Memorandum from the Commission for Racial
Equality (DCH 260)
1. INTRODUCTION
1.1 The Commission for Racial Equality (CRE)
welcomes this opportunity to submit evidence to the Joint Committee
on Draft Charities Bill.
1.2 In submitting a response we have not
attempted to address all the issues raised by the committee. Instead
we have focussed on issues we consider to have particular relevance
for the purposes of racial equality. Accordingly our response
will largely address issues surrounding the heads of charity and
public benefit.
2. THE ROLE
AND REMIT
OF THE
CRE
2.1 The CRE is charged with three duties
under the Race Relations Act, 1976:
— working towards the elimination of
racial discrimination;
— promoting equality of opportunity
and good race relations between persons of different racial groups
generally;
— keeping under review the working
of the Act.
Under the Race Relations (Amendment) Act 2000
(the Act), which came into effect on 2 April 2000, named public
authorities are subject to a general statutory duty to ensure
that in:
"carrying out its functions, (to) have
due regard to the need:
(a) to eliminate unlawful racial discrimination;
(b) to promote equality of opportunity
and good relations between persons of different racial groups."
Under this specific duty set out in the Race
Relations Act 1976 (Statutory Duties) Order 2001, listed public
authorities were required to produce a Race Equality Scheme (RES)
by 31 May 2002. The RES should:
set out those functions, policies or proposed
policies an authority has assessed as being relevant for to its
performance of the general duty, and
should contain details of the arrangements made
for:
(i) assessing and consulting on the likely
impact of proposed policies on the promotion of racial equality
(ii) monitoring its policies for any adverse
impact on the promotion of race equality.
(iii) publishing the results of such assessments,
consultations, and monitoring with respect to the above
(iv) ensuring public access to information
and services which it provides; and
(v) training staff in connection with the
duties imposed by section 71(1) of the RRAA and associated orders.
An authority must within a period of 3 years
from the 31 May 2002, and within each further period of three
years, review the assessment referred to in (i) above.
The provisions of the Act and its amendment
will be relevant to all service providers.
3. RACE EQUALITY
IMPACT ASSESSMENT
3.1 The CRE believes that it is vital for
the Home Office to carry out a proper Race Equality Impact Assessment
on the draft Bill and any proposed changes I suggestions made
by the joint committee.
4. LIST OF
CHARITABLE PURPOSES
(HEADS OF
CHARITY)
4.1 The CRE welcomes the proposed modernisation
of charity law through the expansion and updating of the list
of charitable purposes (heads of charity).
4.2 The CRE would like to see the inclusion
of race equality ideals within the new list. The CRE has been
advocating the advancement of an integrated society through the
promotion of good race relations/community relations.
4.3 Furthermore, we note that the promotion
of "good relations between persons of different racial groups"
has been a public duty since the Race Relations Amendment Act
2000 came into force. The CRE believes that there is a clear public
benefit in promoting good race relations.
4.4 The CRE realises that there are examples
of voluntary bodies that have aided in the promotion of good race
relations and good community relations (race, religion and belief).
Their work is vital in promoting an integrated society.
Suggested Amendment to s2(2)(e) of the draft Charities
Bill
4.5 The CRE kindly requests that the committee
consider adding the advancement of good community relations to
the existing head of citizenship and community development.
S.2(2)(e) should read:
"the advancement of citizenship, good
community relations and community development."
5. PUBLIC BENEFIT
TEST
5.1 The CRE notes that there are currently
four heads of charity: the relief of poverty; the advancement
of education; the advancement of religion; and for other purposes
beneficial to the community.
5.2 The public benefit test has two elements.
Firstly, that the purpose of the charity must be beneficial and
not detrimental to the public (the first three heads of charitable
purpose are assumed to beneficial under the current law; the fourth
"other purposes" head is not). Secondly, case law has
established that a sufficient section of the public should receive
this benefit in order for it to be considered charitable. However,
different thresholds have been established for the different heads
of charity.
5.3 The CRE notes that the draft Bill intends
to alter the public benefit test.
Section 2(1) states:
"For the purposes of the Law of England
and Wales, a charitable purpose is a purpose which:
(a) falls within subsection (2); and
(b) is for the public benefit"
5.4 The amended law would remove the assumption
that the original three heads of charity are of public benefit.
All heads will come under a two-stage test public benefit test.
5.5 The Joint-Committee has promised to
look at the definition of public benefit under the proposed Bill.
The current version of the Bill leaves public benefit largely
undefined.
5.6 In our opinion this will leave the definition
of public benefit to the discretion of the Commission and ultimately
the courts on the basis of the law as it stands. However, case
law is scarce and decisions in existing cases (for the heads of
poverty, education and religion) may be challenged and overturned
by the Commission or the Courts. This will cause uncertainty for
existing charities whose charitable purpose lies in the first
three heads and may result unnecessary and expensive litigation
in the future.
5.7 The CRE notes that the committee is
looking at the definition of public benefit under the head of
advancement of education. We hope that the Joint-Committee will
ensure that any changes to the definition of public duty under
this head of charity do not inadvertently redefine all definitions
of public benefit for all heads of charity.
5.8 The CRE hopes that in looking at the
definition of public benefit, the Joint Committee will consider
the impact that redefining public benefit could have on good race
relations. In doing so, we realise different thresholds are needed
for sufficient benefit under different heads of charities.
5.9 The CRE hopes that the Joint-Committee
will ensure that there is a clear definition of public benefit.
Public benefit under the advancement of religion
head
5.10 The CRE notes that according to case
law Sikhs and Jews are defined as racial groups under the Race
Relations (Amendment) Act. Furthermore, many other ethnic minorities
have strong ties with minority faith communities eg the Hindu
population is almost exclusively Indian[141]
in background and the majority of Muslims in this country are
from ethnic minorities.
5.11 The CRE are concerned by the implications
that reconfiguring the heads of charity and redefining public
benefit on good race relations. This may have a negative impact
on minority faith communities who currently enjoy charitable status[142]
and therefore impact on the peaceful coexistence by excluding
some and not others.
5.12 The CRE believes that any attempt to
alter the charitable status of places of worship would be contrary
to good race relations. In particular, we are concerned that any
redefinition of the term will safeguard smaller religious communities
so as not to discourage diversity in areas where there are smalier
ethnic minority communities.
Public benefit under the advancement of education
head
5.13 The CRE notes that the Joint Committee
will be looking specifically at the charitable status of independent
schools.
5.14 The CRE wishes the Joint-Committee
to consider the impact this change will have on independent faith
schools. Currently there are a low number of state-funded faith
schools for Muslims, Sikhs and Hindus in comparison to Christian
faith schools. This lack of provision is in part made up through
private education establishments. This change is likely to have
a disproportionate effect on minority faith communities.
6. CONCLUSION
6.1 The CRE wishes to see the Home Office
produce a Race Impact Assessment on the draft Bill and any proposed
revisions to the Bill by the Joint-Committee.
6.2 The CRE is asking the Joint Committee
to make the following considerations:
(a) To make a race equality impact assessment
on the proposed Bill.
(b) To make a race equality impact assessment
on any proposed changes to the Bill.
(c) To consider expanding the head of charity
at s2(2)(e) to read "the advancement of citizenship, good
community relations and community development".
(d) To ensure a clear definition of public
benefit in order to prevent existing charitable causes facing
unnecessary and expensive litigation.
(e) To uphold the current public benefit
test for religion in order to safeguard the existence of religious
communities made up from ethnic minorities. In particular, we
are concerned that smaller religious communities should remain
unaffected by this Bill.
(f) To consider allowing minority faith schools
to operate as charitable institutions and exempt them from any
decision to strip charitable status from independent schools.
July 2004
141 Source: 2001 Census-84% of those defining themselves
as Hindus also defined themselves as Indian. The majority of others
describe themselves as coming from a mixed background. Back
142
Neville Estates Ltd v Madden (1962). Back
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