The ‘New’ Public Benefit Requirement: Making Sense of Charity Law?
Published in 2015 by Hart Publishing, an imprint of Bloomsbury Publishing (288 pages)
Mary Synge’s first book was also concerned with charity law and education: this time, independent schools. Largely prompted by opposition to the generous tax privileges which these schools enjoyed by virtue of their charitable status, the introduction of a statutory definition of ‘charity’ in the Charities Act 2006 was intended to achieve the policy goal of requiring independent schools to ‘do more’ to offer opportunities to those unable to afford the schools’ fees: primarily by providing means-tested bursaries, but also by making their facilities and teaching capability available to pupils at state schools. The consequence of not doing ‘enough’ was withdrawal of charitable status, which would – incidentally – also result in removal of tax privileges.
In The ‘New’ Public Benefit Requirement: Making Sense of Charity Law? the author demonstrates how this common understanding of the ‘public benefit requirement’ (forming part of the statutory definition) was mistaken, and how the Charity Commission’s implementation of the requirement was flawed, as a matter of both law and practice. As in The University-Charity: Challenging Perceptions in Higher Education, one sees the dangers in ‘charity law’ being misunderstood and misapplied.
The book carries a foreword by Hubert Picarda KC and has been widely acclaimed:
Hubert Picarda KC: … The interstices of the paraded reasoning of the Commission are set out with accuracy and acuity in this impressive book. The criticisms directed by the author at that reasoning are perceptive and soundly backed by authority. they merit in turn … anxious and careful reading, and, where in point and appropriate, adoption or at the very least consideration, by charity law textbook or article writers, by solicitors making submissions to the Charity Commission or by counsel advising clients or arguing thereafter before the Upper tribunal and higher.
Matthew Harding (2015) 78 Modern Law Review 883
[Synge’s] treatment of the precedents dealing with fee-charging charities must now stand as just about the most comprehensive and sophisticated in the academic literature.
… the clear implication of her analysis of the Commission’s activities is that the Commission improperly pursued a policy agenda set by the government of the day.
Where Synge has criticisms of charity law and regulation in the post-2006 setting – and she has plenty – they are because the Commission and the Tribunal have sought to develop and apply charity law in ways that are not mandated by parliament, or are unsupported by precedent, or are at odds with rule of law ideals more generally.
On one level, therefore, the book recounts a specific abuse of power in a rather unusual English context. At the same time, however, it serves as a cautionary tale for jurisdictions, such as Canada and the United States, which might consider drafting a comprehensive charities law or creating a central charities regulator.
… it would be a mistake to overlook this work … it contains one of the most comprehensive analyses of the concept of public benefit available
Mary Synge, however, highlights a far more complex — and far more controversial — problem …which is the extent to which the new regulators have taken it upon themselves to modify long-standing legal rules governing the definition of charity.
Matthew Harrington (2016) 35 Estates, Trusts & Pensions Journal 213
Juliet Chevalier-Watts (2015) 11 New Zealand Law Journal 422
… this book is a must-read for anyone with an interest in charity law generally, as well as those with a focus on key public benefit matters. The author does not shy away from bringing to the attention of the reader key issues, and matters of real concern within this sector, and the analysis is rigorous, with great attention to detail. It is highly recommended!
John Picton (2015-16) 18 The Charity Law & Practice Review 2
As a rule-of-law lawyer’s response to the current legal controversy relating to independent schools, scant criticism can be found. Synge takes a legal aim and hits her legal target …
Synge presents both a pertinent legal critique and a valuable resource for scholars and practitioners alike… a valuable contribution to the field which is likely to have a lasting scholarly impact.
George Reid (2016) 75 Cambridge Law Journal 164
Her criticism of the Charity Commission is more telling for its moderation and scholarship and for the devastating thoroughness with which it is presented.
“THE ‘NEW’ PUBLIC BENEFIT REQUIREMENT” is still in print and can be ordered direct from Bloomsbury