Memorandum from Religions Working Together
(DCH 169)
NOTE ON THE APPLICATION OF THE PROPOSED TEST
FOR PUBLIC BENEFIT TO CHARITIES FOR THE ADVANCEMENT OF RELIGION
INTRODUCTION
1. This Note is prepared for the group called
Religions Working Together ("the Group"), a diverse,
inter-faith group of ministers and representatives who have concerns
about the public benefit provisions in the draft Charities Bill.
I understand that it is intended that it should be put before
the Committee which is giving pre-legislative scrutiny to the
draft bill.
DEFINITION OF
RELIGION
2. The definition of "religion"
in charity law is unclear. Despite other dicta in both English
and Commonwealth case law which suggest a broader definition,
the Charity Commission have followed Dillon J's dictum in the
South Place Ethical Society case to the effect that religion
requires both belief in a deity and the worship of that deity.
But there are exceptions. The adherents of some of the faiths
represented by the Group, eg Jains and Buddhists, are not required
to believe in a deity and yet those religions are accepted as
within the definition. A statutory definition would be welcome
to the Group and would assist in clarifying the law.
3. The meaning of "religion" in
charity law has greatly changed over the years. It has been extended
from the established Church to (i) Roman Catholicism, (ii) non-Conformist
Christianity, (iii) Judaism and (iv) Islam. Further, whereas as
it used to be thought that the religion in question had to be
monotheistic, the Charity Commission recognise it as extending
to Hinduism, a faith which recognises many gods. The varieties
of religious belief and practice have continued to increase and
develop since 1980, and whilst there has been a fall in the number
adhering to traditional forms of religion there is a renaissance
of interest in and concern for spiritual values, which are often
not associated with a particular belief system. It seems clear
to me that the time has come for the courts, if not Parliament,
to provide a rational, comprehensive definition to match our times.
4. This should be sufficiently flexible
to encompass more modern types of religion, in which there may
be greater tolerance and a more rational approach to belief, and
sufficiently robust to exclude mere philosophy and the cult of
individuals.
5. The Report of the Inquiry into the Definition
of Charities and Related Organisations published by the Australian
Government in June 2001 recommended the following definition of
religion in charity law:
belief in a supernatural Being, Thing or Principle;
and
acceptance and observance of canons of conduct
in order to give effect to that belief.
ADVANCEMENT OF
RELIGION
6. Lord Hamworth MR defined advancement
of religion in the Keren Keyemeth case as "the promotion
of spiritual teaching in a wide sense, and the maintenance of
the doctrines on which it rests, and the observances that serve
to promote and manifest it."
PUBLIC BENEFIT
7. Under the existing law it has been held
that, generally speaking, "any religion is better than none"
on the basis that the advancement of religion is beneficial to
mankind because it spreads knowledge of a moral code and encourages
good behaviour. (In the words of Walton J "[a religion is]
a set of beliefs which take [a man] outside his own petty cares
and leads him to think of others.") Further, it has been
held that the practice of religion by retreatants or others who
worship together in private is beneficial to the community if
they then return to the everyday world, informed and guided by
their beliefs.
8. Under the provisions of clause 3(2) of
the draft bill, it is no longer to be presumed in relation to
any particular purpose that the requirement for public benefit
is satisfied. It should be noted that it is the purpose (of the
particular charity) not the general description of the purpose
as set out in clause 2(2), that is referred to. Therefore when
the question of charitable status arises before the court or the
Charity Commission it will not be enough that there is nothing
to show that the religion in question is harmful: a positive demonstration
of public benefit will be required in order to obtain recognition
as a charity.
HUMAN RIGHTS
9. Charities for the advancement of religion
differ from other charities in that they are directly affected
by the Human Rights Act 1998, which guarantees, for both individuals
and organisations, both freedom of religion and freedom from discrimination
in respect of the enjoyment of religious freedom. It is of particular
importance that the Charity Commission should not be compelled
to act in a discriminatory way in the absence of clear reasons
which can be shown to be in the public interest.
10. The effect of the proposed change in
charity law will potentially be to increase the number of religions
whose advancement is permitted by the law of the land but not
encouraged by charity law. For example, the facts in Thornton
v Howe or Re Watson, which relied on the presumption,
might lead to a different conclusion in the future. Members of
the Group consider that the denial of charitable status to institutions
within this category is a breach of their human rights in that
it is a species of discrimination against members, contrary to
article 14 of the ECHR, in relation to their freedom of religion
under article 9.
11. The Charity Commission has acknowledged
that, generally speaking, the treatment of a religious institution
less favourably than another in relation to an application for
registration as a charity can amount to unlawful discrimination,
but no court has yet been asked to consider whether the advancement
of all religions permitted under human rights legislation should
be treated as charitable. This remains an open question, therefore,
and (in consequence) so is the question whether the draft bill
complies with the Act of 1998.
12. If all permitted religions were in fact
to be treated in the same way there would be a benefit not only
to them but also to the Charity Commission, which would be saved
the task of delving into often subjective and esoteric belief
systems, and forming judgments which are not normally the concern
of government and are eschewed by, for example, the Inland Revenue
and the Prison Service.
13. In this connection I would point out
that the Charity Commission, under the draft bill, will specifically
be performing its functions on behalf of the Crown (see Clause
4, the new section 1A(3) of the 1993 Act), and actually determining
questions of charitable status as well as recognising it in charities
which apply for registration (see Clause 5, the new section 1C(2)
1 of the 1993 Act). In these respects it will be acting in an
executive rather than a truly judicial way, and will be more closely
aligned to the government than has been the perception until now.
STATUTORY GUIDANCE
14. The view has been expressed, initially
by the Charity Commission in their first response to the Strategy
Unit Report and subsequently by some prominent charities such
as Cancer Research UK and the NSPCC, that some statutory guidance
should be provided for the Commission to assist them, the new
Charities Appeal Tribunal and the court both in assessing application
for registration and in monitoring.
15. In my view, it would be unhelpful for
the Bill to attempt to prescribe an exhaustive test of public
benefit which was intended to apply to all charities, but it would
be worth considering the inclusion of a clause setting out the
sorts of considerations which the court and the Charity Commission
may take into account when assessing public benefit.
16. In the case of religious charities special
care must be taken to ensure that any tests do not discriminate
against any religion, and are applied equally to all religious
charities. This could be as simple as asking the organisation
to confirm that its doctrine and practices encourage moral and
altruistic behaviour in people who will mix with the public at
large. Any test which is more onerous than this is likely to prove
problematic, and require religious charities to provide benefits
beyond those which they are currently presumed to provide.
CONCLUSION
17. The Group urges the Committee to (i)
clarify the definition of religion in charity law by replacing
an archaic definition, which is not consistently applied, with
a simple non-discriminatory and inclusive definition, (ii) provide
direction to the Charity Commission on the public benefit to be
shown by all religious charities, and (iii) ensure that religious
charities are not required to provide benefits beyond those which
are presently presumed.
June 2004
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