13 K.C.L.J. 1 (2002)

handle is hein.journals/kingsclj13 and id is 1 raw text is: (2002) 13 KCLJ 1

GRAHAM MOFFAT*
CHARITY, POLITICS, AND THE
HUMAN RIGHTS ACT 1998:
MUCH ADO ABOUT NOTHING?
1. INTRODUCTION
HIS ARTICLE is primarily concerned with the implications of the Human Rights
Act (HRA) 1998 for certain aspects of the law that affect organisations established
to pursue what in English law are lmown as charitable purposes. Charities, as such
organisations are commonly termed, are in general terms those not-for-profit organ-
isations which can satisfy the state, in the form of a public body called the Charity
Commission,I that they meet specified criteria.2 The criteria are derived from and are
to be found in case law as developed over a period of some 400 years. In short the
definition of charity is a creature of the common law.
In general terms the HRA 1998 may impact in a variety of ways on charities. In cer-
tain circumstances charities themselves may be deemed to be exercising functions of
a public natures such as providing residential care facilities for the mentally handi-
capped via a contractual relationship with local authorities. In those circumstances
the acts or omissions of the charity itself may come within the scope of the statute.4
Important as this consequence of the enactment of the HRA 1998 is for charities and
* School of law, University of War-wick. I am grateful to John Gardner, Charles Mitchell and Karla W Simon
for their helpful comments on an earlier draft of this article. I remain responsible for the conclusions and
any remaining errors.
1. The Charity Cormnissioners, of whom there are five assisted by a staff of around 550, are civil servants
appointed by the Home Secretary to whom they must submit an annual report, but otherwise they act
independently of his department. On the public accountability of the Commission see 10th Report of the
House of Commons Expenditure Committee (HC Paper (1974-75) no 495); National Audit Othce Regulation and
Support of Charities (HC Paper(1997-98) no 2) and the Committee of Pubbc Accounts (Twenty Eighth Report
(1997-98) HC no 408).
2. Under Charities Act 1993, s g(1) and (2) the Comnissioners are required to establish and maitain a reg-
ister of all charities not specifically excused. The mandatory obligation is reinforced by s 1(6) and (6)(a),
under which the charity trustees of such charities are required to apply for registration. See generally
H. Picarda, The Law and Practice Relating to Charities (2nd ed., London: Butterworths, 1995) ch 15).
3. Under the Human Rights Act 1998, s 6 (1) it is unlawful for a public authority to act in a way which is
incompatible with a Convention right and a public authority includes any person certain of hose tiuc-
tions are ftmctions of a public nature (s 6(2)(b)). This definition could certainly extend to include some
activities of modem charities such as the RSPCA and NSPCC.
4. SeeJ. Warburton and A. Cartwright, Hu-man Rights, Public Authorities and Charities (2000) 6 Charity Law
and Practice Review 169; and Charity Commission, Human Rights Act 1998: Charities and Human Rights (Operational
Gidance OG71 B3-18 September 2000: w-vw.chasrity-comnission.gov.lk/ogs/gO71b03).
PUBLISHEt D iBy HAR T PUBLtSHING

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