Memorandum from British Humanist Association
(DCH 62)
SUMMARY
The Human Rights Act makes official discrimination
on the basis of religion or belief unlawful, and "belief"
certainly includes non-religious beliefs such as Humanism. The
perpetuation of a separate head of charity for "the advancement
of religion" (rather than religion or belief) constitutes
discrimination which is not merely formal (Humanism can qualify
under the catch-all "other analogous purposes" head)
but actually damaging in a number of ways that we specify. Insofar
as it may result in less favourable treatment for non-religious
causes it is unlawful.
Whereas for the Human Rights Act's central purpose
of protection of the rights of the individual a very wide definition
of "beliefs" is required, so as to include even those
most would agree are eccentric, a narrower category must be defined
where what is in question is a privileged status and a degree
of relief from taxation. This will be produced in part by the
requirement of public benefit, and the Bill, by removing the presumption
that the advancement of religion is charitable, will require a
similar scrutiny of religious applicants for charity status.
The criteria for judging the public benefit
from organisations for the advancement of religion and those for
the advancement of non-religious beliefs must not be discriminatory.
If both types of charitable purpose are placed under the same
head ("advancement of religion or other beliefs"), and
a suitable definition is included as to what qualifies as a religion
or belief, then non-discriminatory tests for charitable status
can be developed that are applicable to (and needed for) both
religious and non-religious beliefs and lifestances. We suggest
in some detail ways of achieving this.
THE BRITISH
HUMANIST ASSOCIATION
1. The British Humanist Association (BHA)
is a registered charity. Its primary object is the advancement
of Humanism[2].
It is the principal organisation supporting and representing the
interests of the large and growing population of ethically concerned
but non-religious people living in the UK.[3]
It is committed to human rights and democracy, and has a long
history of active engagement in work for an open and inclusive
society.
INTRODUCTION
2. We welcome the main reforms proposed
in the Bill, in particular the requirement that public benefit
shall be basic to acceptance as a charity, although we feel strongly
that the Charity Commission should scrutinise existing charities'
activities for public benefit, and we are broadly in favour of
the proposals put forward by the Directory of Social Change[4].
We are concerned, however, that the draft Bill discriminates between
religious and non-religious beliefs. This discrimination is not
compatible with the European Convention on Human Rights and the
Human Rights Act 1998; and we propose a simple remedy.
HUMAN RIGHTS
3. Article 9 of the European Convention
on Human Rights, incorporated in British law under the Human Rights
Act, reads in part:
Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom to change
his religion or belief and freedom, either alone or in community
with others and in public or private, to manifest his religion
or belief, in worship, teaching, practice and observance.
4. The same phrase is used in Article 18
of the International Covenant on Civil and Political Rights[5]
where it has been glossed by the UN Human Rights Committee as
"protect(ing) theistic, non-theistic and atheistic beliefs,
as well as the right not to profess any religion or belief"[6]
and this breadth of definition—which without any doubt embraces
Humanism—has been confirmed in case law[7].
5. The phrase was adopted in the European
Union directive on religious and other discrimination in employment[8]
and hence in the Employment Equality (Religion or Belief) Regulations
2003. It is significant that the Government amended its own Communications
Bill to extend the obligation on public service broadcasters to
providing programmes about "religion and other beliefs"
rather than just religion, adding a definition of what qualified
as "beliefs"[9].
The Charity Commission themselves recently changed their guidance
to extend a ruling on promotion of religious harmony as a charitable
object to cover non-religious beliefs.
6. Article 14 of the European Convention
requires that the rights and freedoms it guarantees "shall
be secured without discrimination on any ground such as . . .
religion . . .", and section 6 of the Human Rights Act makes
it illegal for public authorities to discriminate on such grounds.
Official discrimination on grounds of "religion or belief"
is therefore unlawful and no privilege may in future be accorded
to any religion or to religions as a class while excluding non-religious
beliefs such as Humanism.
7. Moreover, section 3 of the Human Rights
Act requires that "legislation must be read and given effect
in a way which is compatible with the Convention rights"
which suggests that, if unlawful discrimination is to be avoided,
"religion" must be interpreted to include non-religious
beliefs.
THE DEFINITION
OF "CHARITABLE
PURPOSE" IN
THE DRAFT
BILL
8. The draft Bill, however, (in clause 2(2)(c))
picks out "the advancement of religion" as a category
of charitable purposes without any mention of "the advancement
of non-religious beliefs". This is to discriminate between
these two categories of systems of belief. Prima facie this fails
to satisfy the European Convention and the Human Rights Act. The
onus is on the legislature to ensure that the Bill, as passed,
with amendment as necessary, will not disadvantage non-religious
systems of belief. This can best be achieved by treating religion
and non-religious beliefs in the same way (and keeping them together
in the Bill) unless there is some vital purpose to be served by
dealing with them separately, and then only if it can be guaranteed
that non-religious systems of belief will not suffer as a result.
9. We have made representations to this
effect to the Home Office and have had a meeting with them. They
do not contest that the advancement of Humanism is and should
remain a charitable purpose, but for reasons we do not understand
they do not wish to amend clause 2(2)(c).
10. There are on the face of it two other
ways that advancement of non-religious beliefs can qualify as
charitable
(a) by interpreting "advancement of
religion" to include "advancement of non-religious beliefs"
in line with section 3 of the Human Rights Act—but it would
be highly unsatisfactory deliberately to use the word "religion"
in legislation to indicate something so contrary to normal usage;
(b) by continuing to qualify under clause
2(2)(l). This is the rag-bag "other purposes within subsection
(4)" with its references to "purposes recognised as
charitable purposes under existing charity law" and to analogy
built on analogy.
11. The advancement of Humanism cannot qualify
under any of the other heads (a) to (b), (d) to k). In particular,
it cannot qualify under (b)—the advancement of education,
since education (in the general charitable sense) must not involve
the promotion of controversial beliefs or opinions.
12. Our objections to relegation to the
"rag bag" are not nugatory. Clause 2(2) of the Bill
classifies the purposes which are charitable; and the public benefit
appropriate to each purpose follows from its characterisation.
Relegation to 2(2)(l) leaves the public benefit of "advancing
Humanism" in dispute and leaves us open to unfavourable discrimination.
We have ourselves been challenged by opponents who question our
right to "advance" Humanism, as against merely to "educate
about" Humanism. And a Humanist organisation has recently
experienced unreasonable difficulties at the hands of the Charity
Commission when it applied for registration—even though
its objectives were identical to those of existing charities.
13. There is also a very serious the matter
of principle. The separation of Humanism from religion, with the
elevation of the latter to a category of its own and relegation
of Humanism to the "rag-bag", implies that Humanism
is not equivalent in kind or in value. It is a public slur on
non-religious beliefs.
14. We therefore submit that the third head
of charitable purposes, "advancement of religion", should
be extended to include non-religious beliefs, with both required
to meet exactly the same criteria.
THE DEFINITION
OF "RELIGION
OR BELIEF"
15. It is axiomatic in charity law that
public benefit is demonstrated, and in the case of religious charities
the Bill proposes to abolish the present rebuttable presumption
of public benefit, which will in this regard place religious and
non-religious beliefs formally on the same footing.
16. However, careful consideration of what
will qualify for charity law as a "religion or belief"
is required. In the context of human rights, where an individual
is claiming freedom to practise his religion or belief, the only
legitimate limitation is genuine social damage, or damage to other
individuals. But where an organisation is claiming a privilege,
in particular very significant financial advantage at public expense,
it is proper to impose a narrower definition. The word "belief"
is of wide significance and needs examination.
17. Before turning to "belief",
however, it is worth noting that the interpretation of "religion"
is already beset with difficulty. For example:
(a) The narrow definition of "religion"
in English law[10]
calls in question the position of non-theistic religions such
as Buddhism—a problem recognised by the Cabinet Office Strategy
Unit, which recommended that the law be changed to "clarify
that faiths that are multi-deity (such as Hinduism) or non-deity
(such as some types of Buddhism) should also qualify".[11]
(It should be noted that widening, whether by legislation or by
exercise of the Charity Commission's discretion, "the advancement
of religion" to cover non-theistic lifestances that happen
to be called religions such as Buddhism, while excluding non-theistic
lifestances such as Humanism that happen not to be so called,
makes the discrimination against Humanism all the more obvious.)
(b) Controversial causes such as Scientology
have hitherto been excluded from charitable status in part on
the ground that they are not "religions" in English
law, on the present rather narrow definition. This ground for
exclusion is unlikely to survive any extension of the definition
of religion. More immediately, it is surely vulnerable to a challenge
under the Human Rights Act. (A successful challenge would, of
course, still leave the public benefit hurdle to be cleared.)
18. What is the critical public benefit
that flows from the advancement of religion? At their best, religions
foster mental and moral improvement. This distinguishes religions
from the generality of "social service" charities: religious
organisations may give social service, but they give more than
that. They give a basis for morality and a grounding and inspiration
for good living. But belief in a God is not essential for these
benefits. Humanism and religion are alike in this: Humanism also
provides a world view as a basis for morality, inspiration and
responsible living. It does not promote belief in God or worship
of him, but the Human Rights Act establishes that this cannot
be used as a basis for discrimination, whether in charity law
or elsewhere.
19. Linking (non-religious) beliefs with
religion under a single head of charity not only avoids discrimination,
but also offers other important advantages. In particular, it
enables each to shed light on the other. Administrative precedent
and case law about religious charities should more easily be kept
in line with that about non-religious beliefs and vice versa (as
required by the Human Rights Act) if they are dealt with under
a single head of charitable purpose.
20. Moreover, the linking of religion and
belief helps define "belief", implicitly requiring that,
in order to qualify, beliefs must be in some sense analogous to
religions. A further aid to definition comes from observing that
a broad interpretation of the English word "belief"
is inconsistent with the meanings of the corresponding words in
the French and German versions of the Universal Declaration and
the European Convention on Human Rights. The French term is conviction
and the German is Weltanschauung. The use of "conviction"
in English is problematic because it has penological associations,
which the French word lacks, but the word "conviction"
without this unfortunate association expresses a significant aspect
of what is required. Both "conviction" and Weltanschauung
suggest deep or ultimate beliefs which are parallel to those of
a religion. It is proper, therefore, that "religion or belief"
should be so interpreted. We ourselves use the term "lifestance"—a
concept that encompasses both religious and non-religious beliefs.
21. The courts have already established
a part of this, holding in one case
that "belief means more than just `mere
opinions or deeply held feelings': there must be a holding of
spiritual or philosophical convictions which have an identifiable
formal content"[12]
and in another that
"the term `beliefs' . . . denotes a certain
level of cogency seriousness cohesion and importance".[13]
22. A formal definition of the third head
of charity might therefore be on the following lines:
The advancement of a religion or belief, where
that religion or belief expresses a conception of what is ultimately
important and of the implications of this in living, including
an account of morality.[14]
23. This would include those "non-religious
beliefs" which merit charitable status and exclude those
that do not. The definition conveys the necessary quality of a
qualifying religion or non-religious belief, in particular its
moral commitment, and it establishes the necessary analogy with
religion. At para. 4.33, Private Action, Public Benefit says that
practice of a religion "tends generally to contribute to
the social and moral welfare of adherents", thereby establishing
its public benefit. Exactly the same is true of any non-religious
belief that would qualify under the definition in para. 22 above.[15]
24. Such a limitation of "religion
or belief" might be challenged on general human rights grounds.
Many authorities have stressed the necessity of a very wide interpretation—for
example, the UN Human Rights Committee, quoted above in para 4.
A wide interpretation is eminently proper when an individual is
claiming freedom. But it cannot extend to a right to demand special
privileges when the basis for giving these privileges is that
they are earned by the public benefit given by the recipient.
25. For example, the right not to hold any
religion or belief is proper and important, and denial of human
rights to any individual on that ground is wrong. But not holding
any religion or belief in itself gives no public benefit, and
its promotion does not produce charitable benefits. Likewise atheism
as such gives no public benefit, for as such it is simply a denial,
and carries no positive values. Public benefits derive from the
positive commitments expressed in a lifestance, in particular
commitment to morality. The rejection of a god merely clears the
ground: a lifestance which is atheistic derives its account of
morality from positive values in the natural world. Humanism and
Roman Catholicism, with their different foundations for morality,
make moral judgements that differ on some points of considerable
importance, such as contraception, but both lifestances agree
on the key importance of social responsibility and personal morality.
Both must therefore be accepted as giving public benefit. It is
not for the State to declare for or against one lifestance or
the other.
26. Discrimination between beliefs is justified
if it is based on criteria which are fair between beliefs. The
criteria we have suggested are fair. The European Convention establishes
that discrimination on grounds of belief in a god or gods, or
any other supernatural entity, is not.
27. The draft Charities Bill treats religious
and non-religious beliefs differently. This discrimination will
disadvantage non-religious beliefs, and is contrary to the Human
Rights Act. We call on the Joint Committee to ensure that this
is rectified.
June 2004
(a) "As enshrined in Article 9, freedom
of thought conscience and religion is one of the foundations of
a `democratic society' within the meaning of the Convention. It
is, in its religious dimension, one of the most vital elements
that go to make up the identity of believers and their conception
of life, but it is also a precious asset for atheists, sceptics
and the unconcerned."—Kokkinakis v Greece: (1994)
17 EHRR 397, para 31 (emphasis added) and
(b) "The right to freedom of religion as
guaranteed under the Convention excludes any discretion on the
part of the State to determine whether religious beliefs or the
means used to express such beliefs are legitimate."—Manoussakis
v Greece: (1996), EHRR 387, para 47.
2 Its objects are "the mental and moral improvement
of the human race by means of the advancement of Humanism, that
is to say, the moral and social development of the community free
from theistic or dogmatic beliefs and doctrines; the advancement
of education and in particular the study of Humanism and the dissemination
of knowledge of its principles." Back
3
Polls yield different answers according to the question asked
but on average suggest that those who reject religious belief
amount to about 30% of the population, with even official surveys
such as the 2001 census finding about 15% of declared unbelievers.
Of these a significant proportion lead lives according to humanist
principles, even if many have not come across the word or choose
not to label themselves with it. Back
4
See http://www.dsc.org.uk/charityexchange/fee-charging-charities.html Back
5
"Everyone shall have the right to freedom of thought, conscience
and religion. This right shall include freedom to have or adopt
a religion or belief of his choice, and freedom, either individually
or in community with others and in public or private, to manifest
his religion or belief in worship, observance, practice or teaching." Back
6
General comment 22 (30/07/93). Back
7
For example: Back
8
"The purpose of this Directive is to lay down a general
framework for combating discrimination on the grounds of religion
or belief, disability, age or sexual orientation as regards employment
and occupation, with a view to putting into effect in the Member
States the principle of equal treatment."-Council directive
2000/78/EC of 27 November 2000. Back
9
Namely: "`belief' means a collective belief in, or other
adherence to, a systemised set of ethical or philosophical principles
or of mystical or transcendental doctrines". Back
10
For example, Lord Denning in 1970 saw the essence of a religion
as reverence to God: "It need not be the God which the Christians
worship. It may be another God, or an unknown God, but it must
be reverence to a deity."-R v Registrar General
ex parte Segerdal [1970] 3 AER 886 at 889. Similarly, in 1980
Dillon J defined religion as "concerned with man's relations
with God and ethics are concerned with man's relations with man"-Re
South Place Ethical Society: Barralet v Attorney General
[1980] 3 AER 924. In a wider context, Lord Ahmed, speaking
in 1999 in the House of Lords, suggested defining religion as:
"that system of beliefs and activities centred round the
worship of God which is derived in whole or in part from a book
revealed by God to one of his messengers"-Hansard, HL,
28.10.99, column 457. Back
11
Private Action, Public Benefit, para 4.34. Back
12
McFeekly v UK: (1981), 3 EHRR 161. Back
13
Campbell and Cosans v UK: (1982), 4 EHRR 293 para 36-(this
case related to Article 2 -right to education). Back
14
A definition such as that quoted in footnote 8 from the Communications
Act 2003 would be a possible alternative, with the benefit of
uniting the interpretation of "belief" in two branches
of the law. Back
15
We believe this definition would exclude beliefs that would generally
be felt unsuitable for charitable status. Marxism-Leninism, one
belief that might make a serious claim to be a non-religious lifestance,
can be excluded by the well-established principle that politics
is not acceptable as a main purpose of a charity. Marxism-Leninism
has a mixed purpose, and the treatment of such purposes has been
judicially established: "The promotion of a religion meant
the promotion of the spiritual teaching of the religious body
concerned and the maintenance of the spirit of its doctrines and
observances. If a religion imposed some secular aim that did not
make it the promotion of religion" (Keren Kayemeth Le
Jesroel v IR. [1931] 2KB 465 at 469). The applicant
for registration in this case had as its main object the restoration
of the land in Palestine to Jewish occupation, claiming this to
be a religious object for Jews, but the application was refused.
Likewise, political objects are a main purpose of Marxism-Leninism.
As a consequence, even if Marxism-Leninism could establish itself
as a non-religious belief within the proposed definition of "religion
or belief", this would not make its political demands any
less political or its objects any more charitable. Back
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