Demanding Service or Servicing Demand? Charities, Regulation and the Policy Process

Publication Date01 Mar 2008
DOIhttp://doi.org/10.1111/j.1468-2230.2008.00690.x
AuthorAlison Dunn
Demanding Service or Servicing Demand? Charities,
Regulation and the Policy Process
Alison Dunn
n
Charities in the Victorian era werecharacterised by the notions of ser vice and pressure, acting as a
shield and a sword for social change. Charities continue to pursue such policies, but do so at the
behest of state agendas on public service provision and civic engagement. This article examines
the regulatoryand pol icychalle nges of the service and pressure dynamic, focusing upon the pro-
vision of public services by charities,co nsidering the decision of the Charity Commission in the
cases ofTr a ¡ o r d andWig an, and the hurdles faced by charities wishing to pursue a political agenda
alongside the state’sconcern with protectingagainst terrorism.The article concludes byconsider-
ing the arbitrary choice made withi n the regulatory framework between acceptable and u naccep-
table political conduct and the focus upon good governancei n charities and the issues which ar ise
under section 6(3)(b) of the Human Rights Act 1998.
INTRODUCTION
Charities and their modern legal structure were born out of an overtly political
climate. The Preamble to the Statute of Charitable Uses 1601 was reputedly
enacted to quell possible social disturbances and formed part of a systematic and
tight programme of Elizabethan social reform.
1
Charitable purposes may well
have developed apace since the seventeenth century, but they have not moved
far from this line age. Modern society, with its increased recognitio n of the rights
and needs of its people, and the responsibilities and duties of institutions
and those in in£uential positions, is built upon a history of legal and political
reform pushed, in part, by philanthropic zeal. Indeed, few aspects of English
social welfare legislation exist without an imprint of voluntary action. From
the great philanthropists of the Victorian era, to the more studied patrons and
reformers of the twentieth century, charities have been at the forefront of need
evaluation and its attempted resolution. In an age of laissez-faire, where charity
began in the home and extended to the church and the community, charitable
acts could be viewed as political substitutes, existing in a ¢eld where the state
had yet to tread.
n
NewcastleLaw School. An earlier version of this paper was presented at theAssociation for Research
on Nonpro¢t Organizationsa ndVoluntaryAction’s32nd International Conference, in Denver,USA.
I am gratefulto Ann Sinclair for her research assistance, to the British Academyfor funding my atten-
dance at the conference and to the participants for their comments. I am also grateful to AnthonyZito,
Politics, NewcastleUniversity and the Review’s anonymous referees for their comments on an earlier
draft.
1 W. Holdsworth, History of English Law vol 1 (London: Methuen & Co, 1922) 396¡ and G. Jones,
Historyof the Law of Charity 1532^1827 (Cambridge: Cambridge UniversityPress, 1969).
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71(2) 247^270
Examples of the far-reaching work of charities in an historical setting have
been extensively discussed elsewhere.
2
Chesterman, for example, charts the
onward march of charity from the time o f the Tudors up to th e end of the las t
century.
3
Additionally, social welfare research and individual oral histories have
revealed the great extent of community actions under the formalguise of charity
or informalphilanthropy.
4
No doubt the full depths of the i n£uence of charitable
actions, be they formal or informal, individual or collective, through clubs, asso-
ciations, trusts or societies, have yet to be plumbed. However, what is clear is that
bound up in religiou s notions of duty, virtue and ethics, coupled with broader
conceptsof paternalism, and classvocations, charity was both a shieldand a sword
for socialchange. Itprotected againstthe worst extremes of laissez-faire statehood,
and it forged new di rections in regulatory reform. The Victorians, in particular,
managed toachieve signi¢cant attitudinal and regulatoryimproveme nts in social
welfare.The notions of service and pressure, which so characterised the Victorian
era,
5
were harnessed to improve social conditions with successful inroads into
social legislation. From reformof slaverylaws
6
and improvement of work condi-
tions to early forms of child protection,
7
from contributions to Acts on artisans
dwellings,
8
contagious diseases,
9
cruelty to animals,
10
and Bills on Sunday trad-
ing,
11
friendly societies,
12
prisons
13
and the health of towns,
14
Victorian philan-
thropy stood as a bridge co nnecting earlier religious duty and later state
responsibility. The progress that the philanthropists were able to make came as
the result of a number of factors, chief amongst them a conducive social and
legal environment. Charities were not hide-bound to contrived rules regulating
their activities, state activity was underdeveloped, regulation of everyday life was
2 Among the many, s ee in particular,F. Gladstone, CharityLaw and SocialJustice (London: Bedford
Square Press, 1982); M. Chesterman, Charities,Trusts and Social Welfare (London: Weidenfeld &
Nicholson,1979); F. K. Prochaska,Women and Philanthropy in Nineteenth-centuryEngland (Oxford:
Clarendon Press,1980);W. K. Jordan, Philanthropyin Britain 1480^1660 (London: Allen & Unwin,
1959); J. J. Clarke, Social Administration, including the PoorLaws (London: Sir Isaac Pitman & Sons
Ltd,1935); G. Wootton, Pressure Groups in Britain 1720^1970 (London: Allen Lane,1975); A. Kidd,
State, Society and the Poorin Nineteenth CenturyEngland (London: MacMillan Press Ltd,1999) and H.
Cunningham and J. Innes (eds), Charity, Philanthropyand Reform(London: MacMillan Press Ltd,
199 8 ).
3ibid.
4 n 2 above; J.Lewis,TheVoluntarySector,TheState and SocialWorkin Britain (Aldershot: E Elgar,1995).
5 Gladstone, n 2 above, 42^43.
6 See HP Debvol XVI^XVIII 3rd Series March^April,April^May and May^July1833; H.Temper-
ley,‘Anti-slavery’in P. Hollis (ed), Pressure fromWithout inEarlyVictorianEngland (London: Edward
Arnold (Publishers) Ltd,1974).
7 See especially the work of Prochaska,n 2 above.
8 HP Deb vol CLXXXI 3rd Series February^March 1866; vol CCXXII 3rd Series February^
March1875;vol CCXXIV 3rd Series, May^June 1875.
9SeeRoyal Commission upon theAdministration and Operation of the Contagious Diseases Acts, vol 1
Report C 408 (1871); HP Deb vol CCXVI 3rd Series May^July 1873; vol CCXL 3rd Series
May^June1876;vol CCLXXVIII 3rd Series April^May1883;vol CCCIII 3rd Series March 1886;
vol CCCIV 3rd Series March^April1886.
10 HP Deb vol CCXXX, CCXXXI,CCXXXIV,CCXXIX 3rd Series 1876^1877.
11 HP Deb vol CLXXXVII 3rd Series May^June 1875.
12 HP Deb vol CCXXII, CCXXIV, CCXXV 3rd Series February, June, July1875.
13 HP Deb vol CCXXXIII 3rd Series March^April 1877.
14 HP Deb vol XCI 3rd Series March^April 1847.
Charities, Regulation and the Policy Process
248 r2008 The Author. Journal Compilation r2008 The Modern LawReview Limited.
(2008) 71(2) 247^270

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