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7 - How the Commission's powers to remove charities from the register may be affected by changes to the law of charitable status

Published online by Cambridge University Press:  23 July 2009

Robert Meakin
Affiliation:
Stone King Sewell LLP
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Summary

Introduction

This chapter examines the effect of the Human Rights Act 1998 and the Charities Act 2006 on the Commission's powers to remove charities from the register.

The Human Rights Act 1998 could restrict the ability of the Commission to remove institutions. As public authorities, both the court and the Commission have a duty to exercise their powers in conformity with the Human Rights Act 1998. It is a basic proposition of this book that there is a problem of legality with the Commission deciding that an institution is not a charity and removing it from the register. It has been shown that there are so few decisions of the court determining what is charitable in law that the Commission is forced into becoming a de facto lawmaker. It has already been shown that, in practice, the Commission often has to second-guess what the court would decide if faced with the same facts. Following the Human Rights Act 1998, if the Commission does second-guess the court, it will need to take into account that the court would interpret charity law in accordance with Convention rights.

When exercising its power of removal, under section 3(4) Charities Act 1993, to remove an institution on the ground that the Commission no longer considers it to be a charity the Commission will need to consider Convention rights which are potentially relevant to all charities, namely Article 1, Protocol 1: Right to Property and Article 14: Freedom from Discrimination in Respect of Convention Rights; and specific Convention rights, namely Article 9: Freedom of Thought, Conscience and Religion; Article 2, Protocol 1: Right to Education, and Article 10: Freedom of Expression, which are potentially relevant to particular categories of charity.

Type
Chapter
Information
The Law of Charitable Status
Maintenance and Removal
, pp. 126 - 170
Publisher: Cambridge University Press
Print publication year: 2008

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