Use the foundation model if your original charity:
- is governed by a trust deed, will, scheme or conveyance
- is run solely by its trustees, and
- doesn’t have a voting membership
Complete the appropriate CIO constitution template as your new CIO’s governing document. Once the trustees agree the constitution, register your new CIO with the Charity Commission.
There are four common types of charity structure:
- Charitable Incorporated Organisation (CIO) – there are 2 structures: association CIO and foundation CIO
- charitable company (limited by guarantee)
- unincorporated association
- trust
EG. an unincorporated charity, has no legal personality, so it cannot
- is best to be CIO, if we want to have a wider membership
- enter into contracts or employ staff in its own name
- trustees are personally liable
- you want to register the title to your charity’s land or property in its own name (rather than in a trustee’s name or in the Official Custodian for Charities)
- you are concerned about the level of financial risk your charity faces and want to give the trustees more protection (although the trustees must still act responsibly)
- your charity will deliver charitable services under contract (for example with a local authority)
- Incorporated charities: Incorporated charities such as charitable companies, corporations or CIOs take or defend legal action in the name of the charity as a legal entity in its own right. If an action is brought by or against an incorporated charity, the incorporated charity will be named as a party to the action in its corporate name. In most situations, if the charity is incorporated, it is the charity itself, rather than the members or the trustees, which is responsible for the charity’s debts or for any other liabilities which might arise.However, if there has been any breach of duty or the decision to bring or defend the legal action has not been taken reasonably, the trustees may be personally liable for any costs arising from the proceedings.
- An unincorporated organisation (for instance a trust or unincorporated association) does not have an individual legal personality and legal action against the charity must be taken or defended in the name of the charity’s trustees. For example North London Mosque v Policy Exchange and another
Where a charity is involved in a legal action that falls within the definition of charity proceedings, then it must apply for the commission’s authority before proceeding
The fact that trustees have received legal advice that they have a strong case is not in itself enough to justify taking proceedings. Equally, proceedings should not be taken on the basis of personal sentiments and interests nor as a ‘matter of principle’. The decision to take proceedings is essentially a decision founded on a clear view of where the interests of the charity lie. 2.9 Charity trustees must be able to demonstrate how all decisions about taking legal action are in the charity’s best interests and further the purposes of the charity. “Trustees of a charity within the limits of their authority, whatever they might be, should be guided only by a desire to promote the lasting interest of the charity.”
legal requirements for CHARITIES involved in campaigning and political activity
- a charity may only engage in political campaigning/activity, only to deliver its charitable purposes, and it must not be the sole activity of the charity. Example: A charity set up for the welfare of refugees and asylum-seekers decides that changing the regulations will be for the benefit of many asylum-seekers, and supports the charity’s purposes. Therefore, it undertakes political activity aimed at persuading government to make the necessary changes, with a petition delivered to Downing Street, a lobby of Parliament and other linked activity.
- if carrying out political activity is the best way to support the charity’s purposes, a charity may focus most, or all, of its resources on political activity for a period. but politics [ in uk or abroad] cannot be the reason for the charity’s existence
- charities can campaign for a change in the law, or for the enforcement of an existing law, policy or decisions, only to support the charity’s purposes
- in the political arena, a charity must stress its independence and ensure that any involvement it has with political parties is balanced. A charity must not give support or funding to a political party, nor to a candidate or politician.
- a charity may give its support to specific policies advocated by political parties if it would help achieve its charitable purposes. However, trustees must not allow the charity to be used as a vehicle for the expression of the political views
- when campaigning, charity trustees must comply not only with charity law, but other civil and criminal laws, and the Code of the Advertising Standards Authority
- a charity can campaign using emotive or controversial material, but must be factually accurate
Political activity egs:
- raising public support for a change
- seeking to influence political parties or independent candidates, decision-makers, politicians or public servants
charities cannot give their support to a political party
Do things change when an election has been called?
Yes – once an election has been called, charities that are campaigning will need to take special care to ensure their political neutrality. For example, a charity must not provide funds, or other resources, to a political candidate.
A charity must never indicate to its supporters which candidate to support in an election
limitations to a charity campaign ?
- The Advertising Standard Authority: Campaigning charities should be aware of the work of both the Advertising Standards Authority (ASA), and also the Broadcast Committee of Advertising Practice (BCAP). The ASA is the independent, self-regulatory body for both broadcast and non-broadcast advertisements, sales promotions and direct marketing in the UK. The ASA administers the British Code of Advertising, Sales Promotion and Direct Marketing (The CAP Code) to ensure that advertisements are legal, decent, honest and truthful. Since 1993 this Code has applied to charities and pressure groups. As a matter of good practice, charities should take all reasonable steps to comply with the ASA Code. The BCAP administers the Radio Advertising Standards Code, and the TV Advertising Standards Code is jointly administered by the BCAP and the ASA.
- the Communications Act 2003, particularly for charities considering using broadcast advertising; the Act prohibits political advertising in the broadcast media – the definition of ‘political advertising’ includes advertising aimed at influencing public opinion on matters of ‘public controversy’
- the Serious Organised Crime and Police Act 2005, particularly for charities organising a demonstration about an issue; the Act places new restrictions on campaigning, including demonstrations
- other legal requirements, including the civil law concerning defamation (slander and libel) and the criminal law concerning incitement
What methods can a charity use to campaign?
A charity may use any reasonable method to campaign, so long as it is lawful
New technologies: new and innovative techniques for effective campaigning are developing all the time. For example, internet campaigns are now commonplace and the use of mobile phone text messaging facilities is an increasingly popular means of engaging the support of campaigners. In this fast-changing environment, charities should seek specialist advice if they are in any doubt about the legality, propriety or indeed cost-effectiveness, of their proposed campaign or activity.
Mobilising support: a charity can provide its supporters, or members of the public, with material to send to Members of Parliament, Welsh Assembly Members, councillors, central government, or the local authority, provided that, if requested, it can justify and demonstrate that a considered decision was made to engage in the activity and there is a rationale for using the chosen material.
Should a charity carry out research to back up a campaign?
there is no requirement to do so…as long as any claims made in support of a campaign are well founded.
Can a charity use its premises for campaigning?
yes. Hiring out premises: in order to raise funds, local charities of all types may permit non-charitable organisations to use their premises on commercial terms when the premises are not being used for the charity’s charitable purposes. This could include local political and campaigning groups, candidates for election, and local Members of Parliament or councillors who wish to hold surgeries with their constituents. Again, lettings of this kind do not constitute political activity by the charity
Can a charity work with other organisations on a campaign?
Yes: Lobbying coalitions: it is open to charities to form coalitions, alliances and consortia for the purpose of lobbying MPs and government for changes to the law.
Examples : A coalition of disability charities successfully lobbied for the introduction of new rights and protections for disabled people in the Disability Discrimination Acts 1995 and 2006.
Leakage of funds: a charity working with other organisations must guard against the possible ‘leakage’ of its charitable funds – meaning that the money it has contributed to a coalition or alliance must not be spent for purposes other than those of the charity.
Can a charity campaign or carry out political activity overseas?
Yes : where a charity is working internationally, and is seeking to promote any change in legislation or public policy, it must satisfy itself that such a change will contribute to its charitable purpose. As with changes to UK law, campaigning for a change to certain legislation cannot be a charitable purpose in its own right.
Example : An organisation set up to protect the environment launches a campaign to persuade the government of an overseas country to increase its restrictions on tree logging because of concern about the effects of deforestation. This is acceptable political activity for the charity as it supports its charitable purposes.
Example : An organisation is set up primarily to campaign against the use of the death penalty for adultery in certain countries. This organisation cannot be a UK charity, as no UK court can be competent to reach a decision on the public benefit it will provide. However, a charity working more generally in the field of human rights would be able , if such campaign is alongside wider activities aimed at improving the conditions in such countries.
Can a charity organise demonstrations?
Yes.. As part of a campaign, charities may wish to organise, promote or participate in some kind of demonstration or direct action. This might involve simply the provision of information in a public place, such as handing out leaflets
if a charity wishes to participate in an event and do more than just provide information. Such events might include participation in marches, rallies, or peaceful picketing. Such participation might offer significant opportunities for publicising a charity’s position on an issue. The Serious Organised Crime and Police Act 2005 will be relevant to charities carrying out such activity.
Can a charity organise a public petition?
Yes – a charity may organise a petition in support of its charitable campaign activity.
A charity may organise and present a petition to either House of Parliament, the Welsh Assembly or to any body of national or local government. The petition, or supporting material provided by the charity, should make it clear what the purpose of the petition is, so that those individuals considering supporting it know what they are signing up to. The Serious Organised Crime and Police Act 2005 will be relevant to charities carrying out such activity