Further memorandum from the Royal Television
Society (DCH 340)
INTRODUCTION
1.1 The RTS submitted written evidence to
the Committee on 23 June 2004 making observations on the public
benefit test and the withdrawal of the presumption of public benefit
for educational charities such as RTS. In the light of subsequent
evidence submitted to the Committee since then and the Committee's
own examination of that evidence, we wish to submit some supplemental
suggestions from the perspective of a functional educational charity.
1.2 Our initial submission made some tentative
suggestions about the manner in which the Charities Bill might
address the uncertainties that will be created by the withdrawal
of the presumption of public benefit. This submission develops
those submissions by suggesting an appropriate statutory scheme
which the RTS would be able to operate under without damage to
our aims and objectives.
STATUTORY CODE
2.1 The RTS remains of the view that it
will be extremely difficult—if not impossible—for
there to be enshrined in statute a public benefit test that is
both clear and at the same time sufficiently flexible to accommodate
the entire voluntary sector. However, based upon our experience
of regulation in the communications sector, it seems to us that
the Charities Bill might contain a regime with some or all of
the following features:
(a) That the Commission would have as one
of its statutory objectives (Clause 5 of the Bill) the clarification
and codification of the "public benefit" test.
(b) The Commission's proposed second general
function ("Encouraging and facilitating the better administration
of charities") should be expanded by including in that function
the production of a code (by which it will abide) defining the
"public benefit" test for (at least) the current first
three heads of charity. Different codes might be needed for different
types of charitable activity. The purpose of this code would be
to enable charities such as the RTS to determine more easily on
a day to day basis whether or not specific activities fit recognised
concepts and therefore promote a co-regulatory approach.
(c) The Bill might require the code to recognise
in its formulation (ie have regard to) such common principles
as can be discerned from the current common law (which might be
listed in the Act).
(d) The Act should also require the Commission,
in formulating the code, to consult with a body of lay people.
2.2 Given the apparent widespread concern
about the vagueness of the public benefit test for (amongst others)
educational charities, it does seem to us that such a regime might
provide the necessary impetus to clarify this area of the law
quickly. On the other hand, we should emphasise that we are not
suggesting that the code formulated by the Commission should be
regarded as definitive. In other words, its interpretation should
be open to appeal to the Charity Appeal Tribunal by any charity
that considers it is being misapplied to its activities or is
inconsistent with the common law. We would in this context reiterate
our remarks in relation to the need for the Tribunal to be easily
accessible to all charities.
2.3 We are not suggesting that the "guidelines"
should create some sort of straight jacket that might itself require
extensive interpretation or reinterpretation by the Tribunal or
the Courts. Rather, they might provide a useful mechanism by which
Parliament might monitor the formulation of the code and examine
the Commission's interpretation of the underlying common law if
it appears to Parliament that the code is at odds with the suggested
guidelines.
CONCLUSION
3. We recognise that the approach suggested
above will put additional demands upon the resources of the Commission,
but in our judgement this would be no greater than might be created
by leaving the public benefit test in its current state of uncertainty.
We are not optimistic that the alternative approach suggested
by the Commission (that charities should club together and produce
their own guidance in consultation with the Commission) is a reasonable
short term solution.
July 2004
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