Memorandum from the Institute on Religion
and Public Policy (DCH 103)
INTRODUCTION
1.1 The Institute on Religion and Public
Policy is a Washington, DC-headquartered non-profit, non-partisan,
inter-religious organization that seeks to shape the public participation
in policy of the community of faith. With offices in Brussels
and a presence at the United Nations, the Institute facilitates
the expression of faith in the public interest through various
program activities and research in the public policymaking process.
The Institute promotes co-operation and communication between
policymakers and faith-based organizations and charities to achieve
an optimal relationship on both domestic and international public
policy concerns. The Institute on Religion and Public Policy impacts
and affects those places where religion has an identifiable and
inextricable influence on public life.
1.2 The Institute on Religion and Public
Policy is a non-profit, non-partisan organization dedicated to
the research and encouragement of co-operation between religion,
ethics and morality and government, politics, and policy in both
the domestic and foreign arenas. The Institute seeks to provide
a trusted, balanced forum where Democrats and Republicans, liberals
and conservatives, Protestants, Jews, Muslims, Catholics, and
peoples of all faiths and beliefs can meet and come to an understanding
and plan of action on issues of common concern. The Institute
provides an opportunity for individuals and organizations of diverse
backgrounds, which may otherwise never have an opportunity for
such cooperation, to sit at the same table in a respectful and
open dialogue to collaborate on issues affecting religion and
public policy around the world.
1.3 The Institute promotes cooperation and
communication between policymakers and faith-based organizations
and charities to achieve an optimal relationship on domestic and
international public policy concerns. The Institute monitors legislation
in national legislatures that concerns religious freedom and religious
organization issues, including charities, to ensure that such
legislation complies with international human rights standards.
1.4 The purpose of this submission is to
address two deficiencies in the Draft Charities Bill: (1) the
failure of the Home Office to implement the Strategy Unit's proposal
to widen the definition of religion consistent with international
standards; and (2) the proposed measure to abolish the presumption
that the advancement of religion is for the public benefit whilst
failing to provide precise and objective standards concerning
a "public benefit test". These deficiencies contravene
the Human Rights Act 1998 (HRA) by allowing for discrimination
against minority religious organizations in the application of
charity law.
DEFINITION OF
RELIGION
2.1 In its consultation report, Private
Action, Public Benefit, the Strategy Unit proposes that the
"current interpretation of religion be widened" through
legislation under the new purpose of Advancement of Religion to
"clarify that faiths that are multi-deity (such as Hinduism)
or non-deity (such as some types of Buddhism) should also qualify".
(Section 4.34.)
2.2 This proposal to broaden the current
interpretation of religion is consistent with human rights principles
at the heart of Prime Minister Blair's government. There can be
no doubt that the HRA has a profound effect on how inclusive the
definition of religion must be to comply with international norms
that are now directly incorporated into domestic law. For the
first time, affirmative rights have been introduced to protect
minority religions.
2.3 The refusal of the Home Office to adopt
the Strategy Unit's recommendation to do away with current inequities
and discrimination so as to align charity law with the human rights
standards incorporated in the HRA represents a glaring deficiency
in the draft legislation that must be remedied.
2.4 The Charity Commission currently defines
a religion for purposes of charity law as requiring a belief in,
and Judeo-Christian-style worship of, a Supreme Being. Such a
test is inappropriate and represents the essence of religious
discrimination.
2.5 The critical need for the Strategy Unit's
proposed reform regarding the interpretation of religion is underscored
by the fact that more than 400 groups registered as religious
organizations, including 144 Buddhist organizations, several groups
of Jains, Hindu groups, Christian Scientists, Unitarian Churches,
Odinshofs, Quakers, and Spiritualists do not meet the current
Charity Commission definition of religion. These groups of course
should be registered and the Charity Commission has no intention
of applying its current religion definition to them—graphically
illustrating the arbitrary and discriminatory nature of the Commission's
current approach and the vital necessity for reform.
2.6 As a report to the Home Office on the
subject finds, the incorporation into domestic law of the international
norms and standards in the European Convention on Human Rights
"creates a major contextual shift for the consideration of
policy responses to the issues of discrimination on the basis
of religion".[19]
These practical policy concerns for all legislative proposals
are inherent in section 19 of the HRA, which requires Ministers
to certify that government Bills laid before Parliament comply
with the international human rights standards in the European
Convention on Human Rights. Yet, the Home Office has failed to
widen the definition of religion as proposed by the Strategy Unit
in its Draft Bill to comply with the Convention and fundamental
human rights.
2.7 There is no question that the Charity
Commission's restrictive definition of religion does not meet
human rights standards and that legislation widening the definition
is required. The University of Derby Religious Resource and Research
Centre, in its January, 2000 Interim Report to the Home Office
on policy proposals to Religious Discrimination, has published
a definitive study finding that the rights which the Convention
and the HRA convey must apply equally to New Religious Movements,
that no distinction may be made between different kinds of belief,
and that no legal basis exists to separate out new and minority
faiths from world religious traditions. The Report notes that
any definition of religion "that does not take account of
the non-theistic traditional world religions of Buddhism or Jainism,
let alone the newer religious movements such as Scientology"
would be "problematic".[20]
2.8 The requirement of a broad definition
of religion is also properly recognised in the Employment Equality
(Religion or Belief) Regulations 2003 implemented by Parliament:
regulation 2(1) defines "religion or belief" as any
religion, religious belief or similar philosophical belief".
In the Explanatory Notes for the regulations, the Department of
Trade and Industry notes:
"The reference to religion is a broad one
and is in line with the freedom of religion guaranteed by Article
9 ECHR. It includes those religions widely recognised in this
country such as Christianity, Islam, Hinduism, Judaism, Buddhism,
Sikhism, Rastafarianism, Bahai's, Zoroastrians and Jains . . .
The European Court of Human Rights has recognized other collective
religions, including . . . the Church of Scientology . . ."
2.9 Likewise, Justice, the British section
of the International Commission of Jurists, in a Briefing to Parliament
on the Anti-Terrorism Crime and Security Bill, provided its opinion
that the definition of religion needed to be widened in the United
Kingdom to bring it in line with Article 9 of the European Convention:
"The term religious hatred may not be open
to such a wide interpretation, as within the UK, the definition
of religion has been more narrowly interpreted, mainly in the
context of charity law. It has been used to exclude Scientologists
and some other new religious movements. We would propose that
the provision be amended to bring it into line both with Article
9 and the new obligations under the EC Employment Framework Directive".[21]
2.10 The most important feature of a definition
of religion is that it not be discriminatory and that it treat
all religions equally. The Government has an obligation under
the HRA to eradicate discrimination between religions. In order
to remove the anomalies created by the narrow interpretation of
religion in the United Kingdom, legislation broad and flexible
enough to encompass all religions and all forms of worship is
required.
2.11 That is precisely why the Strategy
Unit proposed expanding the definition of religion to meet current
human rights standards. Yet, the Strategy Unit's main purpose
of modernizing charity law is undermined by the Draft Bill's omission
of a broad definition of religion as mandated by the HRA. It is
vital that the definition of religion be subject to parliamentary
scrutiny through legislative language in the Charities Bill that
restores the Strategy Unit's purpose to ensure that the term religion
under charity law is brought up to date so that it is broad enough
to satisfy the HRA by encompassing all religions.
PUBLIC BENEFIT
3.1 The draft Bill purports to set out the
public benefit test for charities by abolishing the presumption
that the advancement of religion, education or the relief of poverty
is for the public benefit, and by referring to the existing concept
of "public benefit" as it is understood in charity law
rather than defining the term with objective and precise standards
in the legislation.
3.2 Any new measures to change the presumption
under existing law that the advancement of religion is for the
public benefit must be considered within the framework of the
HRA and the European Convention to ensure they satisfy two key
principles:
— They must be carefully designed to
further the European Court of Human Rights policy of "true
religious pluralism" to prohibit discrimination between religions.
— They may neither vest officials with
"wide discretion" on matters relating to religion nor
allow for the subjective evaluation of the merits of religious
practices and beliefs.
3.3 As presently drafted, the public benefit
section of the Bill fails to satisfy these principles. Abolishing
the presumption of public benefit for religions and not providing
an objective and precise public benefit test would empower officials
with unfettered discretion. Its application to religious organizations
will necessarily require official evaluation of different religions
to determine the benefit that flows to the public, which will
inevitably lead to discrimination through subjective judgments
of religions in relation to the public benefit issue.
3.4 This expansive approach to the concept
of public benefit is consistent with the European Human Rights
Court's application of a fundamental human rights policy of the
European Community to religious freedom issues—"the
need to secure true religious pluralism, an inherent feature of
the notion of a democratic society".[22]
3.5 In furtherance of this policy of "true
religious pluralism", the Court has instructed governments
"to remain neutral and impartial" and has been loathe
to accept any restrictions on religion, viewing any contested
measures with "strict scrutiny".[23]
The Court has also criticized and struck down measures that vest
officials with "very wide discretion" on matters relating
to religion.[24]
In criticizing broad discretion in one case, the Court held that
"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."[25]
3.6 Instead, the Court determined that officials
should be limited to verifying, "whether the formal conditions
laid down are satisfied". It stressed that seemingly innocuous
administrative action restricting the rights of minority religions
operated as a "lethal weapon against the right to freedom
of religion."[26]
The Court has also emphazised, "in exercising its regulatory
power in this sphere and in its relations with various religions,
denominations and beliefs, the State has a duty to remain neutral
and impartial"; this duty of neutrality "is incompatible
with any power on the State's part to assess the legitimacy of
religious beliefs."[27]
3.7 As the Court has determined that the
Government may neither assess the merits of religious practices
and beliefs under ECHR Article 9, nor favor some religions over
others under ECHR Article 14, then the Government surely may not
apply a public benefit test to provide privileges to some religious
organizations while imposing hindrances on others based on assessments
of such practices and beliefs. Yet, abolishing the presumption
of public benefit for religious organizations in the Bill provides
a convenient pretext for officials to discriminate against minority
religions, thereby eroding fundamental rights.
3.8 It is significant that not only minority
faiths, but also the Archbishops' Council of the Church of England
have expressed concern about abolishing the presumption of public
benefit for religious organizations due to vesting such broad
discretion in decision makers.[28]
The presumption of public benefit should be retained for organizations
seeking registration for the purpose of the advancement of religion
so that the personal opinions, prejudices and predilections of
those officials who apply the law are not permitted to undermine
the principles of equality and non-discrimination at the heart
of international human rights standards. European Court of Human
Rights decisions require no less.
3.9 Retaining the presumption solely for
religious organizations to protect them from discriminatory treatment
is consistent with the HRA. Indeed, section 13 of the HRA emphasizes
that if government action "might affect the exercise by a
religious organization (itself or its members collectively) of
the Convention's right to freedom of thought, conscience and religion",
it must have "particular regard to the importance of that
right".
June 2004
19 Research Project on Religious Discrimination, An
Interim Report for the Home Office, Religious Resource and Research
Centre, University of Derby, at 60 (hereinafter "Derby Report"). Back
20
Derby Report, section 1.4 at 7. Back
21
Justice, Briefing on the Anti-Terrorism Crime and Security Bill,
House of Lords Second Reading, November 2001, at 14. Back
22
Manoussakis Others v Greece, (59/1995/565/651)
(26 September 1996), paragraph 44. Back
23
Metropolitan Church, paragraph 117; Manoussakis, paragraph 44. Back
24
Manoussakis, paragraph 45. Back
25
Manoussakis, paragraph 45; Metropolitan Church, paragraph 117. Back
26
Manoussakis, paragraphs 41, 50-51. Back
27
Metropolitan Church, paragraph 117. Back
28
Response of the Archbishops' Council to the Report of the Strategy
Unit, December 2002. Back
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