CHARITIES AND CHARITY LAW
Charitable Incorporated Organisations
HM Land Registry has published an updated Practice Guide on the property aspects of converting a charitable trust into a Charitable Incorporated Organisation (‘CIO’).Footnote 1 Church of England parishes cannot convert themselves into CIOs, but congregations in some smaller denominations have either done so already or are contemplating conversion.
Charity law in Scotland
The Scottish Government has launched a consultation on Scots charity law,Footnote 2 seeking views on potential amendments to the statutory charity regulation framework in light of proposals put forward by the Office of the Scottish Charity Regulator (‘OSCR’). The proposals broadly focus on changes which, it is hoped, will increase transparency and accountability in order to maintain public trust and confidence in charities and OSCR – principally by broadening OSCR's powers and extending the disqualification criteria for charity trustees by bringing them into line with the criteria in England and Wales. The consultation was to close on 1 April 2019.
Charity law in the Isle of Man
The September Report mentioned the Manx Government's consultation on proposed new legislation to update and improve the island's charity law. The Government has considered the responses and made appropriate amendments to its draft Bill. The consultation attracted 20 responses and they were broadly supportive of the proposals in the Bill, with the creation of a charities tribunal, clarification of the meaning of ‘charitable purpose’ and the improvements in regulatory effectiveness being particularly welcomed by a number of those who responded.
The Government resisted the call of some respondents to remove the advancement of religion from the list of charitable purposes, on the grounds that the objective of providing a statutory definition of ‘charitable purpose’ is to ensure that its meaning in the island remains at least as broad as that in England and Wales, where the advancement of religion continues to be a charitable purpose. However, changes have been made to increase oversight in relation to safeguarding matters, while automatic disclosure to the island's Financial Services Authority has been replaced with provisions enabling disclosure between public bodies and the attorney general for the purposes of the discharge of their respective statutory functions. A number of other, mostly consequential and technical, amendments have also been made to the draft.
CHURCH MEASURES
Four Church Measures received Royal Assent on 20 December.
Church of England (Miscellaneous Provisions) Measure 2018
The Measure makes a series of amendments to the current law, none of which was thought to merit free-standing legislation. Section 1 creates a new power for the Church Commissioners to make grants out of their general fund to the Archbishops’ Council in order to support the work and mission of the Church of England more generally. Section 4 modernises the rules on clergy from outside the parish officiating at funerals in ‘a crematorium, cemetery or other place which is not a church or churchyard’, while the amendments made by sections 4(5)–(7) enable the minister of the parish to arrange for another member of the clergy or licensed lay person to conduct the funeral in his or her place.Footnote 3 Section 4(8) removes the first rubric at the beginning of the Order for the Burial of the Dead in the Book of Common Prayer (which notes that the Order may not be used if the deceased is unbaptised, excommunicate or a suicide of sound mind), in line with the provisions of Amending Canon No 37. Section 5 puts it beyond doubt that the bishop of a diocese, as Ordinary, may commit non-statutory episcopal functions to another bishop of the Church of England. Section 6 makes various amendments to the legislation relating to terms of service. Section 8 makes various technical provision as to fees. Section 9 amends the Constitution of the General Synod in relation to timing of sessions and membership of House committees.
Perhaps the most important provision to the readers of this Journal is section 7. It declares that past and future judgments of both the Arches Court and the Chancery Court of York will be equally applicable to both provinces, so as avoid anomalies between the two. Hitherto, as Singleton Ch pointed out in Newton, the position has been that
In the Consistory Courts, depending on the nature or location of a dispute there are three alternative appeal courts exercising a parallel but distinct reviewing jurisdiction … although Blagdon Footnote 4 is an important and influential decision, the binding authority for the Province of York (including the Diocese of Sheffield) remains Re Christ Church Alsager [1998] 3 WLR 1394.Footnote 5
Section 7(3) provides, however, that the new provision ‘applies to a decision of the Arches Court of Canterbury or the Chancery Court of York made before the commencement of this section (as well as to a decision made afterwards)’.
Church of England Pensions Measure 2018
The Measure consolidates with corrections and minor improvements certain enactments relating to pensions for clergy, church workers and church administrators and their surviving spouses, civil partners and dependants. The principal Measures consolidated by it include the Clergy Pensions Measure 1961, the Church of England Pensions Regulations 1988, the Pensions Measure 1997 and the Church of England (Pensions) Measure 2003.
Church Property Measure 2018
The Measure consolidates, with corrections and minor improvements, a number of enactments relating to dealings with parsonage houses, dealings with and the management of glebe land and the acquisition of new land for church purposes. It also consolidates a number of miscellaneous and general provisions relating to church property. The principal enactments consolidated by the Measure include the Parsonages Measure 1938, the New Parishes Measure 1943, the Church Property (Miscellaneous Provisions) Measure 1960 (in part) and the Endowments and Glebe Measure 1976 (in part).
Ecumenical Relations Measure 2018
The main purpose of the Measure is to extend the scope of the Church of England (Ecumenical Relations) Measure 1988 to include a wider range of Churches, whose members will then be able to participate in Church of England services – for example, by reading lessons or leading prayers and, in the case of the Salvation Army, by preaching. The Measure empowers diocesan bishops to designate denominations that have not so far been designated and to establish formal ecumenical relationships at the diocesan level.
Section 3 requires the House of Bishops to issue a code of practice on ecumenical co-operation with other Churches and obliges clergy, deaconesses, lay workers and readers to have regard to the code in exercising any function under the Measure or under provision made by Canon in reliance on the Measure. The Measure and Canon came into force on 1 February 2019.
CIVIL PARTNERSHIPS
As noted in the last Report, the Supreme Court ruled unanimously – and unequivocally – in Steinfeld and Keidan Footnote 6 that the bar on opposite-sex civil partnerships in sections 1 and 3 of the Civil Partnership Act 2004 is incompatible with Article 14 ECHR (discrimination) taken in conjunction with paragraph 1 of Article 8 (respect for private and family life). Subsequently, the Prime Minister told the Conservative Party conference that the Government would end the ban:
This change in the law helps protect the interests of opposite-sex couples who want to commit, want to formalise their relationship, but don't necessarily want to get married … by extending civil partnerships, we are making sure that all couples, be they same sex or opposite sex, are given the same choices in life.Footnote 7
At the time of writing, the Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill, originally introduced by Tim Loughton as a private member's bill in the Commons, was awaiting its committee stage in the Lords. Replying to the second reading debate, the Minister of State at the Home Office, Baroness Williams of Trafford, said that the extension of civil partnerships to opposite-sex couples in England and Wales remained the firm intention of the Government ‘and we look forward to opposite-sex couples being able to form civil partnerships as soon as possible’.Footnote 8 The Scottish Government undertook a separate consultation on the future of civil partnerships, which closed on 15 December 2018.
ECCLESIASTICAL EXEMPTION IN WALES
The Ecclesiastical Exemption (Listed Buildings and Conservation Areas) (Wales) Order 2018 came into force on 1 January 2019. Under the terms of the Order, conservation area consent will no longer be subject to ecclesiastical exemption, and listed and unlisted buildings and structures within the curtilage of a listed ecclesiastical building will now be included under the ecclesiastical exemption. The Order applies to Wales only: planning and listed building consent being devolved matters.
LAW COMMISSION: WEDDING LAW IN ENGLAND AND WALES
Paragraph 5.52 of the Red Book Footnote 9 published simultaneously with the Budget in October, stated that
England and Wales have outdated laws about how and where couples can marry. The Government has asked the Law Commission to propose options for a simpler and fairer system to give modern couples meaningful choice. This will include looking at reducing unnecessary red tape and lowering the cost of wedding venues for couples.
At the time of writing, the details of the review had not been announced.
EDUCATION IN ‘OUT-OF-SCHOOL SETTINGS’
The Department for Education returned to the issue of informal education with an online consultation on ‘Voluntary safeguarding code of practice: draft guidance for out-of-school settings providers’.Footnote 10 Out-of-school settings (‘OOSS’) are defined as
an institution which provides tuition, training, instruction, or activities to children in England without their parents’ or carers’ supervision, that is not a school; college; 16–19 academy; or provider caring for children under 8 years old which is registered with Ofsted or a childminder agency.
The consultation document includes a non-exhaustive list of what is considered to be an OOSS, which includes religious settings that offer ‘education in their own faith, culture, religious texts, preparation for rites of passage, etc’: yeshivot, madrassahs, Sunday schools and suchlike.
The original proposal for obligatory inspection was extremely controversial; there were fears that, for example, intensive choir practices before a major service might be subject to visits from Ofsted inspectors. The Department says that the new draft code has been developed in consultation with, among others, individuals with a good working knowledge of the major religious faiths. The consultation was due to close on 24 February 2019.
ERSKINE MAY ONLINE
On 13 December 2018, the Leader of the House of Commons, Andrea Leadsom, announced that the new edition of Erskine May, which is due to be published in 2019, will be publicly available on Parliament's website, as well as in hard copy.Footnote 11
LAW COMMISSION: SIMPLIFYING THE IMMIGRATION RULES
At the end of the period under review, the Law Commission announced a consultation on the simplification of the Immigration Rules.Footnote 12 The project does not consider any issue of substantive immigration policy but focuses on how the Rules are drafted and presented. Since their introduction in 1973, they have grown to around 1,100 pages and have been criticised for being too long, complicated and difficult to follow – with an adverse effect not only on applicants but also on Home Office caseworkers.
As well as looking at proposals aimed at simplifying the Immigration Rules and making them clearer and more comprehensible, the Commission is asking for views on whether a less-prescriptive approach in the Rules, or parts of them, would aid simplification by creating a structure of shorter, more general Rules supported by non-exhaustive or illustrative guidance that would not be mandatory. The objective is for a set of Rules that are clear, accessible and organised in a way which meets the needs of users. The consultation was to close on 26 April 2019.
NON-THEOLOGICAL TRAINING FOR ‘FAITH LEADERS’
In November, the Ministry of Housing, Communities & Local Government (‘MHCLG’) invited bids from prospective training providers interested in delivering non-theological, voluntary training for faith leaders.Footnote 13 The Integrated Communities Strategy Green Paper, published in March 2018, included a commitment to supporting non-theological, voluntary training for faith leaders; MHCLG said: ‘We want to support places of worship to have well-qualified, informed and confident faith leaders, who understand their rights and responsibilities, so they can better support their congregations.’
At a minimum, MHCLG expects the training to ensure that faith leaders will be able to teach their congregations about their rights and responsibilities and be able to identify issues, support affected individuals and signpost people to relevant guidance, legislation and support services in the areas of domestic abuse, forced marriage, female genital mutilation, child sexual abuse and mental health.
SAFEGUARDING
In October, the Charity Commission published additional advice within its guidance on safeguarding and reporting serious incidents, following a series of summits and policy announcements. The additions focused on protecting staff and volunteers in a charity, working with children and adults at risk, and working overseas.
In January, the Church of England published its own guidance from the House of Bishops on reporting safeguarding and other serious incidents to the Charity Commission. All parochial church councils (‘PCCs’) and diocesan boards of finance (‘DBFs’) and most religious communities are charities, and their trustees are required to report any serious incidents – both safeguarding and non-safeguarding – to the Commission. The guidance seeks to explain what needs to be reported as a serious incident and sets up a system which provides for the reporting of all serious safeguarding incidents by PCCs to be through their dioceses. The Charity Commission has approved the guidance and has also agreed to the bulk reporting of serious safeguarding incidents by DBFs every six months unless an incident is very serious: for example, if it presents a live risk, in which case it must be reported immediately. Religious communities (except closed communities which are not charities) will continue to report directly to the Charity Commission.
The new guidance does not change the way in which PCCs must deal with safeguarding: the House of Bishops’ policy must still be followed and any safeguarding concerns or allegations must be reported to the diocesan safeguarding adviser within 24 hours.
VAT: MAKING TAX DIGITAL
From 1 April 2019 all VAT-registered businesses (including charities) with a taxable turnover above the VAT threshold (currently £85,000) will be required to keep their VAT business records digitally and submit their VAT returns using software compatible with HMRC's Making Tax Digital system.Footnote 14 In January, HMRC published an updated version of its ‘VAT notice 700/22: making tax digital for VAT’, which explains the requirements and exemptions.Footnote 15 It includes updates on digital record-keeping requirements and should be read by all VAT-registered charities. Crucially, HMRC has accepted calls for the ‘soft-landing’ period to be extended to 12 months after the mandated start date. In practice, this means that charities that already have a deferred start date of October 2019 will not have to implement full digital links at the back-end of their VAT processes until October 2020, six months later than the original April 2020 implementation date; however, charities with a mandated start of April 2019 will still need to have digital links implemented by April 2020.
AND FINALLY…
On 28 November in the House of Lords, Lord Berkeley (Lab) asked Her Majesty's Government ‘what assessment they have made of the case for the disestablishment of the Church of England’. To which Lord Young of Cookham (Con) replied on behalf of the Government, ‘My Lords, none.’Footnote 16
