The Charities Act 2022 and its Dissuasive Effects on Donors
| Published date | 01 July 2023 |
| Author | John Picton |
| Date | 01 July 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12811 |
bs_bs_banner
Modern Law Review
DOI:10.1111/1468-2230.12811
LEGISLATION
The Charities Act 2022 and its Dissuasive Eects
on Donors
John Picton∗
The Charities Act 2022 is the product of a report, Technical Issues in Charity Law,bytheLaw
Commission. It is argued that certain headline reforms in the legislation should not be under-
stood as merely technical. In order to give that claim an objective meaning, a frame for analysis
is adopted – it is seen that the reform package has a dissuasive eect on donors. That means,
all other things being equal, that donors are steered to reduce the size of their gifts, or in some
cases, to refrain from giving. There is a careful line to tread. There is no magic in encouraging
donation. It is not argued that the dissuasive reforms are necessarily undesirable or unjustiable
in themselves. Instead, the analysis is focused on a tight claim that unrecognised dissuasive,and
so substantive,changes have been made.
INTRODUCTION
The Law Commission produced its report Technical Issues in Charity Law in
2017.1Momentum for change had come from an earlier report in which Lord
Hodgson, an architect of past leg islation,2prominently called for the reform of
areas akin to barnacles that slow down a ship.3The end point of the process is
the Charities Act 2022, which amends the Charities Act 2011. It has received
Royal Assent, and the legislation is entering into force in stages, nishing in
Autumn 2023.4The Law Commission did not set out a denition of ‘technical
issues’, but its interpretation of the phrase, and so the nature of its remit, can
∗Senior Lecturer in Law, University of Liverpool. Thanks are due to the anonymous reviewers for
their helpful suggestions.Thanks also to the commentator s and contributors at the 2022 Notre Dame
Charity Law Workshop in London.
1Technical Issues in Charity Law Law Com No 375 (2017).See also, Technical Issues in Charity Law:
A Consultation Paper Law Com Consultation Paper No 220 (2015); Technical Issues in Charity
Law: Supplementary Consultation Law Com Consultation Paper (2016).
2 See Lord Hodgson of Astley Abbots, Trusted and Independent,Giving Char ity Back to Charities
(London: The Stationery Oce, July 2012).
3Trusts(Capital and Income) Bill [HL], Report of the Special Public Bill Committee HL Paper 42 (2012)
50.
4 See Department for Culture, Media and Sport and Department for Dig ital, Culture,Media &
Sport, ‘Charities Act 2022: implementation plan’ (13 April 2022) at www.gov.uk/guidance/
charities-act- 2022-implementation-plan (last visited 2 March 2023). At the time of writing, all
the amendments analysed are already in force,with the exception of the new Charities Act 2011,
s 280A.
© 2023 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(4) MLR 1011–1034
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium, provided the or iginal work is properly cited.
The Charities Act 2022
be deduced from the scope of its analysis in its consultation and nal reports.
There is a focus on creating rational alignments amongst the thicket of detailed
statutory rules which make up contemporary charity law, and there is also a
focus on areas where small changes might reduce administrative burdens either
on the Charity Commission or on trustees.5
The Law Commission is an independent body, established under the Law
Commissions Act 1965. Its statutory function is to systematically develop the
law, to codify the law,to eliminate anomalies, and to repeal obsolete and unnec-
essary enactments.6Being presentedto Parliament as non-controversial, the Law
Commission’srefor m package in the Charities Act 2022 was passed through the
legislature in an expedited procedure.7It must be thought an open question
whether any common law area can be reformed entirely without controversy,
but it is also a question outside the scope of this analysis. The goal is not to crit-
icise the statutory task of the Law Commission, or the expedited parliamentary
procedure. The Law Commission’s ‘technical remit’ – its focus on alignments
between rules, and on areas where small changes might reduce administrative
burdens – is instead used as a springboard for an assessment of the nature the
changes themselves.
From this springboard, it is seen that headline refor ms, impacting on donors,
are substantive rather than technical.So as to give an objective meaning to that
claim, a frame for the analysis is adopted.The reforms are shown to have dissua-
sive eects. This is a consumer frame,8which entails that, all other things being
equal, impacted donors will be inclined,after the refor m, to reduce the size of
their gifts, or sometimes give nothing at all.This frame is applied systematically
throughout the analysis, but it is also acknowledged that it has limits. There are
valid policy reasons which, although they did not in fact motivate the reform
process,might still be used to justify the dissuasive eects in the legislation. The
key critical point is not that the reform package is undesirable, or unjustiable.
Instead, the critical purpose of the analysis is to highlight that there have been
non-technical changes in the law of charitable donation.
The analysis takes three headline reforms in turn, and each is seen to have
a dissuasive eect. The rst reform analysed is a new power of constitu-
tional amendment aligning the procedures for the reform of both ordinary
5 See in par ticular Law Commission, Technical Issues in Charity Law: Impact Assessment IA No
LAWCOM0061.
6 Law Commissions Act 1965, s 3(1).
7 For the procedure, see HL Deb vol 721 7 October 2010.The second reading – an opportunity
for parliamentary scrutiny at which any member can speak – takes place in a special committee
in the Moses Room in the House of Lords rather than in the Chamber.There is no provision for
divisions (voting) in the special committee.Although the House must still pass a formal motion,
outside of unusual circumstances,this will also be without a vote. Then the bill goes to a Special
Public Bill Committee which takes evidence and makes amendments. Members who are not
appointed to the Special Public Bill Committee may attend,but they cannot vote.
8 The donor has to navigate the legal framework in line with her expected utility. See, fa-
mously,John Von Neumann and Oskar Morgenster n, Theory of Games and Economic Behaviour
(Princeton, NJ: Princeton University Press, 1944). For a use of expected utility analysis in the
context of donation, see, James Snowden, ‘Should We Give to More Than One Charity?’ in
Hilary Greaves and Theron Pummer (eds), Eective Altruism (Oxford: OUP, 2019) For a practi-
cal application in everyday life,see for example Stuart Sutherland, Irrationality:The Enemy Within
(London: Penguin,1994) 217.
1012 © 2023 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(4) MLR 1011–1034
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
