commissioners The Office of the Scottish Charity egulator (OSC) The Charity Commission for Northern Ireland (CCNI) In Ireland, the Charities egulatory Authority (CA)

5 Characteristics of the New Charity egulators Independence Promote public benefit Powers to supervise Hold accountable Support and protect

6 egulating Charities b. The egister of Charities Mandatory egistration Criteria Established for charitable purposes Satisfies the public benefit test Non-registerable if exempt, excepted or detrimental (in Scotland and N. Ireland) egistering is a tool for: Enabling accountability and transparency Data collection Developing charitable purposes

7 egulating Charities c. Forums for sector involvement New regulatory framework is a product of gov/sector partnership Sector self-regulation: fundraising and tiered accounts Ireland in-built provisions for ongoing contribution from the sector through panels of sector representatives

8 egulating Charities d. Transferability The Charity Commission model, although very expensive, broadly transferred to other UK and Irish jurisdictions.

9 egulating the Fiscal Environment a. Charity Appeals Tribunal In England and Wales, the Charity Tribunal In Ireland, the Charity Appeals Tribunal In Northern Ireland, Charity Tribunal In Scotland, Scottish Charity Appeals Panel A cheaper and quicker means of reviewing regulatory decisions

10 egulating the Fiscal Environment b. ole of the High Court and Attorney-General High cost, lengthy duration of proceedings and unwelcome publicity led to marginalisation of Court. It can and does hear cases where proceedings are initiated by or against a charity, involve complex legal issues or are on appeal from the Commission or Tribunal The Court continues to exercise it s powers to make cypres schemes for the administration of charities Parens patriae powers largely transferred from AG to Commission

11 egulating the Fiscal Environment d. Transferability The Irish Tribunal has a much narrower remit than its UK counterparts. The revised roles of Court & AG have wholly transferred to N Ireland but to a lesser extent to Scotland & Ireland.

12 egulating for Good Governance a. esponsibilities of Trustees Must ensure that: charity s mission and planned activities are within its purposes; that it remains independent; that proper accounts are kept; and annual reports on activities submitted to regulator. UK jurisdictions have modern legislative framework, updated by new charities statute. In Ireland, new provisions grafted onto the law as stated in the Trustee Act Some permissive provisions introduced to relax traditional constraints.

13 egulating for Good Governance b. Controlling and advising trustees New interventionist powers introduced in England & Wales and Northern Ireland to suspend, remove and replace trustees, to directly deal with charity property, issue directions for trustees to take specific actions, and to enter charity premises and seize documents.

14 egulating for Good Governance c. The Charitable Incorporated Organisation Introduced in all jurisdictions except Ireland. Better suited to give effect to charitable purposes. Can be established with limited or unlimited liability but only for charitable purposes. Intended to streamline governance, reduce the personal liability of trustees and simplify the regulatory burden.

15 egulating for Good Governance d. Transferability Control powers in respect of trustees largely failed to transfer to Scottish Commission while in Ireland only transferred power is to enter premises and seize documents. The CIO structure transferred to all UK jurisdictions but not to Ireland.

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