Regulation Absent: The Chimera of Charitable Foundation Law in England and Wales

Abstract

Charitable foundations in England and Wales are not separately regulated, but fall within the general law of charities and are subject to the same legal obligations and responsibilities as all other charitable organisations. Whilst the ‘one size fits all’ approach taken by English and Welsh law allows for clarity and consistency, charitable foundations have argued that in practice it discourages philanthropy and results in greater operating burdens for foundations. Recent reform of charity law in England and Wales through the Charities Act 2006 provided an opportunity for an overhaul of the general regulatory regime with the potential to provide law tailored specifically for charitable foundations. Despite extensive lobbying and a recommendation for lighter regulation by a Joint Parliamentary Committee, that opportunity was not taken. The Charities Act 2006 strengthened but retained the all-encompassing nature and framework of English and Welsh charity law. This chapter sets out that regulatory framework and examines the specific regulatory issues for charitable foundations and the arguments raised for their separate treatment.