Implementation of the Charities Act 2009
24 July 2020
Charitable legacies form part and parcel of every will drafters wheelhouse of clauses. If drafting wills you will regularly require a stock of clauses needed to cater for leaving legacies and property to charity. The law of charities has undergone reform with the passing of the Charities Act 2009. Much of the law remains the same, in that, the existing charitable purposes that were part of our law for so many years remain intact.
What is truly reforming about the legislation is the regulation of charities and the establishment of the Charities Regulatory Authority. This aspect of the reform of law need not concern the will drafter unless you have been asked to establish a new charity. It would be generally rare for will drafters to start a charity from scratch, but you may be asked to draft will clauses for charitable bequests and at times these bequest may require the establishment of a charitable trust.
Regarless of the circumstances it is worthwhile to be familiar with the provisions of the Charities Act 2009, but at times it can be difficult to know what element of the 2009 has been commenced and when.
To assist practitioners, I have developed a colour-coded guide to the commencement of the Charities Act 2009 which is set out below. The 2009 Act has been commenced in five stages, as follows:-
- 1st September 2009. The first portion of the Charities Act to be implemented was not long after the Act was signed, and that was the provision relating to the prohibition of the sale of Mass cards (Charities Act 2009 (Commencement) Order 2009 (S.I. No. 284/2009));
- 26 June 2010. At this time, two sections, were commenced, namely the section that permitted the laying of Orders and Regulations before the House and also Section 90 relating to the power of the Court to grant relief from liability for breach of trust. (Charities Act 2009 (Commencement) Order 2010 (S.I. No. 315/2010));
- 16 October 2014. The real meat of the legislation was commenced at this time, with the establishment of the Charities Regulatory Authority and the regulation of charitable organisations generally. It was also on that date that the Charities Appeals Tribunal was established and the Commissioners of Charitable Donations and Bequests for Ireland was dissolved. (Charities Act 2009 (Commencement) Order 2014 (S.I. No. 457/2014). See also Charities Act 2009 (Establishment Day) Order 2014 (S.I. No. 456 of 2014));
- 15th August 2016. This commencement order commenced ss. 91 and 92, which related to indemnity insurance in respect of charity trustee and dissolution of a charitable organisation. (Charities Act 2009 (Commencement) (No. 2) Order, 2016 (S.I. No. 424/2016)).
- 5th September 2016. The statutory instrument, commenced the final tranche of the legislation namely, Part 4 which related to the protection of charitable organisations. (Charities Act 2009 (Commencement) Order, 2016 (S.I. No. 350/2016).)
The bulk of the legislation has been commenced. But there are some sections not commenced (as of the date of writing July 2020). These are
Section 89 – Permission to enter into certain agreements with charity trustees or connected persons;
Sections 93 – 98 which relate to non cash collections and other miscellaneus items.
I set out below a colour coded guide to the commencemet of the Charities Act 2009 which the reader might find useful.