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Policy Change, Public Benefit, and the Charities Act 2006

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Policy Change, Public Benefit, and the Charities Act 2006 Policy Change, Public Benefit, and the Charities Act 2006 – A Case of the Emperor’s New Clothes? By Sarah Sophie Flemig A thesis submitted in conformity with the requirements for the degree of PhD in Political Science Department of Political Science University of Toronto © Copyright by Sarah Sophie Flemig 2015 Policy Change, Public Benefit, and the Charities Act 2006 – A Case of the Emperor’s New Clothes? Sarah Sophie Flemig Doctor of Philosophy in Political Science Department of Political Science University of Toronto 2015 Abstract This thesis analyses the policy-making processes leading to the Charities Act 2006 that introduced a renewed focus on the “public benefit” that charities need to provide. It addresses the empirical puzzle why a period of over 400 years of stability in the definition of charitable status ended in 2006 and what factors caused the charity reform that culminated in the 2006 Act. The discussion centres on the two most affected groups of charities, which are fee-charging education and healthcare charities. For this purpose, the thesis compares two radical change theories, i.e. punctuated equilibrium theory (Baumgartner et al., 2011) and path dependency (Pierson, 2000a), and evaluates how they perform against the alternative account of gradual transformation theory (Streeck and Thelen, 2005). Empirical evidence is presented for each of the key stakeholders, the government, the charitable sector, the legal community, and the media. Throughout, the thesis adopts an interdisciplinary multi-method research outlook, including a specifically designed survey, systematic review, statistical analysis, content analysis and archival research. These data are corroborated through in-depth elite interviews with key ii personalities who were involved in the charity policy reform process. The “crucial case study” (Eckstein, 2009) is then juxtaposed to the parallel Scottish charity policy reform, leading to the Charities and Trustee Investment (Scotland) Act 2005, to corroborate the findings. In the light of the evidence, the thesis concludes that policy change theories need to differentiate between the concept of legal and political change in order to provide meaningful explanations. Moreover, it finds that welfare state traditions play a key role in charity policy change and that the English Charities Act 2006 is a further instance of the increased judicialisation of politics and the politicisation of judicial bodies. On a theoretical level, the thesis introduces a classification of change at different stages of the policy process. (300 words) iii Acknowledgements Many individuals have been instrumental for the research and writing of this doctoral thesis. First and foremost, I would like to express my sincere gratitude to my supervisor Professor Neil Nevitte, who has been a most wonderful guide along this adventurous journey and who never failed to show patience and support on all levels whenever I needed it most. My committee members, Professor Carolyn Tuohy and Professor Charles Mitchell, were a constant source of inspiration, astute insights, and kind encouragement, and their contributions to the development of this research project have been invaluable. I would also like to thank my internal examiner, Professor Rodney Haddow, who provided an important and insightful alternative view that sharpened my argument. As one of the policy experts involved in the charity law reform, Professor Albert Weale was the perfect external examiner, and added to the overall clarity of the thesis through his thoughtful comments. To all of my examining committee members, I couldn’t be more grateful. Of course, the same applies to those who took part in the empirical research, in particular those who kindly agreed to be interviewed or who participated in the survey. Their eagerness to support this project and their willingness to share their first-hand insights was a sine qua non factor in its completion . Finally, I would like to thank those who provided the equally important moral support and friendship along the way, who listened when I felt stuck, and who never failed to encourage me to take the next step even when I didn’t quite know where it would lead: Masatake Wasa, Lonelle Selbo-Dyett, Raphael Thalakottur, Benoît Guerin, Israela Stein and Eitan Hess, Justin Thompson, Michael and Lundi Youash with Micaela, Marian, Gabriel, Lucian and Clarisse, Melissa Djurakov, Alison Hari-Singh and Jeff Nowers, Christopher La Roche, and last but certainly not least, Maribel Brun and Vicent Lopez. There are too many to be included at this point, which I sincerely regret, but which also makes me feel very blessed in life. In particular, I would like to thank Aruna Nair, without whose friendship, legal advice, and endless patience I would have been lost; Chelsea Nichols for making me see the big picture when all I could see was a 13 inch- iv wide screen; Petra and Stella Zauner for listening at all times and helping me navigate the highs and the lows; Max Fries for never failing to cheer me up, no matter in what time zone; Scott Montgomery for all the inspiring conversations and broadening my horizon in directions I had never considered; my two great loves, Lewis and John Armstrong, for their warmth, both literally and figuratively, and for inspiring me to keep going even during the hardest final stage; and finally my wonderful family, Carmen, Reinhard, Konstantin, and Mark Flemig, who silently suffered through dinner conversations on the role of charities in England, Wales, and Scotland yet are still proud of me and love me more for it. v Table of Contents Chapter 1. Introduction .......................................................................................................................................... 1 1.1 PUBLIC BENEFIT AND THE CHARITIES ACT 2006 – A CASE OF THE EMPEROR ’S NEW CLOTHES ? .... 1 1.1.1 The “So What?” Question ......................................................................................................................... 2 1.1.2 Why Public Benefit? ................................................................................................................................... 4 1.1.3 Why Schools and Hospitals? ................................................................................................................... 6 1.2 NEED FOR A POLITICAL SCIENCE ANALYSIS ................................................................................................. 8 1.3 OUTLINE OF THE THESIS ............................................................................................................................... 10 Chapter 2. Methodology and Theory ............................................................................................................. 12 2.1 INTRODUCTION ............................................................................................................................................... 12 2.2 THEORIES OF POLICY CHANGE PROCESSES : BEYOND PUNCTUATED EQUILIBRIUM AND PATH DEPENDENCY FRAMEWORKS ? ............................................................................................................................ 14 2.2.1 Punctuated Equilibrium Framework ............................................................................................... 16 2.2.2 Path Dependency Framework ............................................................................................................. 21 2.2.3 Theoretical Caveats: Gradual Transformation Frameworks ............................................... 24 2.3 METHODOLOGY .............................................................................................................................................. 29 2.3.1 Definitions, Conceptualisation and Operationalisation of Dependent and Independent Variables ....................................................................................................................................... 29 2.3.2 A Note on Epistemology in Interdisciplinary Research ........................................................... 33 2.3.3 Research Hypotheses ............................................................................................................................... 34 2.3.4 Research Methods ..................................................................................................................................... 35 2.4 CASE SELECTION ............................................................................................................................................ 38 Chapter 3. Legal Background and Policy Network .................................................................................. 41 3.1 LEGAL BACKGROUND .................................................................................................................................... 41 3.1.1 Pre-19 th Century Foundations of English Charity Law ............................................................ 41 vi 3.1.2 Defining “Charitable” .............................................................................................................................. 45 3.1.3 Historical Role of Public Benefit in Charity Law......................................................................... 48 3.1.4 Charities in English Welfare: Education and Healthcare ....................................................... 50 3.1.5 Public Benefit pre- and post-Charities Act 2006......................................................................... 58 3.1.6 Implications for the Charity Commission
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