It is almost eleven years since the last edition of this important practitioner’s textbook appeared, and the most important change is the advent of the Charities Act 2006 comprehensively integrated throughout the book.
The book is helpfully grouped into eight major parts, namely:-
- What is a charity;
- Foundation of charities;
- Schemes;
- Running the charity;
- Jurisdiction;
- Litigation;
- Taxation;
- Miscellaneous.
Then there are four useful appendices, namely:-
- The Charity Act 1993;
- The Charities Act 2006;
- The first tier tribunal rules; and
- The upper tier tribunal rules.
Each of the parts is sub-divided into sections as one would expect, bringing the law right up to date. So, for example, under the sub-heading Public Benefit in Part 1, there is a detailed analysis of public benefit under the Charities Act 2006, and there is an interesting and rich chapter on the important areas of advancement of education, and interesting important and previously ignored cases are drawn to the reader’s attention, eg University College of North Wales v Taylor [1908] S140 and Smith v Kerr [1902] 1 Ch 774 at 778 CA.
Under the sub-heading “reformulated and new charitable purposes under the Charities Act 2006 not falling within property education or religion”, there is a painstaking and comprehensive analysis of such areas as the advancement of health and the saving of life, the advancement of citizenship or community development the advancement of the arts, culture, heritage or science, the advancement of human rights etc, the advancement of environmental protection or improvement, and so on.
There is a spirited discussion in Chapter 16 on Politics, where again the author has undertaken a very detailed analysis of the areas of party politics, peace and international understanding bodies whose object is to change the existing law, eg McGovern v ALG the Amnesty Case, trusts to influence government policy, and a careful analysis of CC9, the latest Charity Commission Guide to political campaigning of March 2008.
While the important Aid/Watch case was heard by the High Court of Australia on 15 and 16 June 2010, judgment was reserved and is still awaited (and accordingly it is not dealt with in the text), and it will be interesting to see whether or not the author’s views accord with the decision reached.
Then there is a useful chapter on human rights augmented by excellent footnotes (as is the case with all the footnotes throughout this Book).
Again, the reader is directed to the meticulous examination of Charitable Incorporated Organisations in Chapter 18.
This same attention to detail is to be found in the section on Perpetuities and Accumulations referred to at the end of Chapter 27.
I found the detailed Chapter 29 on the cy près principle very practically useful, as was Chapter 35 on the direction of schemes and the relaxing of rules for unincorporated charities.
Another very useful section is the discussion in Chapter 38 of the Charity Commission’s new jurisdiction regarding remuneration of trustees pursuant to the new provisions introduced by the Charities Act 2006.
Similarly, the reader will find detailed examination of spending of permanent endowment in chapter 41, accounting duties in Chapter 43 and registration in Chapter 46.
As will be clear from the author’s Preface to the current edition, he has had assistance on various chapters from Debra Morris, the well-known academic in the field of charities, and special mention should be made of her useful contributions to Chapter 17 on Human Rights and Chapter 18, Form of constitution.
A mention must also be made of the width of the cross-references and the sensible citation of internet reports and latest leaflets and articles by other authors where relevant, supported by a very impressive bibliography.
The book is therefore not only a comprehensive and up to date guide on the whole area of the law and practice relating to charities, but at all times provides practical and detailed synergy of the law and procedure.
Very topical issues of significance are helpfully and fully addressed by the author – an eminent specialist in this field of law.
I feel sure that this book will prove to be a vital and important addition to the library of any Charity law practitioner.
Henry Frydenson, Chairman, ACTAPS
Principal, Frydenson & Co
STEP Journal, 2010
In 1977, the profession was starved of up-to-date material on the law of charities. The then current edition of Tudor was decades old. In that year, the first edition of Picarda on Charity hit the market and all of a sudden, the profession got an up to date work presented in a very readable way which dealt thoughtfully and thoroughly with the issues.
For some reason the book does not appear ever to have been reviewed by the Journal even though the fourth edition has now been published.
The book is an English book, but the author goes out of his way to deal with other jurisdictions including Australia. The fourth edition became necessary because of radical amendments made to charity law by recent English legislation passed by the previous Labour Government which repealed or recast some of the basic principles of the law of charity which had been definitive for 400 years. With a change of government in England, some of those amendments (such as those denying charitable status of gifts made to “wealthy” GPS schools) are unlikely to survive. However, the English “reforms” may well appeal to socialist type governments elsewhere so that it is useful for Australians to have a book dealing with them especially as the book also deals with the current Australian position.
The book contains 58 chapters plus the text of the key English statutes. Indeed the reprint of these texts occupies pp 1171-1381.
There is no need for me to add my endorsement to a work which is recognised throughout the common law world as a work of exceptional scholarship and which clearly and correctly deals with principles of law applicable to charitable trusts and arrangements.
However, although the work does indeed refer to Australian and other jurisdictions (including even a chapter on European jurisdictions who do not recognise trusts) it is solidly based on the law of England and in particular the Charities Act 1993 (UK) as radically amended by the Charities Act 2006 (Cth). Although the relevant text of these statutes are set out in the appendix, so that the reader can compare with local law, the departures from the previous law made by this Act of course are taken up in the text. Thus the main text proceeds on the basis that reasoning based on the Statute of 1601 is now obsolete and that there is no presumption of public benefit in certain donations such as to educational establishments. Those views are not relevant to Australia. Again, the situations in which cy pres schemes can be instituted are wider in England than in Australia and the tribunals administering charity law are vastly different.
A side benefit of the modern English statutes is to assist bodies such as our Charity Law Association to amend our law to include some of the better reforms made in England. One is that, in cy pres cases, the court can look at the “spirit of the gift” and virtually ask: “If the founder were alive at present and aware of present day circumstances, how would he or she have adjusted the gift?”
It is not the author’s fault that there are these differences, and, indeed, there is usually reference as to how the 2006 Act has departed from the traditional law. However, the fact that there are these differences needs to be constantly kept in mind by the reader.
It is good to see this new edition of a leading work in the field.
Mr Justice P W Young AO
Australian Law Journal
(2011) 85 ALJ 185
Described by publishers as “the first ‘heavyweight’ title to be published on charity law since the Charities Act was passed in 2006” the author has produced an admirable work, dealing with all the major changes in charity law that have taken place in the last few years.
The previous edition of this title was published 11 years ago and the intervening years have seen a raft of new law for charities including the Charities Act 2006, Equality Act 2006, Housing and Regeneration Act 2006, Perpetuities and Accumulation Act 2009, new guidance on the public benefit test from the Charity Commission, cases heard in the House of Lords and High Court along with changes to charitable housing associations and the structure of NHS Trusts. The book provides a thorough analysis all these developments and highlights the implications of the potential further changes proposed by the new coalition Government.
Style
Anyone who has had the pleasure of listening to the author, Hubert Picarda QC, lecture on the topic of charity law will have been struck by his passion and expertise in the subject. This text is written with the same enthusiasm and the reader will inevitably enjoy the elegant prose and legal rigour throughout.
The structure is well thought out, with appropriate and logical demarcation of topics and sub-division of chapters, clear references to cases and legislation and cross referencing. A reader picking up the book and reading it from start to finish would find themselves on a sensible (and enjoyable) journey through the law and practice of charities starting with an analysis of “what is a charity?”, then working through the different types of charitable purpose (including a detailed analysis of the public benefit requirement), followed by an overview of charitable structures and chapters dealing with the running of charities and on specific areas such as the tax treatment of charities.
Each chapter has a formal structure. The author sets out the historical background to a particular subject before dealing with relevant developments in the law and a detailed examination of relevant case law. There is then a focus on the practical applications of the law along with examples to illustrate how a particular point might be applied to specific situations.
There is also commentary on the author’s view of a particular topic. This view does not always accord with the view of other commentators and establishments and the author helpfully identifies where views diverge.
The text does not assume a detailed knowledge of charity law and is therefore suitable for a relative newcomer to this field. However, the text also contains sufficiently detailed analysis for it to be a valuable resource for the seasoned practitioner looking to deal with the latest conundrum presented by a client.
Observations
Anyone with a significant charities practice will have found themselves having to rely on their own analysis of primary legislation in order to advise clients on the changes under new legislation affecting the charity sector in the last five years or so. This text is therefore a welcome publication. For example, Ch.27 sets out a very clear overview of the law relating to perpetuities and accumulations, starting with the historical background before describing the reforms and their practical impact.
Each of the 60 chapters has something to offer the practitioner. Chapters of particular note are those dealing with the primary charitable purposes (Chs 3–15), where each chapter sets out the development of the law underpinning the particular charitable purpose, a definition of each purpose and a critique of the case law in each area. Each of the chapters is well written and would make a good starting point for understanding the law relating to public benefit following the implementation of the Charities Act 2006 and the subsequent guidance issued by the Charity Commission.
Other chapters worthy of particular note are those relating to the analysis of Charity Schemes and the cy près doctrine (Chs 29–35). In total, there are seven chapters dedicated to this topic, providing a comprehensive review of this area of law and guiding the reader through the minefield of deciding whether a particular gift has sufficient characteristics for there to be a valid charitable gift.
Practitioners will be likely to dip into a number of chapters on regular basis. These include the chapter on the control of fundraising (Ch.49), which summaries the new regulations on fundraising, and the chapters on tax (Chs 55–57) and charitable purposes mentioned above.
Other chapters might be less well-thumbed but will be important nonetheless. The chapters dealing with specialist topics go into great depth in respect of areas not necessarily addressed in other resources. These topics include the construction of gifts (Ch.22), the relevance of perpetuities and accumulations (Ch.27), the removal of specific types of trustee (such as officers of schools, universities and religious organisations) (Ch.28), the law and practicalities of dealing with ex-gratia payments (Ch.42) and information about the trusteeship of parochial and diocesan charities (Ch.36).
The reviewer recently had to consider the role of the Visitor in relation to a particular organisation and the extent of the Visitor’s powers. Chapter 45 of this book has 20 pages dedicated to the origins and development of the role of the Visitor and a clear summary of the limitations on the Visitor’s powers, within which a clear answer to the query was found.
The role of the Visitor gets very little coverage in other text books and gems such as this add to the strength of the publication. Other areas one might not expect to find in a comprehensive textbook of this kind are topics such as the conflict of laws and problems within the United Kingdom (covered in Ch.59), and references to both Commonwealth and American cases throughout the book, which gives an interesting comparison of how some of these issues are dealt with in other jurisdictions.
Problems
Two potential problems with using this book spring to mind.
First, the comprehensive nature of each chapter means that it is not a quick reference guide. It is easy to find oneself drawn into the analysis of a topic and, as a result, to spend quite a significant amount of time reading around the subject before getting to a particular answer. That said, there are unlikely to be many readers who would wish to sacrifice the level of detail in return for an easier reference guide.
Secondly, the text is written elegantly and stylishly, with a sophisticated use of vocabulary. The less scholarly reader may be put off! Charities 147
Alison Talbot
Blake Lapthorn
Private Client Business
The much anticipated fourth edition of Hubert Picarda’s charity law text, The Law and Practice Relating to Charities, was published in 2010 by Bloomsbury Professional Ltd. The latest edition of Picarda’s leading treatise fortifies the title’s distinction as essential reading for anyone interested in the law of charity.
The true value of this title cannot be established without some initial reflections on charity law as a subject matter. Research in the field of charity law can often feel like an elusive search for a needle in a haystack. Resort to commonly used online databases does not readily reveal all relevant authorities. The cases considered authoritative in Canada span several centuries and foreign jurisdictions, including England, Australia, New Zealand, Ireland, Scotland and beyond. In addition, the authorities once located are not easily comprehended, especially those dealing with the legal meaning of charity. The reader must be familiar with diverse and complex doctrines of law in order to track with the reasoning of charity judgments. The technical language of the cases, especially the older property and trust precedents, is inaccessible to readers lacking expertise in ancient rules of law, some of which are now only selectively taught in law schools, e.g., the law of mortmain and the rule against perpetuities.
Further complicating things is that the policy considerations courts juggle (not always transparently) when defining charity vary from context to context. As a result, the outcome of any given case may not be readily transferable to new circumstances. It could well be argued that there should be but one legal definition of charity applicable across all legal contexts, but the law would appear to have gone another route. As a result, authorities characterizing objects as charitable for purposes of, say, property tax concessions or the rule against perpetuities may, for example, be distinguished by courts defining charity in the context of income tax law.
Add to this that, although the legal concept of charity has been developed over centuries of jurisprudence, the governing principles of this area of law remain somewhat surprisingly unsettled. Charity law has for quite some time been the object of sustained and fierce criticism. One leading analyst went so far as to describe the jurisprudence dealing with the meaning of charity as “the worst exhibition of the operation of the technique of judicial precedent, which can be found in the law reports. ”Another condemned it as an “area riddled with arcane and archaic learning, hair-splitting distinctions, irreconcilable authorities and anomalies for which nobody ever dares offer any explanation other than their history.” Literally no one argues that the jurisprudence provides a felicitous account of the meaning of charity.
Needless to say this is an area of law in which a quality secondary resource has tremendous value. Mr. Picarda’s treatise has admirably met this need since the first edition was published in 1977 followed by the second and third editions in 1995 and 1999, respectively. It was only in recent years that the value of the title had begun to erode due to substantial reform to English charity law in the years since the third edition was published. The enactment of the Charities Act, 2006 reflects the most extensive of these reforms. Under section 2 of the Charities Act, 2006 the four heads of charity traditionally recognized under English law – the relief of poverty, the advancement of religion, the advancement of education and other purposes beneficial to the community – were statutorily expanded to thirteen categories of charitable purposes. Section 3 of the Charities Act, 2006 abolished the presumption of public benefit developed at common law for select charitable purposes, e.g., the relief of poverty. The new rule is that public benefit must be established on the facts as a condition of attaining and maintaining charitable status under English law. Even perpetuities and accumulations law (not typically known for rapid development) evolved since the third edition of Mr. Picarda’s treatise via the Perpetuities and Accumulations Act 2009. Given these (and other) reforms to charity law, the third edition of the treatise could no longer be relied upon for a current statement of English law.
The fourth edition has been recast where appropriate to reflect these developments in English law. It continues the high standards set by previous editions. The hallmark of well-written treatise is that it expresses complex ideas using accessible language. Meeting this standard requires a devoted author concerned as much with quality of expression as with substantive content. Mr. Picarda’s treatise dutifully lives up to this exacting standard. He achieves the difficult goal of remaining comprehensible to a lay audience without sacrificing the detail, sophistication or organization demanded by an expert readership.
The book is clearly organized into eight parts and 60 chapters. Part I is devoted to the meaning of charity. Its 17 chapters set out in great detail the various purposes currently recognized as charitable under English law. An informative chapter is devoted to the controversial doctrine of political purposes, which limits the permissible advocacy activities of charities. Part II deals with the establishment of charities. The chapter devoted to the application of perpetuities and accumulations law to charities is commendable for clearly stating an area of charity law notorious for its excessive difficulty. Part III deals with schemes and the doctrine of cy-près. The chapters comprising this part do an admirable job of methodically explaining a poorly understood area of charity law. Part IV details the law governing the administration of charities, including a chapter devoted specifically to investments of charitable property. Part V deals with jurisdictional considerations, specifically, the jurisdiction of the Crown, courts and Charity Commission over charities. Part VI is procedural in nature, detailing the rules of proceedings when charitable matters become contentious. Part VII provides a helpful primer on taxation and charities, a topic that is all too often mistakenly viewed as something best left to tax treatises. Finally, Part VIII deals with remaining miscellany, including conflicts of laws, charity law developments in Europe and topical statutes of relevance to charities.
On a constructive note, the treatise could perhaps benefit from a more pronounced critical component scrutinizing to a greater extent the reasoning and consistency of charity decisions. While the treatise assumes a critical posture from time to time, it has a tendency to accept judicial or regulatory authorities as a given. Since its primary goal is to state the law rather than to spearhead law reform or indulge in academic reflection, it might fairly be said that such an approach is utterly appropriate. Indeed, law books providing an orthodox statement of “the law” play an important and time-honoured role in legal literature that should not be dismissed out of hand on methodological grounds. What this means, though, is that readers interested in discovering the limitations of orthodox charity law doctrine, which is arguably necessary in order to gain a deeper understanding of the law and its nuances, will have to go beyond the confines of this title. For these readers Mr. Picarda’s treatise will provide but the starting point of analysis, albeit an incredibly useful one.
Canadian charity lawyers will be interested to hear about the title’s relevance to a Canadian readership. Like earlier editions of the treatise, the fourth edition will enjoy broad appeal in Canada notwithstanding its English orientation. This is at least in part owing to the well-established tradition of Canadian charity law following English common law authorities. It also reflects Mr. Picarda’s continued practice of taking into account authorities from jurisdictions outside of England, including Australia and Canada. However, as is understandable for a treatise devoted predominantly to English law, the citation of Canadian authorities is not comprehensive.
Despite the appeal of this treatise to a broad Canadian readership, the need for a Canadian specific treatise on the law of charity is becoming increasingly apparent. This is not due to any particular shortcoming of Mr. Picarda’s treatise but rather to the growing gulf between English and Canadian charity law. An English treatise may have been sufficient for Canadians when English and Canadian charity law generally shared a common legal framework. The differences between the Canadian and English regimes are, however, growingly increasingly stark. Canadian lawmakers are clinging to traditional English precedents more securely than even the English. Whereas the English have embraced significant statutory reforms to charity law, Canadian charity law continues for the time being to follow the historical English common law precedents. Some might argue that Canadian charity law has as a result become stagnant. Whether that overstates the point or not, it is certainly the case that English and Canadian charity law are now more than ever on separate trajectories. For the time being, the discrepancies between Canadian and English law in the fourth edition of Mr. Picarda’s treatise are fairly evident, even to readers with only a passing familiarity with Canadian charity law. However, as the differences between the regimes mount, it will become increasingly difficult to disentangle the uniquely English principles from those of relevance to Canadians. A treatise devoted to Canadian charity law will eventually become a necessity, perhaps sooner than later.
Overall the fourth edition of The Law and Practice Relating to Charities maintains the title’s distinction as an indispensable research tool for anyone studying the law of charity. It is a well-written and intuitively organized treatise authored by one of charity law’s most esteemed and widely cited authors. It acquits itself admirably as a valuable resource well worth the purchase price.
Adam Parachin
Faculty of Law
University of Western Ontario
