A Charity Commission for Wales ... and more

Yesterday, Plaid Cymru called for the establishment of a dedicated Charity Commission for Wales. The timing was a little cringeworthy, making it look rather like the AWEMA scandal was a bandwagon to be jumped on. AWEMA is just one of several thousand charities in Wales, and I don't think we need to change the way charities are regulated in Wales just because of one of them was rotten. Our approach needs to be coherent and principled rather than run the risk of being seen as opportunistic.

Both Scotland and Northern Ireland have their own bodies: the Office of the Scottish Charity Regulator and the Charity Commission for Northern Ireland. So the question to ask is why Wales should be in a different position. Cheryl Gillan's Wales Office is quoted in the Western Mail as giving this reason:

"Wales shares the same legal jurisdiction as England, so establishing a separate Welsh Charity Commission would lead to unnecessary duplication, bureaucracy, inconsistency and confusion, particularly for the large number of charities that operate throughout England and Wales."

Western Mail, 5 March 2012

But would it? Let's look at it more closely.

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It might interest people to know that the Charity Commission for Northern Ireland has only recently some into existence as the result of the Charities Act (Northern Ireland) in 2008. Prior to this, charities in the Six Counties did not need to be registered, and indeed could not be registered as charities. The only way their existence as charities could be officially recognized was through their tax status.

This was hardly a good state of affairs; but as registration of charities is considered necessary, why set up a new and separate Charity Commission for Northern Ireland rather than bring the Six Counties under the wing of the Charity Commission for England and Wales? There must be a large number of charities that operate across Wales, England and Northern Ireland, so if we follow Cheryl Gillan's reasoning it would surely have been more consistent and less confusing to do that than to set up a completely separate commission, even though there are obviously costs involved in terms of duplication and bureaucracy. In the case of Northern Ireland, the greater benefits of a separate commission in terms of local knowledge, greater transparency and more direct accountability were obviously seen to outweigh those disadvantages. Wouldn't the same be just as true for Wales?

Besides that, a separate Charity Commission for Wales would also be consistent with the Tories' proclaimed commitment to "nothing less than radical decentralization". So it would appear that the only substantive objection to setting up a separate Charity Commission that the Wales Office has left is the matter of Wales and England being part of the same legal jurisdiction.

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Now I'm not at all convinced that this really is an obstacle. There are already several separate regulatory bodies for Wales even though we are part of the same legal jurisdiction as England; for example the Care and Social Services Inspectorate Wales, the Care Council for Wales, the Healthcare Inspectorate Wales and the General Teaching Council for Wales. There really shouldn't be a problem adding the regulation of charities to this list, especially because many of them tend to work in areas which are already devolved to Wales and because many of them will receive some funding through either the Welsh government or Welsh local authorities.

But perhaps it might be better to put the issue the other way round and say that once a separate legal jurisdiction for Wales has been recognized, then not only the Charity Commission but all similar organizations should be reconstituted as separate Welsh and English bodies.

There is certainly momentum for Wales to become a separate legal jurisdiction. Carwyn Jones has been arguing strongly for it since immediately after the referendum on primary lawmaking powers, for example here; and the Assembly itself (not to be confused with the Welsh Government) launched a parallel consultation on the issue last December, details of which are here. The Scoping Paper on that page provides a short and easy to digest outline of the issues involved. The 357 pages of submitted evidence takes rather more determination to get through.

As I see it, a separate legal jurisdiction for Wales is already emerging. It is more a question of recognizing that a divergence between the law that applies in Wales and the law that applies in England has been happening slowly for some decades, has increased since the Assembly was established, and will now accelerate as the result of the Assembly becoming a legislature with primary lawmaking powers. It therefore makes sense for the administration of justice to be devolved to the Assembly in just the same way as it is already devolved in Scotland and Northern Ireland. In practical terms this is what being a separate legal jurisdiction entails. In itself, it is not a particularly big step to take, but getting it will remove many of the previous objections to Wales getting a devolution settlement that is broadly equivalent to that of Scotland and Northern Ireland.

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Which brings us back to the point about a Charity Commission for Wales. We know full well that despite the Conservative party's declared commitment to decentralization, the Wales Office has the same knee-jerk reaction to any call to devolve more areas of responsibility to Wales: they will always come up with a reason not to do it. So let's play them at their own game. Even though I think it's bogus, let's accept that their reason for not having a Charity Commission for Wales is simply because we do not have a separate legal jurisdiction in Wales. But when we do get that, as I think is inevitable, there will be no reason left for refusing not only to let us have this, but for the same logic not to apply to all the other regulatory bodies which are currently constituted on an England and Wales basis.