DCH 140 Royal Society for the Prevention
of Cruelty to Animals
Introduction
1. The Royal Society for the Prevention of
Cruelty to Animals ("RSPCA") was established in 1824
and its purposes are to promote kindness and to prevent or suppress
cruelty to animals. Its status as a charity was confirmed by the
courts as long ago as 1864. 100 years later, the RSPCA was entered
onto the central register of charities introduced by the Charities
Act 1960. In 2003, the RSPCA's income was £83.875 million
and its expenditure was £79.28 million. It is one of the
largest (and oldest) animal welfare charities. There are also
178 RSPCA branches, each registered as a separate charity in its
own right.
2. The RSPCA has previously responded to the
consultation on the Strategy Unit's recommendations and we are
grateful for the present opportunity to submit written evidence
to the Joint Committee considering the draft Charities Bill.
The contents of the draft Bill were signposted by the Government
in its response to the Strategy Unit's review published in July
last year. The draft Bill therefore contains few surprises.
3. We have read the written evidence already
submitted by the Institute of Fundraising concerning Part 3 of
the draft Bill and we agree with it.
The definition of charity and the public
benefit
4. The Government stated that, arising from
the consultation on the Strategy Unit's recommendations, there
had been considerable support for the inclusion of three further
heads of charity, including the promotion of animal welfare. The
draft regulatory impact assessment acknowledges that these purposes
"have strong public recognition. Their inclusion as specific
purposes in their own right will help align the legal definition
of charity with the public understanding of what is charitable".
Obviously, we endorse that view and are delighted that "the
advancement of animal welfare" is included in clause 2(2)(k)
of the draft Bill. Recognition of public benefit is something
we have tested in connection with our own animal welfare work.
We refer to the results of a MORI public opinion survey carried
out in December 2001 set out in the attached annex. It showed
that 77% agreed that the work the RSPCA does for animals benefits
the public. We believe the objective of updating charity law
cannot be fully met without including the advancement of animal
welfare as a description or head of charity in the list of charitable
purposes set out in clause 2(2) of the draft Bill.
5. A charitable purpose must not only fall
within the list of purposes set out in clause 2(2) but must also
be for the public benefit. For the purpose of the new definition,
the common law meaning of public benefit will apply (subject to
the removal of any presumption of public benefit). Other jurisdictions
have developed statutory definitions of public benefit but it
is arguable they have not clarified the law in a meaningful way.
Whilst the RSPCA agrees that the common law approach is to be
preferred, it should be acknowledged that court decisions in this
field are few and far between. The introduction of the charity
appeal tribunal will make access to the courts even more remote,
particularly as the explanatory notes on the draft clauses refer
to the tribunal acting as a court of first instance.
6. We agree with NCVO that the "social
and economic impact" objective in clause 5 of the draft Bill
should be replaced. We share NCVO's concern the objective may
be used to determine public benefit and agree that the Charity
Commission's existing function of promoting the effective use
of charitable resources is more appropriate.
Charity Appeal Tribunal
7. The draft regulatory impact assessment
states that charities will not have to pay to use the tribunal.
It is not clear to us what this means, other than there would
be no fee payable in exercising the right of appeal. Legal costs
are likely to be the major source of expense incurred by charities
and other persons that may make appeals to the tribunal. We believe
the position on costs needs to be clarified. The draft regulatory
impact assessment estimates that cases will take between three
and seven working days each. The Charity Commission has estimated
that their costs of processing appeals would be between £150,000
and £250,000 each year. It is unclear whether the Charity
Commission would be able to recover its costs from other parties
to an appeal. Clause 2B of the draft Bill simply provides the
Lord Chancellor with power to make rules about the award of costs
but goes no further.
8. In view of the constitutional position
of the Attorney General, it would seem appropriate that papers
relating to all proceedings before the tribunal should be sent
to him as of right, rather than this being left to the tribunal's
discretion. In view of the likely costs involved in arguing a
case before the tribunal, it is unlikely that many decisions would
subsequently be challenged in the courts. In these circumstances,
a heavy burden will fall on the Attorney General to ensure the
proper development of the law. We believe that the Bill should
provide for the Attorney General's costs to be paid out of public
funds and not borne by the charity or other parties to an appeal.
The Charitable Incorporated Organisation
(CIO)
9. The Strategy Unit recommended that a new
legal form designed specifically for charities should be introduced
and that there should be transfer mechanisms to ease conversion
from other incorporated forms. The draft Bill proposes that unincorporated
charities may transfer all their property to a CIO and that charitable
companies and registered friendly societies may apply to the Commission
to be converted into a CIO. The RSPCA is incorporated by a special
Act of Parliament and does not appear to fall within the definition
of "charitable company" provided in the draft Bill.
There are a number of other large charities incorporated by similar
means or by royal charter. We believe the Bill should be amended
to provide all such charities with the power to convert into a
CIO.
21 June 2004
see Tatham-v-Drummond [1864] 4 De G J &
S 484
copies of the RSPCA's submission to the Strategy
Unit are available on request
eg The Charities Act, the Laws of Barbados,title
XVIII,chapter 243 LRO 1989; also see the Charities Bill 2003 exposure
draft published on behalf of the Parliament of the Commonwealth
of Australia.
See page 58 of "Private Action, Public Benefit"
report (September 2002)
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