The Charities Bill and The Freedom of Information Act 2000

The Charities Bill was published on 21^st December 2004 having been introduced in the House of Lords on 20^th December. The Bill had its second reading in the House of Lords on 20^th January and is currently at the Committee stage. It is still hoped that the Bill may become law although the imminent General Election could change this.

Assuming that the Bill does become an Act of Parliament this year there will then be an implementation stage with Home Office Regulations and Guidance with the Act, potentially, becoming fully implemented in 2007.

The Charity Commission has issued a number of publications related to the Bill:

• Commentary on the Descriptions of Charitable Purposes in the Charities Bill;
• Public Benefit – the Charity Commission’s approach;
• New Role for the Charity Commission;
• Revised Guidance on the Promotion of Human Rights as a Charitable Purpose.

A few small changes have been made to the list of descriptions of charitable purposes in clause 2 of the Bill:

• the advancement of health has been extended to include the saving of lives;
• the advancement of arts, heritage or science has been extended to include the advancement of culture;
• the advancement of human rights, conflict resolution or reconciliation has been extended to include the promotion of religious or racial harmony or equality and diversity.

To ensure flexibility any purpose which may reasonably be regarded as within the spirit of a charitable purpose will be included as well as purposes that may reasonably be regarded as analogous to charitable purposes.

Please see below for the full descriptions of purposes.

This is the main area of debate. Many wanted the Bill to include a definition of public benefit but interpretation of public benefit and application of public benefit tests still rests with the Charity Commission.

The Bill requires the Charity Commission to issue guidance, after having carried out consultation. The guidance, although published, will not be legally binding on charities.

The Charity Commission has indicated that it would first advise a charity whose public benefit was in doubt as to how it might succeed in passing the test. Continued failure might result in a fine or suspension before loss of charitable status. If charitable status is lost then the assets will be applied for purposes close to any purposes that have ceased to be charitable.

While every charity will have to comply with the public benefit requirement different measures may be adopted by the Charity Commission to assess different types of public benefit, which means that there can be no overriding set of criteria applicable to all charities.

As the Bill stands, because case law will still provide precedent for interpretation of public benefit, it is unclear exactly how the law regarding public benefit will change in practice.

The advancement of religion is one of the listed charitable purposes but the Bill does not include any definition of "religion". The Bill has been challenged as being in breach of Human Rights legislation because the Charity Commission interprets religion as "founded on a belief in a supreme being or beings and involving expression of that belief through worship". This would exclude non-deity faiths, for example some types of Buddhism, thus potentially infringing the Human Rights Act which entrenches freedom of belief and freedom from discrimination.

Under the Charities Bill, responsibility for the licensing of those making public charitable collections has been transferred to the Charity Commission from individual Local Authorities. This should avoid inconsistencies of approach between Local Authorities.

There is more detail in Schedule 6 than there was in the draft Bill and draft secondary legislation is to be published as soon as possible after introduction of the Bill.

1. the prevention or relief of poverty
2. the advancement of education
3. the advancement of religion
4. the advancement of health or the saving of lives
5. the advancement of citizenship or community development
6. the advancement of the arts, culture, heritage or science
7. the advancement of amateur sport
8. the advancement of human rights, conflict resolution or reconciliation or the promotion of religious or racial harmony or equality and diversity
9. the advancement of environmental protection or improvement
10. the relief of those in need by reason of youth, age, ill-health, disability, financial hardship or other disadvantage
11. the advancement of animal welfare
12. purposes recognised as charitable purposes under existing charity law or by virtue of section 1 Recreational Charities Act 1958 and any purposes analogous to or within the spirit of any charitable purposes.

This Act came into force on 1^st January 2005 and provides for access to information held by public authorities.

Where a public authority receives a request for information it must respond as soon as possible and not later than 20 working days after receiving the request. The reply should both confirm or deny whether the requested information is held and either provide that information or explain why it has not been provided.

As the Charity Commission is a public authority any correspondence you have with the Charity Commission may be the subject of a Freedom of Information Act request.

Similarly, Local Authorities are also public authorities and therefore information provided during a procurement exercise and negotiation of a contract could well be the subject of a request.

Information held by a public authority is not only information held by one of the bodies listed in Schedule 1 to the Act but also information held by another person on behalf of the authority. This means that, if you are providing a service for a public authority, information you hold in the course of provision of that service may well be subject to the information request regime.

Given the recent landmark decision of the Charity Commission that charities can now deliver public services which public authorities have a statutory duty to provide there may be more situations in the future in which charities are themselves acting as public authorities. Before this decision the position used to be that charities could only supplement services which public authorities have a duty to provide rather than deliver such services.

This decision reflects the increased role of the voluntary sector in public service delivery alongside public authorities.

The Act provides for two categories of exemption, absolute and qualified.

In the case of an absolute exemption the public authority does not have to comply with the information request but in the case of a qualified exemption the request should only be denied if the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

Absolute exemptions cover the following:

• information accessible to the applicant by other means;
• information supplied by or relating to bodies dealing with security matters;
• certain court records;
• matters subject to Parliamentary privilege;
• information held by the House of Commons or the House of Lords where disclosure is likely to prejudice the effective conduct of public affairs;
• certain personal information;
• information provided in confidence; and
• information in respect of which there are prohibitions on disclosure.

All other exemptions listed in Part II of the Act are qualified exemptions, for example:

• information held for the purposes of certain investigations and proceedings conducted by public authorities;
• information subject to legal professional privilege;
• information regarding certain commercial interests.

All charities should consider appointing a Freedom of Information Act officer and creating policies regarding the disclosure of information to public authorities.

Consider inserting a confidentiality clause when you are dealing with public authorities and also an obligation on any public authority with whom you are entering into contractual relations to notify you if a request is made that could affect information provided by you. The Act does not oblige a public authority to let you know when a request is received.

© RadcliffesLeBrasseur

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.