Foreign experience and the basics of the comparative analysis of the constitutional staus of ngos.

This lecture is dedicated to the current problems of NGOs in Ukraine which can be solved by the implementation of the best practices of the foreign countries. At the beginning of the lecture the students will get the brief overview of using the comparative method in the constitutional researches. It will give them the basis for the critical comparative analysis of the relevant national and foreign experience.

The lecture gives an example how to make the basic comparative analysis of the constitutional status of NGOs in Ukraine and in the United Kingdom of Great Britain and Northern Ireland.

Learning outcomes:

By the end of the lecture students should be able to compare NGOs in Ukraine with NGOs in selected foreign countries (mostly old democracies) and to suggest changes aimed to improve the Ukrainian legislation.

Key terms of the topic:

Comparative approach	Comparative research
Comparative method	the United States of America
the United Kingdom of Great Britain and Northern Ireland	Finland
Czech Republic	Estonia

Studying the constitutional status of NGOs in the foreign countries, one should always keep in mind several things.

Firstly, the elements that together form the legal status (the rights and duties, the guarantees of the rights, the legal capacity and the principles of the state’s regulation of the legal status of the subject). This will help stay within certain limits while researching the topic.

Secondly, the fact, we are interested in, is the constitutional status of NGOs (for example, not the civil and not the tax one). This will narrow the field of the research even more.

At last, it is necessary to be familiar with the constitutional status of NGOs in Ukraine, and with the current issues in this field. It will allow to use the comparative method and to do the comparative research in the most quick and efficient way. Comparative approach supposes that the researcher finds out the similarities (in the case with this course – the similarities in the constitutional status of NGOs in Ukraine and in the certain foreign country) and the differences.

The differences in the constitutional status should be analyzed attentively – it might be possible that the reception of the certain approach, certain act or certain legal norms may help to solve one of the current problems of NGOs in Ukraine. The similarities also turn the attention – as the foreign legislation is not perfect. If the usage of a certain legal norm causes the disadvantages for NGOs in Ukraine and the same norm is found in the legislation of the other country – such a fact should turn one’s attention.

As an example, let us make a brief comparative research of the constitutional status of the NGO in the United Kingdom of Great Britain and Northern Ireland. The most difficult in the comparative research of NGOs in Ukraine and in the foreign country is to find the closest equivalent to NGOs to make such a research. As it was explored before, the Ukrainian legislation does not use the term NGO (non-governmental organization) – so researching NGO we keep in mind we are talking about the civic organizations (civic associations).

The legislation of the United Kingdom of Great Britain and Northern Ireland (the UK) also does not use the term NGO. In order to find the closest equivalent to NGOs it is vital to explore the third sector in the UK.

J. Kendall in his research «The Voluntary Sector: comparative perspectives in the UK» (2003) proposes to distinguish:

- the Broad Nonprofit Sector (BNS) includes all entities which are formal organisations having an institutionalised character; constitutionally independent of the state and self-governing; non-profit-distributing; and involve some degree of voluntarism;

- the Broad Voluntary Sector (BVS) includes all organisations in the BNS as identified above, other than political parties and religious congregations;

- the Narrow Voluntary Sector (NVS) includes all organisations in the BVS, less organisations not traditionally thought of as being part of the voluntary sector in the UK. This is primarily because they are seen as effectively being part of the state despite their constitutional status, and / or because they are thought not to be sufficiently altruistic or public-benefit-oriented. Excluded on this basis are all universities, schools, sports and social clubs, and trade union and business associations.

J. Kendall, continuing the research with M. Knapp, for the purposes of the UK: 1) agrees with the “structural operational definition” (see: Lecture 2); 2) lists its criteria (organisation has to be formal, independent of government and self-government, not-for-profit distributing and primarily non-business; voluntary); 3) adds that “two further criteria were adopted for the purposes of statistical mapping only. Party political organizations were excluded. And sacramental activities, taken to include places of worship and the central infrastructure and support bodies of the churches, were omitted”.

These authors add one more criterion, that they consider to be the “British” one – in order to be NGO, the organization should be “other-regarding”, “altruistic” or operate for “the public benefit” to be included as part of the voluntary sector – one interpretation of which is an important element in the legal definition of “charity”. The biggest part of NGOs in the UK is charities and the third sector is usually called “the charitable sector”.

The researchers often criticize the term «charitable sector» as the other name for the third sector. Thus, H.K. Anheier writes: «The term charity emphasizes the support these organizations receive from private charitable donations and assumes a certain motivation on behalf of both donor and recipient. But private charitable contributions do not constitute the only, or even the major source of their revenue; and many nonprofit organisations are not “charitable” but advocate special interests or seek to promote their member’s interests through lobbying». Nevertheless, he admits that «the centre of gravity of the U.K. non-profit sector is the so-called “charities”.

The Constitution of the UK is unwritten, so the freedom of associations is guaranteed by the Human Rights Act 1998. This Act was passed because of the harmonization of the UK and EU legislation, to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes. That is why Article 11 of the Schedule 1 of the Human Rights Act 1998 has the same text as the European Convention on Human Rights:

“1.Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State”.

The term «charity» is used in the UK legislation actively. According to the Charities Act 2006, "charity" means an institution which - (a) is established for charitable purposes only, and (b) falls to be subject to the control of the High Court in the exercise of its jurisdiction with respect to charities.

As this norm there is a reference rule, there it is significant to mention some other sections of the Charities Act 2006. Section 2 clarifies the meaning of charitable purpose: “a charitable purpose is a purpose which:

- falls within subsection (2);

- and is for the public benefit.

Subsection (2) consists of the non-exhausitive list of these purposes. This list includes: the advancement of citizenship or community development (includes rural or urban regeneration, and the promotion of civic responsibility, volunteering, the voluntary sector or the effectiveness or efficiency of charities); the prevention or relief of poverty; advancement of the arts, culture, heritage or science; the advancement of the arts, culture, heritage or science; the advancement of amateur sport; advancement of environmental protection or improvement; the relief of those in need by reason of youth, age, ill-health, disability, financial hardship or other disadvantage etc.

As for the public benefit, ss.3.2 explains that “it is not to be presumed that a purpose of a particular description is for the public benefit”. The special regulator (Charity Commission for England and Wales) must issue guidance in pursuance of its public benefit objective. Besides, the Commission may from time to time revise any issued guidance.

The Charities Act 2006 is the basic act for NGOs (charities) in the UK. Mostly this Act of the Parliament of the UK focuses on the constitutional status of NGOs in the UK.

The legal capacity (правосубъектность) of the charities – and so, the constitutional status of the charities, - is different. In Ukraine there is the small variation that depends on the type of the legalization the NGO have chosen (to be or not to be registered as a legal person). In the UK there are much more possibilities for the charities. The charity can be not registered as a legal person (unincorporated) and the charity can be not registered as a legal person (unincorporated), but to select the organizational form of trust (Chapter 9 of the Act), which gives a lot of rights to the charity and gives the possibilities to provide the wider range of the activities. The charity can be registered as a legal person in the organisational forms of the charitable company (Chapter 7 of the Act) or of the charitable incorporate organization (Chapter 8 of the Act). All of the choices create different rights and duties for the charities.

It is surely a positive experience – to have a wider choice of the organisational forms for NGOs in a country, than in Ukraine. Practically in Ukraine there are only 2 options – to be or not to be a legal person. In the UK, for example, there are 2 organizational forms for the charities registered as a legal person, and 2 options for the unincorporated charities.

The comparison of the rights of NGOs in Ukraine and in the UK (Chapters 7-9 of the Act) shows that in the UK the charities, as a whole, have wider list of the rights, especially when it comes about their property, commercial activity, fundraising and entrepreneurship.

The comparison of the duties of NGOs in Ukraine and in the UK (Chapters 7-9 of the Act) shows that in the UK the incorporated and unincorporated charities, as a whole, have a smaller list of the duties. The Parliament of the UK regulates the activity of NGOs much less, than the Parliament of Ukraine. So the Ukrainian legislation is full of the various restrictions for the NGOs, while the legislation of the UK makes an accent on the rights and opportunities of the NGOs.

The legislation of the UK also makes an accent on the guarantees of the rights of the NGOs. It differs with Ukraine in the following way:

- there is a special state regulator in the field of the charitable activity;

- there is the Charity Tribunal in the UK.

The Charitable Commission for England and Wales (the Commission) has such general functions as:

- determining whether institutions are or are not charities;

- encouraging and facilitating the better administration of charities;

- identifying and investigating apparent misconduct or mismanagement in the administration of charities and taking remedial or protective action in connection with misconduct or mismanagement therein;

- determining whether public collections certificates should be issued, and remain in force, in respect of public charitable collections;

- obtaining, evaluating and disseminating information in connection with the performance of any of the Commission's functions or meeting any of its objectives;

- giving information or advice, or making proposals, to any Minister of the Crown on matters relating to any of the Commission's functions or meeting any of its objectives.

The Commission is responsible for the register of charities.

The Commission’s general duties are—

1. So far as is reasonably practicable the Commission must, in performing its functions, act in a way—

(a) which is compatible with its objectives, and

(b) which it considers most appropriate for the purpose of meeting those objectives.

2. So far as is reasonably practicable the Commission must, in performing its functions, act in a way which is compatible with the encouragement of—

(a) all forms of charitable giving, and

(b) voluntary participation in charity work.

3. In performing its functions the Commission must have regard to the need to use its resources in the most efficient, effective and economic way.

4. In performing its functions the Commission must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be proportionate, accountable, consistent, transparent and targeted only at cases in which action is needed).

5. In performing its functions the Commission must, in appropriate cases, have regard to the desirability of facilitating innovation by or on behalf of charities.

6. In managing its affairs the Commission must have regard to such generally accepted principles of good corporate governance as it is reasonable to regard as applicable to it.

So, the Commission is mostly consultative body, with no rights of passing the bylaws. The Commission passes guidances (recommendations), which are not obligatory for the charities, and gives advices when they ask for. There is no such a body for NGOs in Ukraine, and it would be effective to have it.

One more body which might be useful for the developing of the Ukrainian NGOs is the Charity Tribunal. The legislation on charities is very specific, and they are one of the most ‘fragile’ and ‘vulnerable’ institutions of the society. The Charity Tribunal (the Tribunal) functions for the better protection of them. The Tribunal is quite a new body – it was created according to the Charities Act 2006 to act as the “court of first instance” for appeals and applications in respect of certain decisions of the Charity Commission. It also enables the Tribunal to consider matters referred to it by the Attorney General or, with the Attorney’s consent, by the Charity Commission, the reference being made before the Commission has made any decision on the matter.

The Tribunal has jurisdiction to hear and determine—

(a)such appeals and applications as may be made to the Tribunal in respect of decisions, orders or directions of the Commission, and

(b)such matters as may be referred to the Tribunal by the Commission or the Attorney General.

Summary. The legislation of the UK on NGOs (that are mostly charities) is up-to-date and adopts all of the international standards of the civil society building. The constitutional status of NGOs in the UK is much wider than the constitutional status of NGOs in Ukraine due to the two main reasons:

- the founders of charities in the UK have more choices of the organizational form;

- the Parliament of the UK sees the charities as the vulnerable institution of the society, that needs state help and support in order to function in an effective way. That is why the charities enjoy more guarantees of their rights than in Ukraine; there are fewer legal norms with the prohibitions for them. The additional guarantees are created due to the functioning of the Charity Commission and the Charity Tribunal. These two state bodies serves the charities only.

Mandatory reading:

Salamon Lester M. Government and the Voluntary Sector in an Era of Retrenchment: The American Experience. Source: Journal of Public Policy, Vol. 6, No. 1 (Jan. - Mar., 1986), pp. 1-19 (the text is included).

Recommended reading:

Law of Ukraine ‘On Civic Associations’ (1992). Available at: http://www.legislationline.org/documents/action/popup/id/7132

Charities Act 2006. Available at: http://www.legislation.gov.uk/ukpga/2006/50/contents

Charities Act 2006. Explanatory Notes. Available at: http://www.legislation.gov.uk/ukpga/2006/50/notes/contents

Garton J. The Legal Definition of Charity and the Regulation of Civil Society // King’s College Law Journal. – 2005. – Vol. 16. - Issue 1.

Kendall J. The Voluntary Sector: comparative perspectives in the UK. – London: Routlege, 2003.

Kendall J., Knapp M. The voluntary sector in the United Kingdom. - Manchester: Manchester University Press, 1996.

Perri 6. The Voluntary and Non-Profit Sectors in Continental Europe // An introduction to the voluntary sector / edited by Justin Davis Smith, Colin Rochester and Rodney Hedley. - London: Routledge, 1995.

Salamon L.M., Anheier H.K. Defining the non profit sector: a cross-national analysis. - New York: Manchester University Press, 1997.

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