The International Journal
of Not-for-Profit Law

Volume 4, Issue 2-3, March 2002

By Dr. Kerry J. O’Halloran *

Introduction

The unspeakable events in New York and Washington on 11th September triggered responses from many different quarters. Academics are among those who have felt pushed to reflect. The present writer is such an academic but the content of this article has not been shaped by those events. In an earlier article (IJNL, Volume 1, Issue 3) the IJNL readership had been briefed about the imminent launch of a charity law research project in Northern Ireland to be conducted by the Centre for Voluntary Action Studies located in the School of Policy Studies at the University of Ulster 1 . A follow-up article on the research findings was promised. The project was completed in the summer of 2001 and a research report, Charity Law Matters, duly published. Preparatory work for this, the promised article then commenced and was well underway before the 11th September. The events of that day have, however, prompted a new look at the significance of some of the findings.

The following article is in four parts. It begins with a reminder as to the rationale for the project and then provides a brief account of the methodology and the actual research process. The second part deals with the data retrieved and outlines the project’s main findings. The third part broadly states the conclusions reached and itemises the report’s recommendations. The final part turns to examine some aspects of the research which, to the writer, have acquired an added salience in the light of the events of the 11th September. This concluding section deals with only one aspect of the research process and resulting findings, itself wholly derived from the singular cultural context of Northern Ireland, but is tentatively offered as a legitimate extrapolation with implications that transcend its origins.

Inevitably, a health warning has to be attached to the final part. The dislocation to a sense of scale and even to rational thought, that accompanied the events of that day, may also prevail in articles such as this.  An instinctive and positive urge, to try and make logical connections that could contribute towards an explanation, runs the risk of being accused of failing to take into account the depth of nihilism associated with those capable of perpetrating such acts. This article is written with a hesitancy to touch upon the recent trauma of others and with a concern not to overstate, from an academic perspective, an interpretation of the functions and failures of law which can offer nothing to those dealing with the practicalities of shock, suffering, and loss.

(A) The Research Project

In 1998 the Centre for Voluntary Action Studies decided to undertake a modest charity law research project. The total funding available was less than $50,000, sufficient only for the employment of a temporary part-time research officer. Management of the project rested jointly with Dr Arthur Williamson, Centre Director, and the author. It generated a number of publications 2 and concluded in a conference/book launch on June 26th 2001.

Rationale

The reason for embarking on this project was an awareness that the legal framework for charitable activity in Northern Ireland was quite different from any comparable framework elsewhere in the United Kingdom coupled with a curiosity as to the resulting practice implications for this jurisdiction.

The modern charity law framework for all jurisdictions in these islands was established by that formative Westminster statute – the Charities Act 1960. Although this was naturally restricted to England and Wales, it provided a template for subsequent legislation in Scotland, in the Republic of Ireland, and also in Northern Ireland. It came to provide a common baseline for regulating charitable activity within these islands.

However, as time passed, all other United Kingdom jurisdictions further developed that template until the relevant legislation remained most dated in this jurisdiction.  In England and Wales, the law is now as stated in the Charities Act 1993. In Scotland it is to be found in the Law Reform Act 1990 and in the Charities Accounts Regulations 1992. Both jurisdictions have recently concluded reviews 3 , and the Republic of Ireland is now doing so, which will result in further legislative changes in those jurisdictions. In Northern Ireland, however, the law remains framed by the Charities Act 1964 and supplemented by the Charities Order 1987. In other words, the current charity law framework in Northern Ireland, unlike any of the neighbouring jurisdictions, remains essentially as stated by Westminster in the 1960s.

In Northern Ireland, as in its neighbouring jurisdictions, the voluntary sector and the charitable activity within it have greatly changed since the introduction of the 1960s legislation. However, unlike the other jurisdictions, charity law in Northern Ireland remained unchanged. Clearly a research focus was required to examine how this jurisdiction responded to the same issues facing its neighbours without the benefit of the adjustments to the charity law framework, which they had been obliged to introduce. This gave rise to two research questions. Firstly, does the legal framework, within which this jurisdiction’s many thousands of charities now operate, remain appropriate to support and promote their activities? Secondly, does it continue to provide an effective means for regulating their activities?

In addition to examining the appropriateness and effectiveness of charity law in Northern Ireland, the project also had to consider its adequacy in the light of the particular stresses, which have characterised this jurisdiction for the past 30 years. That is, a distinct research focus was needed to highlight how the charity law framework in this jurisdiction responded not just to the pressures which affected it in common with other jurisdictions in these islands and indeed elsewhere in the common law world, but also to those singular pressures which differentiated it from its neighbours. This gave rise to a third research question: does the existing charity law framework offer a sufficient means of responding to the characteristic and indigenous social problems in Northern Ireland? It was this particular focus that prompted the reflections on alienation addressed in part four of this article.

Project Design, Methodology & Process

At the outset the charity law project had three main aims. Firstly, it sought to map the nature and extent of the lack of fit between charitable activity and charity law within this jurisdiction. Secondly, it set out to identify and compare the distinctive characteristics of current Northern Ireland charity law with those of the other United Kingdom jurisdictions and to assess the significance of the differences. Finally, it attempted to evaluate the wider social policy implications which arise for managing the interface between government and the voluntary sector in Northern Ireland as a consequence of the particular legislative deficit.

Phase 1 of the project examined the development of charity law in Northern Ireland.

This phase provided:

• a legislative record since 1920
• an account of significant case law developments
• an identification and assessment of those trends in charitable activities with a significant legal dimension, and
• a statement of the law as of 2001.

This part of the study, by way of background, placed on the record a history of the development of the law governing charitable activity in Northern Ireland. It considered the different legal forms, which give effect to charities; it stated and examined the current law under the four Pemsel heads 4 and dealt specifically with the key areas of cy-pres, fundraising, tax and rates. Particular attention was given to the responsibilities of certain agencies such as the Charities Branch, 5 which are central to the implementation of charity law in this jurisdiction. It identified and assessed the current distinctive jurisdictional characteristics of the law and related these to emerging trends in charitable activity. It provided a basic route map to the current and more problematic areas of charity law. In doing so it compared the distinctive characteristics of Northern Ireland charity law with those of other United Kingdom jurisdictions and assessed the significance of the differences.

This was the desk-bound phase of the project. A preliminary literature review informed the subsequent search for source material that largely focussed on identifying the precedents and legislation necessary to compile a history of charity law in this jurisdiction.

Phase 2 of the project considered the appropriateness and effectiveness of the present charity law framework from the perspective of those most closely involved in charitable activity within that framework.  This phase presented the views of practitioners and legal professional on such key issues as:

1. regulatory powers
2. incorporation
3. fundraising
4. accountability of boards
5. definition of charitable activity
6. taxation & management of finance
7. inter-jurisdictional matters.

It began with an overview of the charitable sector in Northern Ireland and offered a profile of the sector’s main characteristics. It then presented the views of some chief executive officers of charities and some leading charity law professionals on matters such as those listed above.

The profile of the charitable sector was compiled from the results of a postal questionnaire survey of 250 bodies taken from a database supplied by the Northern Ireland Council for Voluntary Activity (NICVA) 6 . Their main charitable purposes were the relief of poverty (32%), the advancement of education (11%) and the promotion of health (7%).   Just over two thirds (67%) provided services and just over one-third (37%) provided caring services.  A further 22% of organizations were involved in promoting community involvement and 11% provided information, education or training.

The views of chief executive officers were elicited through a series of interviews with the leaders of charitable bodies. These were conducted in person, using a semi-structured interview schedule, with the chief executive officers of charities selected on the basis of a sample stratified according to size, rural or urban location and field of activity. Twenty-five such interviews were conducted.

Phase 3 of the project examined the implications for greater accountability in the relationship between the government and the voluntary sector. The significant practice problems identified in earlier interviews served to inform a final phase of interviews with leading lawyers and other professionals. This phase focused on themes such as:

• Professionalism
• Registration & inspection
• Charitable activity
• Political purposes

Again, a questionnaire was constructed around these themes and administered to 25 leading lawyers and other professionals with expertise in charity law. These were conducted in a fashion similar to that employed with the chief executive officers. Those interviewed included solicitors, accountants and a High Court judge, together with officials from relevant agencies such as the Charities Branch, the Valuation and Lands Agency 7 and the Inland Revenue 8 . This exercise enabled us to identify the singular implications arising for the legal standing of charities in Northern Ireland as a consequence of present legislative deficiencies. In particular it provided evidence to demonstrate the nature and extent of fundamental changes occurring to the definition of charitable activity, the accountability of charitable organisations, and to the role of the volunteer.

(B) Project Findings

This project gathered information in four different areas and the following brief synopsis summarises the main findings from each.

1. Findings from study of charity law framework 

1. The statutory basis for charity law in Northern Ireland is now very dated and out of synch with some practice developments within the jurisdiction and with the law of all other United Kingdom jurisdictions.
2. The law is particularly deficient as regards systems for registering and regulating charities and for supervising fundraising activities.
3. Definitional issues exist relating to the meaning of charity and to matters constituting ‘public benefit’.
4. Financial thresholds for many proceedings need to be raised particularly as regards cy-pres schemes.
5. There is a need for a more functional co-ordination between the various government bodies involved in dealing with Northern Ireland charities.

2. Findings from postal questionnaire survey of charitable sector

1. Most charities in Northern Ireland are of relatively recent origin, are small and incorporated and are indigenous to this jurisdiction.
2. Charitable trusts are the primary funding source, public donations and grants are also significant.
3. Most charities are dependent upon service delivery contracts with government bodies.
4. Problems with VAT and with rates affect a significant number of charities.
5. A large proportion of charities engage in advocacy/lobbying activities, a relatively small proportion provide representation and engage in trading.
6. User representation on management boards is widely practised.
7. Nearly half of the sample were satisfied with the present legal framework.

3. Findings from questionnaire interviews with chief executive officers of charitable organizations

1. Public confidence and trust in charities are perceived as decreasing.
2. The majority were in favour of a registration system.
3. More were in favour of a regulatory system than were against it.
4. Fundraising was a matter of great importance and was perceived as problematic, particularly as regards professional fundraisers.
5. The company limited by guarantee was the preferred legal vehicle for a charity.
6. Considerable uncertainty exists regarding the legal responsibilities of trustees and volunteers.
7. There is evidence that the ‘contract culture’ affects the independent advocacy role of charities.
8. There is some degree of confusion and disquiet regarding the present legal definition of ‘charity’, in particular the fact that peace and reconciliation is not charitable was a significant concern.
9. There was disquiet regarding the present rules governing VAT exemption.
10. There was a strong perception that little in the way of professional expertise was available to charities from solicitors, accountants or from government bodies.
11. Commercial ventures are important for charities but for many this is often an area of legal uncertainty.

4.  Findings from questionnaire interviews with lawyers and other professionals

1. The introduction of a system for registering charities was favoured by the majority but opposed by a significant minority.
2. It was unanimously held that all charities should be compelled to file annual accounts and the view was almost unanimous that a system should be introduced for regulating the financial affairs of charities.
3. There was a perception that charities may be tempted to set up in Northern Ireland in order to avoid the restrictions imposed by the regulatory systems of other United Kingdom jurisdictions.
4. The view of the majority was that at present the affairs of charities were insufficiently scrutinised by the Inland Revenue, the Charities Branch, and all other government agencies.
5. The fact that bodies seeking charitable exemption must apply to a plethora of uncoordinated agencies and satisfy the different range of definitional tests applied by each was a significant source of concern.
6. The majority view was that at present the law unduly restricted the work of charities.
7. It was unanimously held that a distinction should be maintained between not-for-profit and charitable bodies.
8. A significant proportion considered that the law relating to charities’ political activities, peace and reconciliation work, community development initiatives, trading activities and entitlement to VAT and rates exemption should be made less restrictive.
9. There were concerns regarding the adequacy of fundraising legislation.
10. The majority view was that a very low level of knowledge about charity law pertained among professionals in general and also among trustees.

(C) Project Conclusions & Recommendations

The body of material accumulated by this research project will help to signpost the direction for future law reform in Northern Ireland. However, the project’s conclusions indicate that no programme of reform will be adequate if it fails to address certain key areas.

1. Project conclusions

Firstly, there is a need to examine definitional matters such as status, public benefit, charitable purpose, and legal form. Secondly, there is a need to address functional matters such as fundraising, trading, and public service provision. Thirdly, there are procedural matters such as the operation of cy-pres, judicial jurisdiction, and the respective roles of the Charities Board, the Inland Revenue, and various other government bodies.  Fourthly, there is also the need to ensure that indigenous cultural matters are catered for. After all, any Northern Ireland charity law review with integrity must not only aim to achieve parity with neighbouring jurisdictions in terms of appropriate and effective legislation but must also strive to recognise and address the particular social tensions that have fractured this community over the past several decades (see further below). The main conclusions, however, concern registration and regulation.

The conclusions point clearly to the need for a system of registration. The lifespan of charities varies greatly; some exist for centuries, others for days. In Northern Ireland, many hundreds of new charities appear every year and perhaps as many cease to exist. It would be difficult to design any system, which could provide a definitive record of current ‘live’ charities. However, the present situation, where no responsibility rests upon any government body to maintain a register of such organizations, is unhelpful. The argument for registration could rest entirely on the point that eligibility for money from the public purse should be accompanied by an obligation to disclose to the public the identity and status of the recipient.

There is also a public confidence argument. The confidence and trust that the general public want to place in charities could only be boosted if some means were available for members of the public to choose, access, and challenge charities. They in turn have nothing to lose from subscribing to a list of bodies engaged in laudable public benefit activity. The list will instil confidence only if it carries the stamp of government approval; because it has to serve the function of providing a record of ‘live’ and verified charities, it has to be both formal and mandatory. The public and all relevant agencies will then be able to check the credentials of any organization engaged, or purporting to be engaged, in charitable activity. Clearly, the degree of public confidence will be proportionate to the standing of the list: the more complete, up-to-date and impartially, but thoroughly, vetted the greater will be the reliance upon it; the fewer categories of ‘excepted’ or ‘exempt’ charities, the more public credibility it will attract.

Secondly, the conclusions point to the need for a system of regulation. In Northern Ireland, many charities are already subject to a regulatory regime. Increasingly, charities are opting for company status and accepting the scrutiny from the Registry that goes with it. However, very many remain unincorporated and even when a charity does become a company it is then scrutinised from the perspective of compliance with company law rather than charity law. Charities, or bodies purporting to be charities, may came to the attention of such relevant local agencies as the police, the Inland Revenue, the Valuation and Lands Agency or the Charities Branch for conduct which is particular to the remit of that agency.  But no one body holds an inspection brief to detect bad practice in respect of all charities. While all charities are subject to the overview of the Charities Branch, this is essentially a facilitative rather than a regulatory remit; although the agency does have some interventionist powers, they are exercised in a reactive rather than proactive fashion. Currently, there is no regulatory system specifically for charities in Northern Ireland.

Again, the inescapable point is that this jurisdiction is no more immune than any other in the United Kingdom from the type of abuse and irregularity in the affairs of charities that has necessitated the introduction of a regulatory system in those other jurisdictions. Abuses and irregularities have already been detected among some charities in Northern Ireland. It is those remaining undetected and the knowledge that no system exists for their detection, which must cause most concern.  Arguably, as the existing regulations in England and Wales together with the proposed regulations in Scotland become more effective, so the probability increases of charity abuse being shifted to Northern Ireland.

2. Project recommendations

The following is a brief synopsis of the main recommendations.

A formal review of charity law in Northern Ireland should be undertaken as a matter of some urgency if this jurisdiction is to avoid being relatively disadvantaged by legislative developments occurring in all other jurisdictions of these islands.

1. The review should provide for on-going consultation with the voluntary sector, it should ensure representation from the voluntary sector and especially from charities but the process should not itself be determined by any such representation.
2. The review should be informed by the findings of similar reviews conducted in other common law jurisdictions 9 , particularly as regards their treatment of definitional matters, and should seek opportunities to maximise parity of legislative provision with all other jurisdictions of these islands.
3. As a priority, the review should give attention to the need to frame legislative provisions for the introduction of systems to register and regulate charities and their activities including the uniform and mandatory application of SORP.
4. The review should also focus with some urgency on the adequacy of the legislation currently governing fundraising in its many modern manifestations.
5. Consideration should be given to clarifying, simplifying and co-ordinating the functions of the various government bodies involved with charities, particularly as regards the rules governing entitlement to exemption from liability for tax and rates.
6. The review should address the widespread uncertainty regarding charity law by ensuring that a specified government body, such as the Charities Branch, is statutorily required and then appropriately funded to become a pro-active resource centre for charities and provide the information, support and expertise necessary to advise on the law and inform good practice throughout the sector.
7.  The review should revise the financial thresholds determining access to procedures; in particular the current cy-pres limit for Charities Branch intervention should be greatly increased or removed.
8. Attention should be given to the implications arising for the independence and traditional advocacy role of charities from the fact that in this jurisdiction the latter would seem to be more dependant upon government funding than their counterparts elsewhere in the UK.
9. The review should also adopt a distinctive jurisdiction specific approach by ensuring that new legislative provisions maximise opportunities for re-building civil society by, for example, providing for peace and reconciliation projects, encouraging community development initiatives, allowing for some level of political advocacy in favour of socially excluded minority groups and addressing the problems associated with unemployment and rural deprivation.

(D) Alienation

The following reflections on and around alienation have grown out of the last of the above recommendations and from the project-generated material underpinning it.

1. Charity and the Law

The strand in the project that addressed the culture specific characteristics of society in Northern Ireland seemed to emerge at a late stage and as an incidental concern. The further step of making a connection between thirty years of violent inter-community division, charities, and the charity law framework was never fully formulated. Why was this ‘elephant in the lounge’ factor almost overlooked? What prevents us from seeing and addressing a relationship between the structural causes of violence in a damaged society, the resources of charities and the charity law framework? Why the emphasis on effects rather than on causes?  I outline my thesis in the following discussion.

The Supplicant/Benefactor Dynamic

This symbiotic relationship, interminably associated with charitable activity generally, continues to haunt and challenge our perception of the meaning and role of charity in the modern world. Its significance, for present purposes, lies in the fact that it may also have contributed to the approach taken in the project.

This dynamic is initiated by the victim’s request for assistance; this in itself requires a capacity to subscribe to that role and to know where to direct the request. The categories of those from whom such requests may legitimately be received have long since been embedded in charity law. Pemsel, together with such new categories as can fit within the ‘spirit and intendment’ rule 10 to the satisfaction of the Inland Revenue, serves to provide the lens through which we view charitable purposes. Through this medium we identify the bodies upon which charitable status is to be conferred and recognise those ultimately entitled to charitable resources. It is an approach that may be fairly criticised for being focussed on the effects of social disadvantage rather than its causes. The charity law project, in keeping with many national reviews, proceeded to duly apply that lens and perhaps failed to take fully into account the matters that were already screened out.

This approach to charity is no longer defensible in the modern world. Indeed it is unlikely that it held much credence for previous generations; the Victorian ‘soup – kitchen’ response to poverty was often matched by political initiatives led by pressure from charities. Nowadays, many of our larger charities run or fund very professional research departments which generate and disseminate authoritative data to identify, measure and assess causal relationships between social need and effective resource deployment. This data is now available on a jurisdiction specific and on a global basis. It is used to lever local political change and by some charities to direct their overseas intervention.

The implications for the Northern Ireland project were that by applying the more traditional Pemsel approach it failed to grapple with the causes for the more distinctive patterns of social need characteristic of the jurisdiction.

The Common Law

The common law heritage, underpinning the statutory infrastructure of many modern western or westernised nations, including that of Northern Ireland, has proved to be an enduring asset. Some of its characteristic components have proved very serviceable. For example, the public benefit test has to some extent lent itself as a means for the flexible re-interpretation of what in law can be defined as charitable in the light of changing social and economic circumstances. However, charity law is also freighted with other common law characteristics of a less serviceable nature that may be obstructing its capacity to respond to the stresses typical of modern societies.

Firstly, the common law has always placed an emphasis on the rights and duties of the individual. Perhaps the single most distinctive common law characteristic found expression in the catch phrase ‘no writ no action’. This insistence on a case-by-case approach, a fixed reliance on precedent has, in this part of the common law world, resulted in a bar on class actions; rights and duties are required to be determined by the courts on a case by case basis.

Secondly, any extension of status in the common law is by analogy rather than by principle. The common law is typified by a rigidity of the specified, by fact-based rather than principle-oriented case law in which new cases can be accommodated only by distinguishing them from the old. The result can be seen in the endless lists and categories of purposes recognised as charitable, rather than in a coherent body of law, built around definitional statements and governed by clear principles. In charity law it is hard to see the wood for the trees.

Thirdly, the common law would seem to be predicated on maintaining the status quo in society. Most particularly it embodies a respect for social institutions, giving protection to: the government of the day, the place of religion and the Church, the role of the judiciary, and the prevailing social order.  It is not concerned with matters of public policy or contemporary politics but requires an almost feudal respect for king and for country and for the institutions of the land. This tends to induce a complicit relationship between charities and social institutions of the State.

Fourthly, there is a common law presumption that religious organizations should have charitable status.  In the increasingly secular societies of the modern common law world there has been considerable debate regarding the continued merits of such a presumption. There is an argument that in those countries where religion no longer functions as a ‘pillar of society’, and perhaps particularly in those where it is a divisive force, the activities of religious organizations should be subject to a more stringent and broadly based public benefit test before qualifying for charitable status.

Fifthly, the common law carries an assumption that the purposes of public service bodies and charities are coterminous. However, the retreat of the public sector and the devolving of responsibility for service provision to the voluntary sector has become a widespread phenomenon in the common law world. There is now a growing concern to clarify the distinction between the remit of government and charity in relation to public utility and the attendant respective responsibilities of government bodies and NPOs.

Sixthly, the respect for “king and country” and the institutions of the land continues to find expression in the specific prohibition on political activity by charities. This requires a fine distinction to be drawn between political purposes and charitable purposes. The distinction is not easily made: deprivation, homelessness, unemployment, civil liberties, animal rights, conservation, etc., are all matters which in practice are often the business of both politicians and charities. The hallmark advocacy role of charities on behalf of the disadvantaged can often shade into political lobbying; the former being permitted, the latter not. Charity law is now experiencing difficulties in accommodating any political activity by charities.

Seventhly, and finally, the common law was always a law based on rules accompanied by a complex system for levying and collecting fines. This led to an emphasis on administration rather than adjudication and to a fundamental concern with financial matters. In many ways the development of charity law has been driven by a concern to improve control of charity finances. The deep-rooted preoccupation of charity law with tax, rates, trading, and, more recently, with the contract culture and the intricacies of profit distribution illustrates this aspect of its common law heritage.

These characteristics, evident in the experience of other UK jurisdictions and in the common law nations across the world, prepared the ground for the Northern Ireland project. To some extent, the parameters and the focus of that project were set by the common law approach of other jurisdictions where charity law reviews were essentially driven by a need to modernise to achieve greater accountability, effectiveness and facilitate partnership arrangements between government and charities. This deflected attention from recognising and addressing an additional and distinguishing feature that characterises this particular jurisdiction viz that it is a society in conflict with communities locked into a long history of violent mutual estrangement.

2. Charity Law and Social Inclusion

Social inclusion is a modern sociological concept with ancient roots. In modern western societies it is applied to signify the political necessity that all minority groups together with the privileged majority are to be afforded equality of opportunity and treatment before the law. In Northern Ireland, as elsewhere in the United Kingdom, it is seen as having a specific application to those such as the disabled, the aged, children, lone parents, gay and lesbian groups, religious and ethnic minorities, and gypsies. However, this concept clearly applies both globally to relationships between privileged and disadvantaged societies and locally to the relationships between those groups within any one society.

Every modern western society is currently struggling to formulate and manage its indigenous social inclusion agenda. For each this priority is compounded by the need to simultaneously respond to the social exclusion agenda of other nations; currently most graphically illustrated in the ‘asylum seekers’ phenomenon. How this plays out on a national and international basis is crucial to our understanding of alienation and its consequences.

Alienation and Northern Ireland

The charity law project began with a concern to identify areas in which the law was ineffective (e.g. in the lack of provision for registering and regulating charities) or inappropriate (e.g. did not fit such contemporary charitable activity as facilitating urban regeneration or professional fundraising). At a later stage the project took on board the additional concern as to whether the law was also sufficient to meet areas of social need particular to Northern Ireland. As with any piece of research, the trick is to see what isn’t there.

Peace and reconciliation activities, for example, are not explicitly recognised as charitable purposes in Northern Ireland 11 . This is so despite the fact that no society in north-western Europe has, in recent decades, generated more violence, suffered more casualties and become more fragmented and aggressively polarised than the communities constituting this jurisdiction. The deep-rooted cultural divisions between the Catholic and Protestant communities, coupled with a myriad of factional divisions between their respective political and para-military representatives, are now distinctive characteristics of this society. Charity law has currently nothing to say about this situation: the law is not just insufficient but irrelevant; the issue has been left to political rather than to charitable intervention. The question is – what could or should charity law bring to societies that generate such violence?

The instability in this jurisdiction arose from the alienation of the Catholic minority, or its perception of alienation, from the institutions of the State. The role of institutions such as the police and the army, regarded as inspiring confidence and security in other communities, were viewed with distrust and often treated with open hostility by Catholics. Further, decades of submissive hopelessness may have served to distance parts of the Catholic community from the formal institutions that play an important role in any society, particularly one where unemployment and associated poverty have an enduring hold. Access, for example, to State social welfare, housing, and health agencies required a psychological concession to the State apparatus, which many may have felt unable to make. The role of the Churches, which attract a presumption of charitable status, and which control the resources, activities and orientation of a large proportion of Northern Ireland’s charities, in practice tends to provide for member benefit rather than cross-community benefit and thereby accentuates community divisions. In short, those institutions, regarded as contributing to civic cohesion and community security in other societies, have here been treated with resentment or suspicion by a large proportion of the Catholic minority.

This minority group was alienated from the State at least in the sense that they felt that its institutions did not “belong to them”, did not represent their interests, did not employ them and did not respond to their needs 12 . For some this bred a sense of oppression that they were subject to a State infrastructure, run for the benefit of others, which treated them as “outsiders”; this was bitterly resented. This seemed to lead to a situation where allegiance was given to alternative community based self-help networks which, as they grew stronger and more confidently self-reliant, became more aggressive. Once the situation had deteriorated to the point where conflict had broken out then a political rather than a charitable response was clearly necessary.

Arguably, however, charitable activity as defined by more relevant charity law provisions would have a bearing on this situation both before and after the conflict stage had been reached. In either case, the causes of alienation could be addressed by a charity law that, while being effective and appropriate, is also sufficient to accommodate the particular tensions in this society. Such a law would need to be sensitively attuned to the conditions which indicate the need for charitable intervention to prevent or to remedy the effects of alienation: poverty, lack of empowerment, prevalent unemployment, poor or inaccessible housing, health and social care services and a general lack of opportunities. In Northern Ireland, this would also mean imposing a more rigorous public benefit test on all organizations seeking charitable status for activities which might tend towards reinforcing existing community divisions, for example in the areas of education, training and employment; and specifically on gifts to and activities of religious organizations. As a corollary, recognition and additional incentives should be given to purposes, which serve to bridge divisions; for example, schemes to provide for integrated schools, mixed housing estates, cross-community schemes for urban regeneration and the alleviation of unemployment.  This could be done hand-in-hand with the encouragement of charitable activity, which nurtures cross-community respect for cultural heritage. It would also be appropriate to remove the restrictions on assertive advocacy, on lobbying for political change and on the forming of self-help groups as incompatible with charitable status. The more that can be done to assist minority groups to articulate their sense of grievance the greater the likelihood that a drift towards alienation can be forestalled.

Alienation and Politics

Politics creates the space for minority groups. The space created can affect them positively or negatively. In the former case, it can facilitate the vibrant healthy growth and participation of minority groups. In the latter, it can consign them to marginalisation and possible alienation. This occurs nationally and internationally, as part of a considered strategy and by default.  It is the negative effects of the space created that now concern us.

As a considered strategy, this is most clearly apparent in divided societies where a majority group uses authority to positively discriminate in its own favour. The recent turbulent history of many countries (e.g., Yugoslavia, Israel, South Africa, Rwanda, etc.) testifies to the power of politics to formally de-select minority groups from a share in the responsibility for managing their nation’s institutional framework. The same approach is also evident on a global scale. The current international treatment of Iraq provides an example of how a majority of nation states can agree to co-ordinate their efforts in a negative strategy to deny another nation the same freedom to engage in a negotiating infrastructure for determining matters such as economic growth, trade, environmental control etc as they enjoy.  Perhaps Israel offers an example of this process in reverse where some nations act in conjunction to positively discriminate in favour of another.

It occurs by default most often as a consequence of careless politics, or political vacuum, which marginalizes particular groups within a nation. The history of social movements promoting equal rights for groups such as racial minorities, the disabled, gypsies etc provides many illustrations of how politics can, by default, deny full citizenship to minority groups. Arguably, Catholics in Northern Ireland like the French speaking population of Quebec, may have cause to believe that they have been treated in this way. On an international scale, it is evident in the pernicious effects of repayment schemes for World Bank loans on the growth and stability of poorer nations. It is more generally apparent in the economic divide between the nations of the northern and southern hemispheres.

To those consigned to a space where they are or feel marginalized, it matters little whether this resulted from a strategic or careless use of politics; access to opportunities available to others is unavailable to them. Using the space available, members of a minority group will tend to cohere in a mutual support network as a substitute for membership of their national or international institutional framework. From that position, as they grow in strength, they most usually achieve recognition and negotiate their way into fuller participation within the relevant institutions.  Where the institutional framework fails to provide that recognition, or the pace of change is judged to be too slow, then the excluded minority group can become alienated.  In that case a militant faction may displace the negotiators. Within a nation the violent outcome of such a process can be seen, for example, in the past in relation to the Black Panthers in the United States and presently in relation to the position of Catholics in Northern Ireland and the Tamils in Sri Lanka. Arguably, it is now evident on an international scale in the reaction towards the United States of those adherents of Islam who perceive the former’s role in the Middle East as prejudicial at least to Arab interests if not more broadly to those of Islam as a whole.

Ensuring that there is space available to minority groups and that this space provides a positive context that promotes their social inclusion, whether on a national or international scale, remains with politics 13 , but failures are notable there.  The current charity law also seems not recognize the importance of this responsibility.

Alienation, Charity Law and the Events of the 11th September

Politics creates the space for minority groups but law authorises its use. Charity law in particular then becomes crucially important. Its terms of reference invest it with the capacity to create an enabling environment for such groups. Because it is governed primarily by the public benefit principle, it can serve as a powerful tool for ensuring a positive use of politically created space and for levering minority groups into legitimate negotiating roles within their respective national or international infrastructures. Events in New York, as in Northern Ireland and elsewhere, perhaps, illustrate a similar pattern of failure: first in politics, to create an appropriate space for minority groups; then in charity law, to address the needs and facilitate the social inclusion of such groups. The consequence of failure may be a missed opportunity to forestall alienation and this may in turn set the socially excluded on a course towards violence.

Once violence breaks out, as in Northern Ireland, then a political/military response is unavoidable. Before and after that stage, it is the responsibility of politics to create, and charity law (among other laws) to structure, an environment conducive to promoting the social inclusion of marginal groups. Neither politics nor law can operate in isolation and neither can compensate for deficiencies in the other; they have to function – effectively, appropriately and sufficiently – in tandem. As in Northern Ireland, not until the violence abates will the opportunity arise for politics and charity to find a way to jointly address issues of social inclusion. Unfortunately, and again as in Northern Ireland, it is in the immediate post-violence phase that the formal representative political system tends to displace the informal participative networks with elected politicians closing ranks to address the pressures from their constituencies to the exclusion of concerns for marginal groups. The wagons are circled and the formal political agenda is then less likely to accommodate minority group issues.

Politics and law must relate to their social context. Charity law, at least that which devolves from the common law tradition, for reasons outlined above, at present either excludes or does not provide a sufficient response to the needs that are characteristic of marginal groups and precursors to their alienation. Charity law will need adjustment to ensure that in future its terms of reference fits the space to be created by politics for minority groups, on a national and international basis. It is the challenge of politics to first make that space.

Conclusion

The Northern Ireland experience is testimony to the fact that charity law must not only be appropriate and effective but must also be sufficient to address the needs of minority groups. This jurisdiction provides an unfortunate and extreme case study of what can go wrong within a modern western society when a minority group becomes alienated from the prevailing social infrastructure.  Arguably, the events of 11th September provide an example of the consequences of such alienation on an international scale.

Social inclusion must be addressed at both a national and global level. This is a matter for politics. Once the space has been created it then falls broadly to the legal framework governing NPOs and more specifically to charity law, to authorise the means whereby minority groups can be induced and empowered to engage in the relevant institutional infrastructures.  In Belfast and New York the struggle to make politics and charity law work in tandem, so as to forestall alienation and promote social inclusion, must not be allowed to succumb to violence.

Notes

* Dr. O’Halloran is Research Director of the Centre for Voluntary Action Studies at the University of Ulster and author of many books and treatises on related subjects.  Dr. O’Halloran can be reached at KJ.OHalloran@ulster.ac.uk.

1 See, further, https://www.ulst.ac.uk/cvas.test/.

2 See, O’Halloran, K., and Cormacain, R., Charity Law in Northern Ireland, Round Hall Sweet & Maxwell, Dublin, 2001 and Cormacain, R., O’Halloran, K., and Williamson, A., Charity Law Matters, the Stationery Office, Belfast, 2001 which resulted directly from that project. See, also, O’Halloran, K. Charity Law, Round Hall Sweet & Maxwell, Dublin, 2000, which addressed the law and practice in the Republic of Ireland. Several articles were also published.

3 See, for England and Wales: the National Council for Voluntary Organisations, For the Public Benefit? A Consultation Document on Charity Law Reform, London, 2001. See, for Scotland: the Scottish Charity Law Review Commission report Charity Scotland, Edinburgh, 2001.

4 See, Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 where the following four ‘heads’ of charity were identified: relief of poverty; advancement of education; advancement of religion; and other charitable purposes which cannot be readily accommodated under the first three heads.

5 Charities Branch is the government body statutorily charged with responsibility for the affairs of charities in Northern Ireland. It acts largely in a facilitative role giving informal advice to assist the efficient administration of charities.

6 NICVA is an NPO which exists to promote good practice among voluntary organisations, facilitate good governance and assist organisations to become formally constituted. SectorNet, its informal database of voluntary organisations including charities, is the only form of ‘register’ for such bodies in Northern Ireland.

7 The Valuation and Lands Agency, a government body, is the property valuation agency for Northern Ireland. Its duties include determining whether or not premises are entitled to rates exemption on the grounds of charitable status.

8 The Inland Revenue is the government body with responsibility for responding to applicant bodies throughout the United Kingdom claiming tax exemption on the grounds of charitable status. In relation to applicants from England and Wales the IR will look to the Charity Commission’s register for confirmation of charitable status. As the Commission’s remit does not extend to Northern Ireland, the IR makes its own determination of exemption entitlement without reference to a register and without formally conferring charitable status on NI applicant bodies.

9 In particular: for England & Wales, op cit at f/n 3; for Scotland, op cit at f/n 3; for Canada see, Ontario Law Reform Commission, (1996), Report on the Law of Charities, Ontario, government publication; for Australia, see the Charity Law Reform Committee report Inquiry into the Definition of Charities and Related Organisations, June 2001.

10 This rule refers to the common law practice of extending by analogy a recognition of charitable purpose to those activities which, although not enumerated in the Preamble to the Statute of Charitable Uses 1601, are judicially viewed as being so close to those listed that they can be construed as coming within the intention of that legislation.

11 See, Corrymeela Community v Commissioner of Valuation VR/1/1967, the only reported case which has come close to addressing the issue. One of its purposes was identified by the Tribunal as the “welding together of the different sections and classes in society whether in Northern Ireland, or nationally or on an international scale in a spirit of mutual understanding and tolerance in a Christian context”. It was found to be charitable but the decision is of questionable relevance to peace and reconciliation initiatives.

12 See,e.g., Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue (1999) 169 D.I.R. (4th) 34, SC for a case where a minority group established to provide mutual support for immigrant women failed to gain charitable status because their purposes could be construed as permitting political rather than exclusively educational activities.

13 In the United Kingdom the recent experiment with ‘Compacts’ provides an interesting example of government initiatives to provide a positive and negotiated space for NPOs. See, in relation to Northern Ireland, Building Real Partnership: the Compact Between Government and the Voluntary and Community Sector, VAU, DHSS, 1998.