DCH 342 Further memorandum from Henry
Broadbent
COMMUNITY CAPACITY BUILDING
vs PUBLIC BENEFIT
In 1949 the House of Lords upheld
the decision of the Court of Appeal to affirm the ruling of Jenkins
J in Gilmour v. Coats
that a gift made to a Roman Catholic priory could not be settled
on trust because the objects of contemplative orders were not
charitable. Lord Simonds declaimed that 'the value of intercessory
prayer is a tenet of the Catholic faith' so that the benefit conferred
upon the public by such orders 'is manifestly not susceptible
to proof' (1949 : AC at 446).
In September 2002 the Government's
Strategy Unit published its consultation document on charity law
reform entitled Private
Action, Public Benefit. One of its main recommendations is
for a unilateral public benefits test, that does not allow for
any presumptions, to assess the objects of organisations currently
on the Register of Charities and those applying for registration
in the future. If an organisation fails to 'positively prove'
the benefit it delivers to the public its assets and resources
will be transferred, in an application of the cy-pres principle,
to a similar organisation whose objects happen to pass muster.
This is considered the best way to up-date and reform charity
law in the light of contemporary social conditions.
But how will those organisations
fare whose goals are not amenable to objective scrutiny such that
it is not always possible to positively and unequivocally demonstrate
the benefit they deliver to the communities they serve ? Will
the assets and resources entrusted to their care be handed over
to a similar organisation whose objects are nevertheless adjudged
charitable under the crude formulations of the proposed one-size-fits-all
'public benefit' test? Is there an alternative to the public benefit
test and its blanket requirement for tangible and 'positive' proof
?
Is
a public benefit test as radical and reforming as at first sight
it appears ?
The concept 'public benefit', as
a determining legal device, can trace its origins back to the
early years of post-Reformation England. In fact it can be seen
to be symbiotically linked to the doctrine of superstitious uses
which grew up around Reformation legislation. If a gift was made
for a purpose that conflicted with public policy then such was
deemed to be 'superstitious', not in the public interest and therefore
void. The underlying assumption was that the detailed provisions
of public policy exhaustively encapsulated what was in the public
interest.
For instance, in Da
Costa v. De Pas (1754) a bequest was disposed to a trustee
to apply the income in maintaining an assembly for daily reading
the Jewish law and for advancing and propagating the Jewish religion.
Since this was considered to encourage schism from the established
church, whose hegemony was regarded as comprehensive, it was held
to be void ; consequently the funds were directed to be applied
to the furtherance of the Christian religion as this was represented
by the Anglican communion.
Eamon Duffy in The
Voices of Morebath charts the gradual transformation of charitable
giving during the vital years of the Reformation (1520 to 1575)
away from causes celebrating spiritual goals transcending the
narrow considerations of capricious public policy, to those with
avowedly utilitarian and secular ends. He graphically illustrates
the point saying:
`The English Reformation
… established the rule of thumb that anything given to the
glory of God was liable to end up, sooner rather than later, being
confiscated by the Crown and turned into a gun or a soldier's
coat'
(2001 : 182)
Tudor monarchs, it would appear,
construed that the public benefited more from aggressive military
campaigns for their glory and that of the realm than they did
from participation in vibrant parish community life.
Given this historical background
two important issues come to light :
- it is difficult to disentangle
definitions of public benefit from the interests and concerns
of those who wield political power such that it is vulnerable
to manipulation by the dominant political forces of the day
- the application of a public
benefits test is not a forward-thinking reaction to the diversity
and cultural pluralism of contemporary post-modern society but
rather the reinvention of an old and tired concept which emerged
from very different social, economic and political conditions.
The implications of a Public Benefit
test
In Compact
on Relations between Government and the Voluntary and Community
Sector in England the government acknowledges the importance
of an independent voluntary sector for the 'well-being of society'.
It says :
'The undertakings of Government are
… to recognise and support the independence of the sector,
including its right within the law to campaign, to comment on
Government policy and to challenge that policy ...'
(1998 : 4)
However, if the proposed public-benefit
test only bestows charitable status on those organisations who
further the public interest, as this is represented by public
policy, then the legitimate role of these organisations 'to campaign,
to comment on Government policy and to challenge that policy'
is effectively made redundant. The independence and ability of
the sector to subject policy decisions to critical scrutiny is
lost to the detriment of society and its ultimate well-being.
What is the alternative to a Public
Benefits test ?
Instead of assessing the charitable
character of an organisation's activities by referring these to
the prescribed aims of public policy in a 'top-down' process,
what an organisation does should be evaluated in terms of the
contribution it makes to building up community through the development
and cultivation of human potential. This 'bottom-up' process beginning
with the individual rather than politically-motivated public policy
considerations is often referred to as 'community capacity-building'.
In a recent Demos report Inside
Out …Rethinking Inclusive Communities (IO) it was
said to rest on the following principle :
' …that investing in
the human and social capital of marginalised individuals and groups
enables them to develop the capacities needed to thrive, and to
play an autonomous role in developing and renewing their communities.'
(2003 : 6)
It does not start with a fixed idea,
determined by government, about what society is, which is then
used to filter out those organisations who, in service to their
beneficiaries, may be obliged to challenge this view. Instead
it allows for a dynamic and emerging vision of social life that
has room for and draws upon all human capacities discriminating
against and excluding none. The ethos animating activities which
build up the capacities of communities is suggested by the term
'empowerment'.
This process pushes the goals of
social inclusion beyond the mere provision of services to passive
recipients who are caught up in dehumanising and often undignified
relationships of dependency. Instead it implies ' a transformative
experience for the individual, who transcends the relationship
of dependency with a paternal and controlling state by discovering
his or her own capabilities and capacity for autonomous action'
(IO:15). Community capacity
building therefore has the ability to repair the social fabric,
frequently rent in two by those excluded from full participation
in social life, by engendering an all-inclusive level playing
field.
How would a Community Capacity-Building
test impact on religious organisations?
In their publication The
Promotion of Community Capacity Building the Charity Commission
are fully cognisant that organisations who endeavor to build capacity
within communities will not on every occasion be able to positively
prove the beneficial effects of their activities. They say :
'We would not expect promoters
to show precisely what benefits activities would deliver. But
we would expect them to explain what sort of activities the organisation
intended to carry out
and why they would be capable of making a difference to
the abilities of the members of the community in question.'
(A16)
Conclusion
The counsel of the Carmelite Priory
argued :
' …as appears from
the Apostolic Constitution Umbratilem
… the prayers and other spiritual penances and exercises
in which the nuns engage for the benefit of the public, in fact
benefit the public by drawing down upon them the grace of God
…
(1949 : AC at 431)
If their appeal for charitable status
were assessed using the criterion of building capacity within
communities it is conceivable that the activities of the Roman
Catholic priory today would pass muster : they would certainly,
at the very least, 'be capable
of making a difference to the abilities of the members of the
community in question'. As Pope Pius XI says in Umbratilem
(1924) :
'…unless they who assiduously
fulfill the duty of prayer and penance drew down from heaven
a shower of divine graces to water the field that is being tilled,
the … laborers would reap forsooth from their toil a more
scanty crop.'
(12)
July 2004
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