The Foundation as a Political Actor: The Case of the Joseph Rowntree Charitable Trust (original) (raw)
Related papers
Charitable trusts and political activity: Time for a change?
2011
For many decades case law and, more recently, statute has determined that a trust will be denied charitable status if its purposes are political. This appears, prima facie, to be a straightforward principle, however jurisprudence suggests that this principle is fraught with difficulties, not only for the judiciary, but also in terms of its justiciability. This paper considers the complex relationship between charity and political activity, and in light of recent decisions coming from the New Zealand Charities Commission and Australia's and New Zealand's High Courts, questions whether it is time for the Charities Commission and the courts to adopt a more liberal approach when applying the principles to reflect contemporary socio-political times.
working paper #4: Charitable Foundations and Advocacy Reimagining the Doctrine of Political Purposes
By Adam Parachin What role do we want grant making foundations to play within the charitable sector specifically and society generally? Does current law enable or frustrate that role? These are the core questions I aim to consider in this discussion paper, focussing on rules of law restricting advocacy by charities. The first step is to identify how grant making foundations differ legally and practically from other charities. Current income tax law essentially categorizes charities based on the familiar distinction between charities that fund charitable programming, e.g., grant making foundations, and charities that directly carry out such programming. It achieves this by recognizing a distinction between charitable foundations and charitable organizations. The Income Tax Act statutorily defines “charitable foundations” as institutions established for exclusively charitable purposes (which is specifically defined to include the disbursement of funds to other registered charities) and “charitable organizations” as institutions established for exclusively charitable activities.1 At the risk of oversimplifying, charitable foundations further their charitable purposes by funding other charities and charitable organizations further their charitable activities by directly supplying charitable goods and services. Therefore, in income tax law the “funding versus doing” distinction takes expression as, and corresponds with, a distinction between “charitable purposes” and “charitable activities”, respectively. This distinction – that between charitable purposes and charitable activities – has been widely criticized for contributing ongoing confusion to the law of charity. That it is so central to the regulatory treatment of grant making foundations reveals a fault line in the foundation of the regulatory infrastructure within which grant making foundations operate. This is not to suggest that the “funding versus doing” distinction altogether lacks regulatory significance. It is merely to invite critical reflection on what this distinction ultimately reveals to us about the nature of grant making foundations and the regulatory treatment of these foundations. In my view, one reason why the “funding versus doing” distinction ultimately matters from a regulatory perspective is because it is representative of the “convening role” played by grant making foundations within the charitable sector. This role is most obvious in the sense that grant making foundations are mobilizers of capital within the sector through the provision of grants. But foundations also play a convening role in the sense that they provide the context, infrastructure and platform for discussion within and about the sector. Foundations frame discussion and debate on all matters charitable. They also speak on behalf of the sector to government and the public at large. Of course, none of these convening functions are exclusive to grant making foundations, as these functions are also performed from time to time by operating charities directly carrying out charitable programming. These functions are, though, defining features of the role played by foundations as convenors, thought leaders and advocates within and on behalf of the sector. When grant making foundations are viewed in this light, it becomes apparent that rules of law restricting advocacy by charities, though they apply with like force to all charities, have a unique impact the mission of charitable foundations. A cynical response is that this goes no further than making the banal observation that those who advocate are more impacted by rules restricting advocacy than those who do not. Obviously, if advocacy and convening along the lines alluded to above are part of what qualify charitable foundations as charitable foundations, then the rules of law restricting advocacy will impact charitable foundations differently (perhaps more severely) than other charities. But I think there is a bigger point at stake here. If current law works at cross purposes with the kind of advocacy that falls within the “convening role” of charitable foundations, then we might treat this as prima facie evidence of regulatory overreach. Although all of these issues have been previously considered, they have taken on a renewed timeliness given the earmarked funding the Charities Directorate of the Canada Revenue Agency has received for audits of political advocacy by charities. In addition, courts in other jurisdictions have in recent years liberalized the rules relating to political advocacy by charities. In Aid/Watch Incorporated and Commissioner of Taxation, the High Court of Australia concluded that advocacy related to a charitable end (the relief of poverty in that case) can itself be a discrete charitable purpose.2 Shortly thereafter, the New Zealand Supreme Court in Re Greenpeace of New Zealand Incorporated expressly concluded that “political and charitable purposes are not mutually exclusive in all cases”.3 More recently, the UK First-Tier Tribunal (Charity) in Human Dignity Trust v The Charity Commission reasoned that human rights based advocacy can be altogether immune to the rules restricting political advocacy.4 All of these developments point to a need to revisit the Canadian approach to regulating political advocacy by charities. Employing a case law and policy analysis, this paper explores the thesis that the doctrine imposes an artificial constraint on the boundaries of legal charity. Part II reveals the strange duality posed by the rules restricting political advocacy by charities. Though the charitable sector is premised on idealism, the law is selective in the extent to which that idealism can take expression in charitable works. Part III provides a primer on the legal meaning of charity. Part IV discusses the impact of the doctrine on the operations of charities. Part V reveals the superficial rationales articulated by courts in support of the doctrine. Part VI links the doctrine with the rise of fiscal considerations in the legal definition and regulation of charity. Part VII proposes reforms to the doctrine designed to preserve a principled distinction between charity and politics, while ridding the law of the excessive restraints it currently poses against political advocacy by charities.
Charitable Trusts and Political Purposes: Sowing the Seeds of Change? Lessons from Australia
The recent case of Aid/Watch v Commissioner of Taxation 1 has created sea changes in Australia in relation to charitable trusts, and as a result our Antipodean neighbours appear to be blazing trails in the evolution of charitable trusts, whilst at the same time, New Zealand resolutely remains entrenched in the annals of charitable trust history. Can, and indeed should, New Zealand continue this traditional approach, as pressure mounts to explore more liberal interpretations of charitable trusts and political purposes? This article explores the two jurisdictions and considers critically, in light of very recent controversial judgments, the diverging paths being taken by the jurisdictions. Before any analysis of the proposition, there must first be a contextualisation of the legal position of charitable trusts and political purposes. The Legal Context The philosophy of charity is rooted firmly in the annals of history and the oldest active charity on record in the United Kingdom is documented as AD597. 2 However, it would take many more centuries before an official system of regularisation would take effect; this began officially with the Statute of Elizabeth known otherwise as the Statute of Charitable Uses 1601. This Act was primarily intended as "an accountability tool to ensure that charitable assets were applied to charitable ends" 3 and has long since been repealed, although in the modern context it is its Preamble that is the cornerstone of that which may be construed as the principle of charitable law, and the yardstick against which charitable purposes are measured; if a purpose falls within the spirit and intendment of the Preamble, 4 then prima facie, it is charitable. The Preamble sets out the non-exhaustive list of purposes that are deemed to be charitable and these purposes include: • The relief of the aged, poor and impotent; • The maintenance of sick and maimed soldiers and mariners; • The repair of bridges and churches; • The marriage of poor maids.
Public Money & Management, 2015
Philanthropic foundations have famously been described as large amounts of money completely surrounded by people who want some (MacDonald,1956). As such, it is unsurprising that the last few years have seen an increasing governmental interest in and focus on foundations. Given foundations' outward appeal and mythic properties (Jung and Harrow 2015a), as well as wider debates around foundations' future roles and responsibilities (Robert Bosch Stiftung 2014), it thus seems timely that the UK's Cabinet Office has recently published a working paper on 'How foundations are using Total Impact approaches to achieve their charitable missions' (Cabinet Office 2014a). Aimed at foundation staff, trustees, and professionals within and beyond the foundation field, the paper purports to highlight 'latest practice' in the area and outline 'crucial steps' required from foundations seeking to achieve Total Impact (Cabinet Office 2014a:4). Total Impact is perceived as a foundation considering 'all the different ways they [sic.] can achieve impact, and focuses resources on areas that have the maximum impact' (Cabinet Office 2014a:4). As part of this, the paper points towards an assessment tool that the Cabinet Office has been working on, aimed at framing foundations' conversations 'with their investment managers and advisors (ibid.: 29). Given the Cabinet Office's remits, such as providing governmental support, ascertaining the smooth running of government, and ensuring the effective development, coordination and implementation of policy (Cabinet Office 2015), the content of this working paper raises important questions about government's expectations of and agenda for philanthropic foundations. Impact? Total Impact! In modern times, the explicit focus on conducting effective philanthropy goes at least back to Andrew Carnegie. Disenchanted with 'indiscriminate charity' (Carnegie 1901:16), Carnegie argued that a philanthropist has a duty to 'cease giving to objects
CHARITIES: THE RECURRING QUESTIONS
Financial Accountability & Management, 2009
This special issue of FAM is based on a selection of papers from the EIASM research workshop on the Challenges of Managing the Third Sector which was held at the International University of Venice on San Servolo island on March 12-14, 2007. In previous research workshops in this series, there has been debate on the positioning of different disciplines which are deployed in the investigation of the challenges facing charitable organisations. These considerations have shown the debt owed to both economic and sociological thinking in past studies and the emergence of a more managerial perspective in understanding these distinctive organisations . Previous research workshops have also discussed the vitality of the Third Sector, as evidenced by the emergence of charitable organisations in new areas of activity such as credit unions, certain persistent challenges such as the forms of information necessary for monitoring charities and for prospective donors, the use of resources by charities, and the adoption of more professional management techniques . Underlying the distinctive nature of charities and charitable giving are fundamental challenges of the quantum of funds available to increasing numbers of charities and the dangers this poses for their continued existence , as further evidenced by a longitudinal study of Irish voluntary hospitals .
Charitable trusts and political purposes: Law on the edge of change in Australasia
2013
Historically a trust will be denied charitable status if its purposes are political, although this principle is fraught with difficulties because of the complex relationship between politics and charities. New Zealand has traditionally followed the jurisprudence of England and Wales, which determines that political trusts should be interpreted relatively widely so catching a broad section of trusts, thus excluding them from achieving charitable status. Australian jurisprudence however has displayed more reticence in its full acceptance of the political trust doctrine. Instead it has adopted a more narrow interpretation, so trusts that may fall foul of the doctrine in England and Wales and New Zealand, might successfully obtain charitable status in Australia. Then with the decision of the Australian High Court decision of Aid/Watch v Commissioner of Taxation, Australia finally departedfrom the jurisprudence of New Zealand and England and Wales. This article explores the Antipodeanjurisdictions and critically considers Australia's significant jurisprudential shift regarding charitable trusts and political activity and whether New Zealand is on the edge of an equal change to charitable trust law. The purpose of this paper is examine critically the diverging paths of charitable trusts of2 jurisdictions, Australia and New Zealand, that not so long ago, ploughed the same path and examine the law of charitable trusts on the edge of change. I think what I have to do now, prior to reviewing this law on the edge of change, I need to set out what we mean by charity at law. Everyone has heard of charity, and in fact, the vast majority of you will at some point have given to charity, or indeed, some of you may be involved in charity. So there is nothing difficult to understand about the concept of charity per se. What you may not fully be clear on however is what actually amounts to something being charitable at law. Not everything that appears to be philanthropic or generous may be charitable. And some things that may theoretically appear to be charitable at first sight, might actually NOT be charitable at law. And to receive all the benefits of being charitable, then certainly in many jurisdictions, an organisation has to be registered as a charity.
Charitable Trusts and Advancement of Religion: On a Whim and a Prayer?
Victoria University of Wellington Law Review
The advancement of religion is a controversial head of charitable trusts: whilst its foundations are based on tenets of intangible belief systems, New Zealand law, alongside other common law jurisdictions, supports the notion that the public benefit requirement of all charitable trusts be presumed in this particular head. Common law also reflects decades of evolution of the interpretation of the advancement of religion, thus not limiting the advancement of religion to only the traditional methods of yesteryear, such as offering church services. Nevertheless, with the recent contentious judgment in the New Zealand case of Liberty Trust v Charities Commission, this article submits that the established doctrines associated with the advancement of religion have been advanced beyond envisioned boundaries. The article supports a more conservative interpretation based on established case law. This would not only continue to support fully the evolution of the advancement of religion, but wo...