New participatory democracy
My Welsh socialism
My New Socialist
Globalise the left!
item0041C 714, 715
7 May 2003
Leave charities alone
As a "natural"
I have ideas about changing most things about our civic order. But I
shall be resisting the current fashion for modernising"
charity law. Leading commentator Malcolm Dean backs the cause of radical
reform, writing in
I know I must sound like a fuddy-duddy,
legalistic, conservative. And this case is not easy to argue, to a "lay"
audience. But let me try.
There is a key systemic difference between
traditional judge-made common law and the written statutory codes of Acts of
Parliament. The difference is one of style, rather than substance -
but it is nevertheless of great importance.
In Common Law systems, the basic
abstract, ideas which inform the adaptation of the law to changing
social circumstance, and which are applied by the Judges to new cases as
they arise. No attempt is made to formulate any overarching
"declarations" of the law as a whole,
but the coherence of the body-of-principle is tested and re-examined by the entire legal profession, as
circumstances change. Where inconsistencies arise, they are resolved
by the most senior Courts, by the most experienced judges. And such a
system is always ready to adapt to change, with far greater flexibility than
any system of statutory law.
In statutory systems, Parliament is
effectively "giving written instructions" to the legal profession to behave in a particular way
and to apply the written law to new cases as they arise. Such
instructions must be coherent and internally consistent, or else injustice
will certainly be done - and there are always examples of that.
And such instructions can only be changed in the same way, by parliamentary
legislation - defective laws
cannot be modified by the judges, and must await the renewed attention of
the lawmakers. It is a far more rigid system of law.
With one solitary exception (a limited
intervention by Parliament, for recreational charities, in 1958) the
definition of a charity is a matter of common law, not statute. Over
the last 500 years, the Courts have tussled with the gradual adaptation of
the law to changing circumstance. The Victorian era was a great period
of charity innovation - animal welfare, child welfare, aesthetic education,
abolition of slavery, the libraries of Andrew Carnegie, the "public" schools
- all of these changes were regulated by the Courts, without Parliamentary
intervention, re-interpreting established principles. Innovations did not have to wait in a Parliamentary queue:
social entrepreneurs could get ahead, working within a flexible common law
framework, subject to supervision by the Chancery Division of the High
Court. I am keen to retain the inherent flexibility of that style of
I do not oppose
managerial changes, to ensure the more effective management of all
charities, improving the Charity Commission and securing the good name and
honourable reputation of the charitable sector - my concern is with the
core definition of a charity, and
the manner of its constant adaptation, not
with ancillary matters of administration.
Nor do I oppose-
I would positively
advocate - the formulation of a new statutory code for a new
form of public interest company,
resembling charities but differing for certain purposes, and
performing different functions from traditional charities. Given
modern legislative convention, it is only Parliament that can innovate in
this way, and a statutory code would be entirely right.
I suspect that this is of greater interest to lawyers than to
clients... But either way, I would value a note from you - drop me a line
Back to Home Page
12 May 2003
of my fellow-citizens will understand the anguish of being trapped, as a
thinking, middle-o'-th-road leftwing radical, within today's Labour Party.
The Party is going through a dark and uncivilised period of its history,
with its leaders pandering to the very worst in public opinion, terrified of
occupying any principled positions.
For, to be trapped inside the Party is to be appalled at the amorality of an
unprincipled Prime Minister, to be battered by the cultural illiteracy and
insensitivity of David Blunkett, to be harassed (as a committed mediaeval
historian myself) by the intellectualised thuggery of Charles Clarke,
having to observe the pantomine persecution of George Galloway by the
hapless Party policeman David Triesman, as well as the spineless subservience of
Jack Straw, both to Tony Blair and to George Bush.
Even the honourable Chris Mullin MP has succumbed to the use of prejudiced
popular language in his Committee's warning that the UK could be
"overwhelmed" by asylum-seekers. These are
dark days for the Labour Party, even though the
fault-lines do not yet show up in the opinion polls. That is because
Labour is merely mimicking, parroting, the brutality of the mob - rather
than leading its people.
The amorality of the Prime
Minister is somehow heightened by the sickly overlay of
religiosity with which he seeks to endow his deliberations and decisions.
His decision to back Bush on Iraq was based upon his desperation to stay
firmly in the Americans' good books. retaining his teacher's pet status.
History will, I believe, demonstrate that this was no more than an act of
weak sycophancy, however skilfully embroidered.
David Blunkett's has become
a joke Tory Home Secretary, far worse than Michael Howard in
his prime. He is wrong to
demonise asylum-seekers. He is wrong
to demonise the human rights lobby as he does. He is
wrong to promote "Britishness" training, and
nationalist rituals for the induction of naturalised citizens. He is
wrong to put the judges into
straitjackets, for no better reason than political self-aggrandisement - for
there is no objective justification for his proposed sentence-legislation.
He is a disaster, for the good name of the Labour Party.
- the well-educated son of a knighted senior Civil Service mandarin - has no
excuse for the "uncivilised thuggery" (to quote a Cambridge don) of his
attack on mediaeval history. His own education was one of value-free
number-crunching (Mathematics, Economics) at Kings College Cambridge.
Mine was in History (particularly mediaeval history) also at Cambridge: I can
testify that my mediaeval history studies were the most important of my
educational career - difficult, challenging, demanding, inspiring - the
techniques and lessons that I learnt there have remained with me ever since.
My specialist subject at Cambridge was Relations between Church & State in
France between 1438 and 1484 - that was a very "big" subject indeed,
with many ramifications for contemporary Europe.
Charles Clarke kept digging
his hole, in a long personal letter-of-defence to The Guardian.
His search for an underlying rationale for the state funding is too
collectivist - I say that the rationale is related to the entitlement of
each person to approproate necessary support in the pursuit of personal
fulfilment - I say that in trying to develop a
collectivist rationale he is barking up the wrong tree - check out
his letter yourself, in The Guardian
deeply ashamed that my Party has drifted, without any guiding body of
principle, into this haphazard brutality, insensitivity, and illiberality.
The explanation lies partly in the emergence of a
professional salariat who - quite literally - rely for
their livelihood upon following the mob - and
cannot afford to act upon their principles. It will be
long haul back to the kind of decency and sense of fairness and mutual
respect of which the Labour Party at its best is capable.
If this resonates with any other
trapped radicals, drop me a line
Back to Home Page