Human Rights and Charity Law

International Perspectives

Kerry O'Halloran

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317352877
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

The 60 or so nations that subscribe to the common law tradition had for centuries broadly accepted the same legal definitions of what constitutes a charity. In recent years, however, a number of countries have embarked on charity law reform processes, designed to strengthen the regulatory framework and to review and encode common law concepts. A primary driver of reform was the need to modernise national charity law and ensure human rights compatibility. In light of these reforms, this book takes stock of how charity law is adapting to face the challenges presented by human rights.

The book identifies the key areas where human rights and charity law intersect and examines the importance of those areas, the principles involved and their political significance. It offers a comparative analysis of selected common law countries including England, Wales, Ireland, US, Canada, Australia and New Zealand, assessing the extent of national human rights and charity compatibility. Kerry O'Halloran also goes on to consider tensions arising from the intersection of human rights and charity law, including the significance of cultural values and heritage, the importance of proportionality and striking a balance between public and private interests in current society.

Part I
Background

1
Frames of reference, boundaries and social context

Introduction

Arguably, ‘charity’ and ‘human rights’ are positioned at opposite ends of a legal spectrum of benign intervention in the affairs of citizens. The former is essentially discretionary, any assistance offered – relevant or otherwise – resting on the whim of a donor and, as legally defined, restricted to charitable purpose beneficiaries. The latter is available on demand as need requires and designed to assertively redress instances of social injustice. This view sees both as formally recognising that the normal functioning of society can leave individuals and groups exposed and vulnerable: they share a concern to set thresholds for intervention, protect the disadvantaged from abuse or exploitation and to prevent or offset the undermining of socially acceptable values and standards. It is a view that necessarily presupposes a democratic society in which policy places importance on maintaining the checks and balances necessary to promote pluralism, a sense of fairness and overall social coherence. This chapter explores the reality behind such a perception, examines the laws governing both frames of reference, considers other forms of mediation and establishes their respective boundaries.

The chapter, accordingly, falls into two halves. It begins by considering the primary modes of mediating on behalf of those in need. Starting with charity and the ‘gift relationship’ as conceived by Titmuss,¹ it briefly summarises other forms of mediation. It then focuses on the advantages offered by legal rights and examines more closely what might be seen as the two mutually exclusive approaches: charity and legal rights. It outlines and analyses the frames of reference provided by legal rights, justice and charity, drawing attention to the distinction between ‘charity’ as it is commonly understood and as legally defined. It leaves to Chapter 2, a more detailed examination of both the legal meaning of ‘charity’ and the extension of legal rights into fundamental human rights; and to Chapter 3, an analysis of the legal system as it relates to charity and human rights. It notes and reflects on areas of boundary permeability, identifying and evaluating themes common to rights and charity in a modern common law social context.

As the legal functions of charity and rights are dependent upon social context, the second half begins with an overview of social liberalism, as this is the democratic model of society shared by the common law nations currently being studied. It briefly identifies and considers the distinguishing characteristics of this model compared with others, reflects broadly upon the significance of politics and political ideology, before focusing on the current primary relevant social policy concerns of government in those nations. It gives particular attention to the key concepts of ‘social capital’ and ‘civil society’, the roles and expectations prescribed to them in the post-9/11 era, and discusses the meaning, cause and effects of the phenomenon known as the ‘culture wars’. It considers the relationship between that phenomenon and the roles of charity and legal rights and assesses any implications arising for building and consolidating civil society.

Charity as a mode of mediation on behalf of those in need

The Bible advises or admonishes that ‘the poor you will always have with you’,² the corollary being that charity will similarly always be assured of a role in society. For some resigned to this symbiotic relationship there is consolation to be found in the opportunities thus provided for demonstrating virtuous behaviour which serves to alleviate hardship, develop altruistic methods of mediation and generate the civic engagement that helps bond communities and promote social cohesion. The ‘gift relationship’ as conceived by Titmuss and outlined below is an exemplar of such a viewpoint.³ For others, there is the view that charity has always been the foil of capitalism: it being seen as politically expedient to leave to charity the needs of those who fail and must pay the price for a society driven by the competitive forces that constitute an ‘open market’ economy. A capitalist society requires winners and losers, and charity is assured of a permanent role in such a society in order to rescue the victims, salve the conscience of the successful and paper over the cracks sufficiently to allow capitalism to continue. Neither view does justice to the more nuanced role of charity, as legally defined, in the modern common law nations that are the subject of this study.

The ‘gift relationship’

The moral and sociological intricacies that characterise the involvement of the parties engaged in acts of charity have been explored by Titmuss in what he has called ‘the gift relationship’ which he saw as epitomising the customary social interpretation of that concept. He examined the act of ‘giving’, seeing it as the voluntary and altruistic act of an individual, and compared it with a commercial system in a study which focused on blood donors. The contrast, as he saw it, was between ethically based behaviour and behaviour motivated by self-interest. In the former instance, the National Blood Transfusion Service in the UK provided a service to which blood donors made anonymous contributions without financial or other reward and from which recipients took according to need, incurring no cost and without knowing the identity of the donor. In Titmuss’s view, this free gift of blood left the relationship between giver and recipient uncompromised by any ‘contract of custom; legal bond; functional determinism; situations of discriminatory power; … domination, constraint or compulsion’.⁴ On the other hand, he considered that the alternative approach to the same service in the US reduced people’s willingness to donate blood because the transaction had become tarnished by commercialism causing such adverse consequences as the repression of expressions of altruism and an erosion of a sense of community. This ‘gift relationship’, it has been argued, is something that can bond us as a society.⁵

Altruism

Titmuss considered that the reason why people donated blood without direct reward, at a cost of their own time and effort, to another with whom they have no direct contact, was altruism. A regard for the needs of others was the principle that motivated their action. Donors showed a high sense of awareness of belonging to a community and of social responsibility. It followed that it was important for the State to provide the opportunity for individuals to express their commitment to the community in which they lived; indeed, he developed this theme in his final chapter, ‘The Right to Give’. This right was to be valued in a democracy both for its own sake, and, because it demonstrated altruism, it would thereby encourage others to become givers.

However, while this was true in relation to blood donation – which was within the gift of any citizen, was given anonymously, and in respect of which any citizen may need to be a recipient – the transaction was unrepresentative. An act of giving per se certainly modelled ethical conduct and generated a sense of shared morality and civic responsibility in communities, but the Titmuss example was exceptional, as such acts were generally not anonymous and were directed wholly at donor discretion. This was explicitly true in respect of charitable gifts as defined in law, which further constrained a donor’s freedom of action by requiring the gift to be directed towards recipients with the group characteristics prescribed by a particular charitable purpose. The fact that the giving is done on the basis of selection – positively discriminating in favour of designated beneficiaries to the exclusion of all others – is an aspect of charity law that fundamentally questions its compatibility with contemporary human rights provisions.

The gift relationship and the State

For the State to endorse the gift relationship is to affirm a value system that encourages altruism, reinforces a sense of obligation, stimulates social capital, provides a basis for community bonding and builds a more ethical society. The State can only gain from endorsing conduct that attracts the involvement of an army of volunteers, bolsters civic responsibility and thereby fosters the growth of social capital, strengthens the community’s ‘moral tie’⁶ and consolidates civil society.⁷ In addition to being a catalyst for a more civil and morally based society, the encouragement of altruistic conduct also has the happy consequence of reducing State expenditure.

The ‘price’ of the gift relationship

Undeniably there is baggage attached to the gift relationship: the price to be paid for ‘the right to give’ is costly.

The position of the recipient is compromised. The gift is always an acknowledgement of deficit. The fact that the recipient recognises and is comforted by the inherent virtue of the giver, who may have given anonymously, and values and uses the gift as intended, does not necessarily mean that they thereby become any better equipped to cope. For the recipient, the psychological dynamics of the gift relationship can all too often serve to single them out and isolate them within society, confirm personal or group inadequacy and induce long-term compliant dependency.⁸

The status of the donor, and/or that of the charitable organisation that gives effect to the gift, is elevated. Registration as a charity confirms the special status of an organisation dedicated to furthering the public benefit of the disadvantaged, and in the eyes of society confers upon it the stamp of virtue. This may well attract personal awards and privileges, granting political access and leverage to those whose particular charitable cause currently finds favour with government, with possible follow-on opportunities to bid for service provision contracts. As neither the charity nor its representatives are necessarily any better than others in their field, nor necessarily positioned where social need is most acute, their elevated status can result in distorted perceptions of social priorities, generate dissension and detract from effective interagency co-ordination.

For the State, endorsing the gift relationship comes at a price, as it has to forego both the considerable tax revenue to which it would otherwise be entitled and with it the right to choose which areas of social need should benefit from that tax quotient. The latter, of course, also provides wealth redistribution opportunities which can allow the State to institutionalise altruism as a significant hallmark of social democracy. Determining the category of beneficiary to be singled out as particularly socially disadvantaged, together with the type of related gift qualifying for charitable status and thus for tax exemption are, after all, clearly social policy matters of importance to any government. In circumstances where health services are suffering from lack of government funding while charitable donations make animal refuges among the wealthiest charities in the State, this can be a very real dilemma.

The effects of social labelling, of overt, if positive, discrimination and possible substitution for entitlements – which to a varying extent are intrinsic to the process of charitable intervention – can inhibit the capacity for more strategic intervention and bring charity into conflict with fundamental human rights. Arguably, if charity as legally defined is to find a credible role in modern society, one that sits respectably alongside social justice, human rights and politics, this will have to involve the real...