OTHER CHAPTERS
I. SETTING UP AN ORGANISATION
Ch.1: Trusts & unincorporated associations
Ch.2: Companies & other incorporated structures
Ch.3: Charitable status, charity law & regulation
Ch.4: The objects clause
Ch.5: The governing document
Ch.6: Setting up an organisation
Ch.7: Registering as a charity
Ch.8: The organisation's name
Ch.9: Branches, subsidiaries, partnerships & mergers
II. GOVERNANCE & MEMBERSHIP
Ch.10: Members of the organisation
Ch.11: Members of the governing body
Ch.12: Officers, committees & sub-committees
Ch.13: Duties & powers of the governing body
Ch.14: Restrictions on expenses, remuneration & benefits
III. RUNNING AN ORGANISATION
Ch.15: The registered office and other premises
Ch.16: Paperwork requirements
Ch.17: Meetings & decision making
Ch.18: Legal agreements
Ch.19: Organisational & personal liability
Ch.20: Insurance
Ch.21: Financial difficulties & winding up
IV. EMPLOYEES, WORKERS, VOLUNTEERS & OTHER STAFF
Ch.22: Employees and other workers
Ch.23: Rights, duties & the contract of employment
Ch.24: Model contract of employment
Ch.25: Equal opportunities in employment
Ch.26: Taking on new employees
Ch.27: Pay & pensions
Ch.28: Working time & leave
Ch.29: Disciplinary matters, grievances & whistleblowing
Ch.30: Termination of employment
Ch.31: Redundancy
Ch.32: Employer-employee relations
Ch.33: Employment claims & settlement
Ch.34: Self-employed workers & other contractors
Ch.35: Volunteers
V. SERVICES & ACTIVITIES
Ch.36: Health & safety
Ch.37: Equal opportunities in provision of goods & services
Ch.38: Confidentiality, privacy, data protection & freedom of information
Ch.39: Intellectual property
Ch.40: Publications & publicity
Ch.41: Campaigning & political activities
Ch.42: Public gatherings & entertainment
Ch.43: Food & drink
VI. FUNDING & FUNDRAISING
Ch.44: Funding & fundraising: General rules
Ch.45: Fundraising activities
Ch.46: Tax-effective giving
Ch.47: Trading companies
Ch.48: Contracts & service agreements
VII. FINANCE
Ch.49: Financial procedures & records
Ch.50: Annual accounts, reports & returns
Ch.51: Auditors
Ch.52: Corporation tax, income tax & capital gains tax
Ch.53: Value added tax
Ch.54: Investment & reserves
Ch.55: Borrowing
VIII. PROPERTY
Ch.56: Land ownership & tenure
Ch.57: Acquiring & disposing of property
Ch.58: Business leases
Ch.59: Property management & the environment
IX. BACKGROUND TO THE LAW
Ch.61: Dispute resolution & litigation
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UPDATED INFORMATION FOR CHAPTER 60:
VOLUNTARY SECTOR LEGAL HANDBOOK
This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.
These websites for each chapter update
the 2nd edition of The Voluntary Sector Legal Handbook by Sandy Adirondack and James Sinclair Taylor (Directory of Social Change, 2001). The websites are not intended as a comprehensive update and should not be treated as such.
To order a copy of The Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking
. It costs £50 for voluntary organisations or £80 for others, plus 10% p&p. We expect the third edition to be published in 2007.
The information here covers the law applicable to England and Wales. It may not apply in Northern Ireland and/or Scotland. These news items are not a full or definitive statement of the law and are not intended as a substitute for professional legal advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be taken by the author.
Chapter 60
HOW THE LAW WORKS
PUBLICATIONS ABOUT HUMAN RIGHTS
Added 21/9/03. This information updates s.60.3 in The Voluntary Sector Legal Handbook 2nd edition.
For anyone wanting to know how the Human Rights Act 1998 affects their organisation (or themselves as individuals), there is a wide range of material at www.humanrights.gov.uk.
Specifically for the voluntary sector, the Legal Action Group has published Human Rights Act Toolkit. It is a practical guide that is aimed at non-legal voluntary sector staff and explains the impact of the Act on public bodies and charities. It costs £22 from LAG--details at www.lag.org.uk/Templates/System/Publications.asp?NodeID=89151&Mode=display.
HUMAN RIGHTS ADVICE FOR VOLUNTARY ORGANISATIONS
Added 6/8/06. This information updates s.60.3 in The Voluntary Sector Legal Handbook 2nd edition.
Voluntary Sector Advice, a free service run by Liberty, provides charities, campaigns and voluntary organisations with information about how human rights law can benefit organisations and the people they work with. Information is available at www.yourrights.org.uk/vas or on 0845 122 8521.
VOLUNTARY ORGANISATIONS AS PUBLIC BODIES
Updated 15/10/04. This information updates s.60.3.3.3 in The Voluntary Sector Legal Handbook 2nd edition.
The Human Rights Act 1998 incorporates into UK law the provisions of the European Convention on Human Rights (the Convention), and enables these rights to be enforced through UK courts rather than only through the European Court of Human Rights in Strasbourg.
Convention rights include:
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right to respect for private and family life, home and correspondence (article 8);
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right to freedom of thought, conscience and religion (article 9);
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right to freedom of expression (article 10);
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right not to be discriminated against in the exercise of another Convention right (article 14).
Although Convention rights are far-reaching, national governments can in many cases make laws limiting or restricting the rights. See, for example, the UK's rules on employer monitoring of email correspondence. Some of the rights, called qualified rights, can be breached provided there is a legitimate reason for doing so (as defined in the Act).
Rights under the European Convention on Human Rights and the Human Rights Act 1998 apply only to acts carried out by public authorities, or by private bodies (including charities and other voluntary organisations) carrying out a public function. Public authority and public function are not defined in the Act, so depend on case law for clarification.
"Pure" public authorities include central government, local authorities, and other bodies set up by statute. Public function is much less clear. Where a voluntary organisation is carrying out statutory duties (such as NSPCC carrying out its statutory child protection duties) it is almost certainly a public function. Where a voluntary organisation is providing a statutory service (e.g. running a contracted-out social services residential home or daycare centre, providing housing for homeless people who have been referred by the local authority, or carrying out NHS care assessments) it might appear that it is fulfilling a public function. However case law decisions have been inconsistent. For example in a case in 2002 involving the Leonard Cheshire Foundation, the court and later the Court of Appeal said that Cheshire was not carrying out a public function even in relation to services directly purchased by a public body (social services or health authority). It thus appeared that organisations funded through public sector grants, service agreements or contracts, are not carrying out a public function for the purposes of the Human Rights Act. This would mean that a case under the HRA would not be able to be brought against them. But in another case in 2002 a registered care home, Partnerships in Care Limited, was held to be a public body. The reasoning was that the care home had obligations to provide adequate facilities imposed directly on it by the Nursing Homes and Mental Nursing Homes Regulations 1984, and was thus regulated by statute.
The status of voluntary organisations as public bodies thus remains unclear, and in March 2004 the parliamentary Joint Committee on Human Rights published a report, The meaning of public authority under the Human Rights Act, calling for greater clarity. It concluded that a restrictive judicial interpretation of the rules on public authority, combined with the changing nature of private and voluntary sector involvement in public services, was compromising application of the Human Rights Act. The report said that in general, a function is public if government has taken responsibility for it in the public interest. It is justifiable to expect private (commercial or voluntary) sector bodies to comply with the responsibilities of public authorities when those bodies are exercising power and control over individuals' Convention rights. The report is at www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/39/3902.htm.
In any case, local authorities and other public authorities are increasingly putting into contracts, service agreements and grant aid conditions an obligation on the recipient organisation to comply with the Human Rights Act. The report urged relevant government departments, in particular the Department for Constitutional Affairs and the Office of the Deputy Prime Minister, to issue guidance on the protection of human rights through contract, and to draft standard contractual terms.
Voluntary organisations should generally seek legal advice before agreeing to contractual conditions requiring compliance with the public authority's human rights obligations, especially where the funder/purchaser could require the recipient organisation to vary the service it provides in order to comply with these obligations.
Further information about the Human Rights Act is available from the Lord Chancellor's Department at
www.dca.gov.uk/hract/hramenu.htm
and on Liberty's "Your Rights Online" website at
www.yourrights.org.uk.
The Act itself is at
www.opsi.gov.uk/acts/acts1998/19980042.htm.
If you think your organisation is or may be carrying out public functions, it is essential to ensure those functions comply with Convention rights. Even if the organisation is not carrying out public functions, it should ensure all activities comply with Convention rights--because the courts must now interpret all laws consistently with Convention rights.
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