1. ‘Voluntary and community sector’ is used throughout this paper as the descriptor currently used by the UK Government in its sector initiatives.

2. Meeting the Challenge of Change: Report of the Commission on the Future of the Voluntary Sector (London: NCVO, 1996), Head and Heart: The Report of the Commission on the Future of the Voluntary Sector in Scotland (Edinburgh: SCVO, 1997), Private Action, Public Benefit (London: Strategy Unit, 2002), Charities and Not-for-Profits: A Modern Legal Framework(London: Home Office, 2003).

3. R (Smeaton) v Secretary of State for Health[2002] EWHC 610 (Admin) and [2002] EWHC 886 (Admin), [2002] 2 FLR 146 per Munby J.

4. See Meeting the Challenge of Change, above n 2, para 1.3.23; European Commission Promoting the Role of Voluntary Organisations and Foundations in Europe Com(97), para 9.3.

5. Head and Heart, above n 2, paras 1.5.2 and 3.3.4.

6. Cm 4100.

7. European Commission Draft Recommendations to Member States Regarding a Code of Conduct for Non-Profit Organisations to Promote Transparency and Accountability Best Practices JLS/D2/DB/NSK D(2005)8208, 22 July 2005. A further report is expected.

8. Kendall, J and Knapp, M A loose and baggy monster: boundaries, definition and typologies’ in Smith, J Davis, Rochester, C and Hedley, R An Introduction to the Voluntary Sector (London: Routledge, 1996).Google Scholar

9. Kendall, J The Voluntary Sector (London: Routledge, 2003).CrossRefGoogle Scholar

10. ‘Minister for third sector recognises contribution of social enterprise’ Charity Times 18 May 2006.

11. Figures for the period 2003/2004: K Wilding et al The UK Voluntary Sector Almanac 2006 (London: NCVO Publications, 2006).

12. Salamon, L and Anheier, H Defining the Non-Profit Sector: A Cross-National Analysis (Manchester: Manchester University Press, 1997).Google Scholar See also M Knapp and J Kendall Defining the British Voluntary Sector, PSSRU Working Paper 681/2 (1991) and P 6 Defining the Voluntary and Non-Profit Sectors (London: NCVO, 1991).

13. Barry Knight’s Centris report argued more than a decade ago that independence was compromised by service provision: Voluntary Action (London: Home Office, 1993). The debate shows no sign of abating, particularly in the context of recent calls from government to increase the level of participation sector organisations have in service delivery. For a pro-service agenda, see the report from the Association of Chief Executives of Voluntary Organisations, Communities in Control: The New Third Sector Agenda for Public Service Reform (London: ACEVO, 2005). For its part the National Council for Voluntary Organisations (NCVO) has sought to champion the distinctiveness of the sector and the unique role it can play, whilst also emphasising the sector’s independence: ‘Voluntary sector chief defends UK charities “political activities”’, NCVO press release, 12 November 2003.

14. Kendall, above n 9.

15. In Place of Fear (London: Heinemann, 1952) p 79, cited in F Prochaska Schools of Citizenship: Charity and Civic Virtue (London: The Institute for the Study of Civil Society, 2002) p 31.

16. Comprising Active Community, Charity and Civil Renewal Units.

17. Next Steps on Volunteering and Giving in the UK: A Discussion Document (London: HM Treasury and Home Office, 2002), Promotion of Volunteering Bill 2003/04.

18. See generally The Role of the Voluntary and Community Sector in Service Delivery: A Cross Cutting Review (London: HM Treasury, 2002).

19. Private Action, above n 2.

20. The Charities Bill (HL) had its third reading in the House of Lords in November 2005 and its second reading in the House of Commons in July 2006. It is expected to be enacted by November 2006.

21. Private Action, above n 2, para 32. See Dunn, A and Riley, C ‘Supporting the not-for-profit sector: the government’s review of charitable and social enterprise’ (2004) 67 MLR 632.CrossRefGoogle Scholar

22. European Commission, above n 4.

23. J Jacobs and A Zito A Cross-Regional Comparison of Civil Society in the Environmental Policy-Making of the Mercosur and the European Union UACES 33rd Annual Conference (Newcastle, 2003).

24. See Art 230 EC. Cygan, A Protecting the interests of civil society in community decision-making – the limits of Article 230 Ec’ (2003) 52(4) International and Comparative Law Quarterly 995.CrossRefGoogle Scholar

25. The code is expressed to be for non-profit organisations which are defined as organisations that ‘engage in the raising and/or disbursing funds for charitable, religious, cultural educational, social or fraternal purposes, or for the carrying out of other types of good works’; above n 7, p 1.

26. Para A.2.

27. See the first sector-wide governance code of practice promulgated by NCVO and ACEVO Good Governance: A Code for the Voluntary and Community Sector (London: NCVO, 2005).

28. See Dawson, I and Dunn, A Governance codes of practice in the not-for-profit sector’ (2006) 14(1) Corporate Governance 33.CrossRefGoogle Scholar

29. Para A.1.

30. Para A.1. Investigation undertaken should not be disproportionate to the risk identified.

31. Para A.2.

32. Para A.3.

33. Para A.1.

34. Para B.

35. Covering organisational name, address, branch details, membership and committee details, purposes, organisational structure, decision-making structure, banking information, financial control systems and information on the provenance of funds: para B.

36. Para B.

37. European Commission, above n 7, Annex.

38. In particular, the use of money transfers for those organisations operating in developing countries.

39. Ranging from the informal trust and unincorporated association to more formal corporate structures.

40. Germany and Spain are examples. Notable exceptions are France and the Netherlands, where registration controls are not comprehensive across the sector. In Italy registration is required for organisations that wish to have legal personality.

41. For discussion of the effect of the differences, see Salamon, L The International Guide to Nonprofit Law (New York: John Wiley, 1997) p 17.Google Scholar

42. The Commission’s recommendations refer to non-profit organisations, but without clear definition. See further Salamon, ibid.

43. Para C.

44. See Black, J Rules and Regulators (Oxford: Clarendon Press, 1997)CrossRefGoogle Scholar; Dawson and Dunn, above n 28, and discussion therein.

45. Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531.

46. To a list of 13, cl 2(2). This Bill is expected to be passed by November 2006.

47. Bowman v Secular Society Ltd [1917] AC 406 at 442 per Lord Parker. Although strictly obiter, Lord Parker’s view was subsequently endorsed.

48. [1948] AC 31.

49. [1982] Ch 321.

50. Ibid, at 340.

51. Cf Tzu-Tsai Cheng v Governor of Pentonville Prison[1973] AC 931 at 945 and R v Radio Authority, ex p Bull[1995] 4 All ER 481 at 500. Discussed below, text to n 97.

52. Above n 47.

53. For an example of the requirement not to usurp the functions of the legislature, see the decision of the Charity Commissioners in the application for charitable status of the Internet Content Rating Association: Decision of the Charity Commissioners (10 December 2002), available at http://www.charity-commission.gov.uk/Library/registration/pdfs/icradecision.pdf.

54. White Paper Charities a Framework for the Future Cm 684, 1989, para 2.38, ch 2.

55. Burt, Eg E Charities and political activity: time to rethink the rules’ (1998) 69 Political Quarterly 23;Google Scholar

56. Above n 2.

57. Private Action, ibid, paras 3.14 and 4.52; Charities and Not-for-Profits, ibid, para 3.35; Dunn and Riley, above n 21, at 645.

58. Charity Commission Political Activities and Campaigning by Charities, Leaflet CC9 (London: Charity Commission, 2004)Google Scholar paras 14 and 23.

59. ‘Guide dogs charity seeks restrictions on sale of fireworks’ ThirdSector Magazine 24 September 2003.

60. Cf Re Koeppler’s Will Trusts[1986] Ch 423 (the fostering of debate and a neutral presentation of a range of views) and Southwood v Attorney-General(2000) The Times, July 18 (partisan favouring of one view).

61. Charity Commission Leaflet CC9 (London: Charity Commission, 1995)Google Scholar para 8; White Paper, above n 54, para 2.38. The current law was described as ‘notoriously unclear’ in Private Action, above n 2, para 4.50.

62. Private Action, ibid, para 4.56.

63. Charity Commission, above n 58, para 15.

64. Ibid, paras 16, 23, 28 and 29.

65. Cf the US jurisdiction.

66. See s 32 (charity proceedings for injunctions) and s 18 (power to ‘freeze’ accounts) of the Charities Act 1993. If the political activity calls into question the true nature of the organisation’s purpose, ie that it actually has a political rather than a charitable end, the organisation’s status as a charity may be examined; see qualified comments of Scott J in Attorney-General v Ross [1985] 3 All ER 334.

67. See Charity Commission Policy on Charities and their Alleged Links to Terrorism (2004), available at http://www.charity-commission.gov.uk/tcc/terrorism.asp; Charities and Terrorism OG96-28 (2003), available at http://www.charity-commission.gov.uk/supportingcharities/ogs/g096.asp; Charities Working Internationally, available at http://www.charity-commission.gov.uk/supportingcharities/cwi.asp and inquiries into the Mariam Appeal, Palestinians Relief and Development Fund and Mercy Universal, available at http://www.charity-commission.gov.uk/investigations/inquiryreports.

68. Some regulations may well be aimed at sector organisations but crucially are not limited to them: eg the provisions relating to harassment intended to deter lawful activities and demonstrating without authority in a designated area under ss 125 and 132–138 of the Serious Organised Crime and Police Act 2005. These provisions have been used in the context of protests by animal rights groups.

69. Discussed above, text to n 16.

70. See IRC v National Federation of Self-Employed and Small Businesses Ltd [1981] 2 WLR 722 on ‘sufficient interest’.

71. Smeaton, above n 3, para [417] per Munby J.

72. Ibid, para [418]. See also comments of Sedley LJ in R (The Refugee Legal Centre) v Secretary of State for the Home Department[2004] EWCA Civ 1481 (unreported) at [5].

73. Smeaton, above n 3, para [419] per Munby J.

74. Supreme Court Act 1981, s 51.

75. PCOs will only be awarded in limited circumstances but, where granted, they are flexible to fit the circumstances, ranging from a cap on cost liability if an action fails, to a prescription on all costs irrespective of the outcome: R (Corner House Research) v Secretary of State for Trade and Industry Corner House [2005] EWCA Civ 192, [2005] 1 WLR 2600 at [75] per Lord Phillips of Worth Matravers MR.

76. [1999] 1 WLR 347.

77. Above n 75.

78. Ibid, para [74]. A court no longer has to apply the cumbersome Child Poverty Action Group requirement that it should have an appreciation of the claim’s merits before making the order. Corner House sets a lower threshold: the test will be satisfied if the court believes that the case has potential for success and is in the public interest.

79. Above n 3.

80. Ibid, para [424].

81. Ibid, para [421].

82. [2004] EWCA Civ 1239 (unreported).

83. Article 10 has applied to circumstances where legal aid is not available to assist claimants to defend an action; see Steele and Morris v UK(2005) 41 EHRR 22.

84. (1998) 26 EHRR 1. For a fuller discussion see Dunn, A Political activity and the independence of the voluntary sector’ in Dunn, A (ed) The Voluntary Sector, The State and the Law (Oxford: Hart Publishing, 2000).Google Scholar

85. Political activities, publicity or funding of candidates during an election period are covered by Representation of the People Acts 1983, 1985, 2000, the Local Government Act 1986 and the Political Parties, Elections and Referendums Act 2000.

86. Eg NCVO Independence, Diversity, Voice – A Manifesto for Voluntary Action 2005, providing a number of principles that all political parties should endorse, available at http://www.ncvo-vol.org.uk/asp/search/ncvo/main.aspx?siteID=1&sID=18&documented=858.

87. Above n 84, para 42.

88. Section 321.

89. See the website available at http://www.ofcom.org.uk/tv/ifi/codes/bcode/. Ofcom’s broadcasting code was drawn up following provisions under s 319 of the Communications Act 2003 and s 107 of the amended Broadcasting Act 1996. The code brings together codes previously published by the Radio Authority, the Broadcasting Standards Commission and the Independent Television Commission.

90. Eg Advertising Standards Authority Report Number 53 (London: ASA, 1995).Google Scholar

91. Communications Act 2003, s 321(3)(a)–(g) provides a non-exhaustive list of possible political objectives. See further TV Advertising Code, s 4 and Radio Advertising Standards Code, s 2, r 15.

92. Where they form an ‘association of persons’: Communications Act 2003, s 405.

93. Ofcom Broadcast Bulletin 43 12 September 2005.

94. Ibid, p 6.

95. (2002) 34 EHRR 159.

96. [2003] UKHL 23, [2004] 1 AC 185.

97. Above n 51.

98. Above n 95, para 71; Handyside v UK (1979–80) 1 EHRR 737; Hertel v Switzerland judgment of 25 August 1998, Reports 1998-V.

99. Cf United Christian Broadcasters Ltd v UK Application No 44802/98 (unreported) 7 November 2000 and Murphy v Ireland Application No 44179/98 (unreported) 10 July 2003 involving religious expression.

100. See Lingens v Austria judgment of 8 July 1986, Series A, No 103, s 42; Castells v Spain judgment of 23 April 1992, Series A, No 236, s 43; Thorgeir Thorgeirson v Iceland judgment of 25 June 1992, Series A, No 239, s 63.

101. See text to n 84.

102. No complaint was raised about the disturbing nature of the actual advertisement, so that could not form a ground for proportionality.

103. ‘Animal rights group to challenge political ad ban’ ThirdSector Magazine 1 March 2006.

104. Where the importance of being allowed to disseminate information and partake in debate was emphasised: above n 83.

105. Above n 96.

106. See Broadcasting Act 1990, s 6(1)(a), BBC guidelines, para 5(1)(d).

107. For criticism, see A Geddis ‘What future for political advertising on the United Kingdom’s television screens?’ [2002] Public Law 615.

108. Lord Scott of Foscote dissenting.

109. Above n 96, para [59].

110. Ibid, paras [68] and [16]. Whilst PEBs offer the voluntary and community sector a specific platform for their views, it is unlikely that many will take the step to field election candidates to merit such airtime, despite fears to the contrary: Electoral Commission Party Political Broadcasting: Report and Recommendations 2003, cited by Lord Hoffmann, para [69].

111. This was a key theme of Private Action, above n 2, in relation to reforming charity law.

112. On Introducing Amendments to Certain Legislative Acts of the Russian Federation, officially published on 17 January 2006, translated by International Center for Not-for-Profit Law.

113. Federal Law ♯82-FZ on Public Associations, Art 19 (amended).

114. Ibid, Art 29 (amended).

115. Ibid, Art 38 (amended).

116. Ibid.

117. Ibid, Art 19 (amended).

118. Federal Law ♯7-FZ on Nonprofit Organizations, Art 1(5) (amended).

119. Ibid, Art 132, para 7.

120. Ibid, Art 32, s 4 (amended).

121. Ibid.

122. As such they are open to abuse, as noted by the Council of Europe in its initial advice to Russia on a draft of the current law: J Tymen van der Ploeg in cooperation with the Secretariat General of the Council of Europe Provisional Opinion on Amendments to Federal Laws of the Russian Federation Regarding Non-Profit Organisations and Public Associations 1 December 2005, para 21.

123. The International Center for Not-for-Profit Law Analysis of Law ♯18-FZ on Introducing, Amendments to Certain Legislative Acts of the Russian Federation 17 February 2006 (Washington DC), p 8.

124. Sidiropoulos v Greece Application No 57/1997/841/1047 (unreported) 10 July 1998.

125. It is notoriously difficult to find a universally agreed categorisation for organisations variously labelled ‘third sector’, the ‘social economy’, ‘voluntary and community organisations’, ‘civil society’, or for the bodies that fall within these classifications. Attempts to classify the sector, by form or by function, have also been unsuccessful: for a good summary see Courtney, R Strategic Management for Voluntary Nonprofit Organisations (London: Routledge, 2002)Google Scholar, ch 4.

126. As in other jurisdictions, see Salamon, above n 41.

127. NCVO has recently called upon the government to make reduction of regulation a priority and to implement the recommendations of the Better Regulation Task Force 2005 report Better Regulation for Civil Society.

128. See NCVO response, available at http://www.ncvo-vol.org.uk/policy/index.asp?id=1184.

129. European Commission, above n 7, para C.1.

130. Charities Act 1993, s 1.

131. For discussion, see Charity Commission Regulating for the Future: Listening to External Views – Challenging Assumptions (2005), available at http://www.charity-commission.gov.uk/spr/dhasurv.asp.

132. McGregor-Lowndes, M ‘Nonprofit corporations – reflections on Australia’s largest nonprofit insolvency’ (1995) 5 Australian Journal of Corporate Law 115.Google Scholar McGregor-Lowndes provides a good synopsis of the shortcomings of regulators for sector organisations, focusing upon perceptions and assumptions from within and without the sector.

133. Broadcasting is one area where such concessions could be awarded. Although there are clear advantages in restricting partisan audio-visual broadcasts, a common premise across the forums of activity has been the importance of initiating debate and the democratic role that sector organisations can play in this regard. With limits for taste and decency and party political broadcasts, allowing organisations concessions in audio-visual broadcasting would provide scope to bring that debate to a wider audience, allowing that audience to access further information to understand the context of the campaign.

134. Section 321(3).

135. Above n 82.

136. Consider the divergence between pro-choice/pro-life organisations, pro-hunting or pro-animal testing/animal rights groups.