Supplementary memorandum from Religions
Working Together (DCH 338)
INTRODUCTION
1. On 14 July 2004 Mr Daoud Rosser-Owen,
on behalf of Religions Working Together, gave oral evidence to
the Joint Committee on the draft Charities Bill. In the course
of that evidence he was asked to provide the Committee with a
further paper detailing difficulties that would be created for
particular religious charities if the draft Bill was passed in
its present form. In this paper therefore we will highlight the
practical consequences for different religious communities and
organisations, and propose possible solutions.
THE PROBLEM
2. The areas of concern for religious charities
have two distinct strands. Firstly there is the definition of
religion itself. Religion is left undefined in the draft Charities
Bill. At present the Charity Commission insist that the correct
definition of religion for the purpose of charity law is one that
factually excludes many well known religious denominations. To
correct this anomaly the legislation should contain an inclusive
definition of religion.
3. The second strand is the public benefit
test that religious charities will have to satisfy, if the presumption
is removed. There is no clear guidance in case-law, or current
Charity Commission practice, which tells us what this will actually
mean to religious charities, and what the tens of thousands of
currently exempt and excepted religious charities will have to
show to the Charity Commission when they are required to register.
Unfortunately one of the difficulties in this area, as with the
definition of religion, is that statements made by the Charity
Commission in recent years indicate that they have a very poor
understanding of religion and what religious charities actually
do. This is another reason that the Charity Commission cannot
be "trusted" to simply resolve this area of law themselves
after the legislation is passed.
THE DEFINITION
OF RELIGION
4. The Charity Commission publish a booklet
entitled "CC21 Registering as a Charity" which sets
out their current practice on charity registration. In the section
which deals with "the advancement of religion" they
state:
"For the advancement of religion to be charitable,
a religion has to:
— be founded on a belief in a supreme being
or beings; and
— involve expression of that belief through
worship."
5. This definition, expressed in a mandatory
form, excludes Buddhists and Jains, many Hindus, and even Quakers
and Unitarians. Indeed of the traditional 11 classical world religions,
5 are excluded in totality or great part by this definition.
6. Although this definition is said by the
Charity Commission to be derived from the comments of a judge
in the South Place Ethical Society case, those comments were just
that—comments, they did not (as the Charity Commission accept)
form a legally binding precedent. They have not been followed
anywhere else in the world, and all of the leading Common Law
countries including Australia, New Zealand, United States and
Canada have instead adopted inclusive definitions of religion.
7. It should also be noted that the Charity
Commission's definition, by discriminating against certain religions,
is not compatible with the Human Rights Act, which domesticates
the European Convention on Human Rights and which guarantees freedom
of religion and prohibits discrimination in the exercise of that
freedom. Moreover, within the family of United Nations' instruments,
freedom of religion is set out in Article 18 of the Universal
Declaration on Human Rights, Article 18 of the International Covenant
on Civil and Political Rights and Article 1 of the 1981 Declaration
on the Elimination of All Forms of Intolerance and Discrimination
based on Religion or Belief. Within the context of these instruments
there is no question that they refer to an inclusive definition
of religion.
8. Far from moving towards an inclusive
definition of religion the Charity Commission have recently indicated
an intention to review the register of existing registered charities
to ensure that they meet their definition. Whilst Mr Kenneth Dibble
told the Joint Committee on 7 July 2004 that the Commission considered
Jainism to be a religion, Jainism certainly does not meet their
mandatory definition. What these entirely contradictory positions
mean for the hundreds of Buddhists and Jainist registered charities
is far from clear. Certainly a Buddhist or a Jain who is thinking
of registering a new charity, and reads the Charity Commission's
publication, will conclude that he cannot do so.
9. The table below was prepared by Dr Bryan
Wilson of Oxford University, one of the world's leading experts
on comparative religion. It shows a number of religious denominations
which have communities in England which do not meet the Charity
Commission's current definition.
|
Religious
denominations | Summary of Practices
and Beliefs
| Belief in a
Supreme Being |
Worship according to the Charity Commission Criteria?
|
|
| Sankhya School of Hinduism | A non-theistic system of belief, recognised as an orthodox school of Hindu religion. Primordial matter and the soul are uncreated and indestructible. Karma governs man's affairs—rebirth is a consequence of past acts. Salvation is escape from reincarnation. Knowledge of suffering and its causes is the way to liberation. Since karma determines one's life-chances, supplicatory prayer (often a cardinal feature in worship in other religions) is eschewed. All conceptions of deity are rejected—an atheistic religion.
| No belief in a Supreme Being. | No.
|
| Jainism | A division from Hinduism. Karma: Alien elements of karma weigh down the soul. The Jain scheme of things leaves no place for a creator God. The great teachers are not regarded as divine, nor is there divine revelation. Jainism is in essence an atheistic system. "Devas" (demi-gods) are acknowledged, but they do not determine man's destiny and are not worshipped. The means of salvation (by overcoming rebirths) is the practice of an ascetic ethic, which liberates the soul, and annuls karma.
| No Supreme Being. The law of cause and effect is the ultimate principle of life. Local devas are not worshipped.
| No. |
| Taoism | Operating among Chinese populations alongside Buddhism, ancestor cults and the ethical system of Confucianism, Taoism promotes a religious cosmogony; organises temple festivities; provides rites of passage. Its mystical teachings embrace a complex universe of spirit beings and heavenly masters who reign over heaven, earth and man.
| Belief in various mystical entities in a complex cosmic scheme but no Supreme Being as such.
| No direct
correspondence. |
| Theravada Buddhism | The universal law of cause and effect issues in karma; unending rebirths ensure unless the individual is liberated by becoming enlightened with respect of suffering. No creator or saviour god is postulated. Salvation is attained by impersonal means, by achieving detachment hence obedience to an ethical code, rather than ritual performances and constitute the means of transcending mundane experience and the material world.
| No Supreme Being. Devas are subject to the same system of rebirth as humans.
| No. |
| Nichiren Buddhism | This branch of Buddhism (Nichiren b Japan 1222) regards subsequent incarnations of the Gautama Buddha as having transcended the enlightenment he brought. Truth is encapsulated in the Lotus Sutra, the mere invocation of which suffices to release the totality of benefits to believers. Reincarnated Buddhas are not gods, merely the vehicles through which progressive illumination may be attained. Every layman has possibility to attain Buddhahood, and happiness in this world is his entitlement.
| No. The universe is regulated by impersonal law of cause and effect—karma, as experienced by humans.
| No. |
| Quakers (Society of Friends) | Special emphasis on the "inward light" (voice of conscience). There is no ritual, no obeisance, no supplication, no formally approved statement of creed. Meetings take the form of collective meditation. No requirement to believe in a Supreme Being, though such an entity is not denied and many do so believe.
| A Supreme Being may be acknowledged but the ethos of Quakerism opposes hierarchy and sovereignty.
| No. |
| Christian Science | Man is purely a spiritual being and the material world is illusory, realisation of which sustains physical healing and even immortality. These ideas are attributed to Jesus, who was not God but a man and an exemplar. There is belief in God, who is frequently referred to in conventional Christian terms as an anthropomorphic god, but more distinctively by synonyms, Mind, Soul, Spirit, Principle, Life Truth, Love, towards none of which are the dispositions expressed in traditional language really appropriate. Mrs Eddy (founder b 1820) said "divine service" should mean daily good deeds not public worship.
| There is belief in a Supreme Being. | Only partial
concurrence.
|
| Unitarians | Reject the doctrine of the Trinity and seek congruity of religion and reason. Permissive with regard to creeds, doctrine, biblical authority and liturgical forms, Unitarians tend to stress ethical commitments rather than ritual obligations. Some Unitarians are avowedly agnostic or even atheist.
| Belief in a Supreme Being is not required and many Unitarians do not believe in a Supreme Being.
| No. |
|
10. Unless the new Act provides for an inclusive definition,
as the table above indicates, many religious communities will
be affected, and many thousands of organisations will be excluded
from the definition of charity.
11. The solution is to adopt a simple inclusive definition
of religion into the Charities Act. The definition which has been
adopted in Australia and New Zealand is:
"belief in a supernatural being, thing or principle;
and acceptance and observance of canons of conduct in order to
give effect to that belief."
This is a simple inclusive definition of religion.
THE PUBLIC
BENEFIT OF
RELIGIOUS CHARITIES
12. The reason why the Charities Bill needs to provide
direction on the public benefit to be shown by religious charities
is that the Charity Commission are currently unable to say what
the public benefit of religious charities is or should be. When
asked about this they usually avoid answering the question directly
and simply say that public worship services will continue to be
considered to provide a public benefit. They are unable however
to answer the question as to why public worship services are
considered to provide a pubic benefit, or to say what other religious
activities should be considered as providing a public benefit
if the presumption is removed. A good example of this "failing
to answer the question" is found in the answers given to
the Joint Committee by Mr Kenneth Dibble on 7 July. For example,
the following exchange:
Q787 Ms Keeble: So "religious purposes" is going
to include just worshipping, not active proseletysing?
Mr Dibble: The celebration of a religious rite
in public is a public benefit for the purposes of religion
under Charity law."
13. A survey of a broad spectrum of religious charities
was provided to the Joint Committee for the 14 July session. A
copy of this is annexed to this paper. This survey shows what
each of the charities actually did, as well as how each was funded.
As can be seen from this the vast majority of work done by religious
charities is "religious help" of many different kinds
given to individuals, outside of public worship services. Indeed
many religious charities do not even provide public worship services.
14. The Charity Commission have also recently indicated
that "religious help" provided on an individual basis—such
as hearing confessions, pastoral counselling, the sale of pujas
in a Hindu temple, and even the provision of religious classes,
provide private and not public benefits. Indeed if one applied
strictly what the Charity Commission have said to all of the organisations
in the survey, including the Church of England church, all would
be excluded from the definition of charity because they provide
some "private benefits".
15. Unfortunately the Charity Commission sometimes confuse
a "private" benefit with an "individual" benefit.
In charity law a "private" benefit is not the same thing
as an "individual" benefit. Ultimately all benefits
are individual benefits. As Mr Justice Carswell astutely observed
in re Dunlop "every part of the public is composed
of individuals". In general, provided the class of possible
beneficiaries is broad enough that no specific individual or individuals
are bound to benefit, and that those that make the decision cannot
benefit, there will not be said to be a private benefit in charity
law.
16. Religious charities must be considered in a special
category, as the benefits that they provide are often intangible.
They may be very real to the people concerned, but very difficult
to prove empirically. According to case law, the reasons why the
advancement of religion—any religion—is considered
to be a charitable purpose is that it is considered that people
who have a religion, and regard man as a spiritual being, rather
than a material object, generally treat their fellow man more
decently. This was best summed up by Mr Justice Walton in the
Holmes case in 1981 when he said:
"It has long been settled that the law presumes that
it is better for man to have a religion—a set of beliefs
that take him outside his own petty cares and leads him to think
of others—rather than to have no religion at all."
The courts have long considered that it is the public at large
who are the significant beneficiaries of religious charities,
rather than the actual participants in the religious activities.
Walton J went on to say in Holmes:
". . . it is not for the benefit of the adherents of the
religion themselves that the law confers charitable status,
it is in the interest of the public."
17. People who go to a church or a religious centre,
and engage in any activity directed towards gaining greater knowledge
and understanding of their spirituality, are assumed to become
more selfless and benevolent as a result. According to the learned
authors of Tudor on Charities (following Neville Estates
v Madden):
"[a benefit is] assumed to accrue to the public from
the spiritual exercises of retreatants who return to the world
and mix with their fellow citizens."
18. The courts have ruled that the worship of God, in
itself, is not a charitable activity. The religious devotions
of cloistered nuns who never mix with society, or the saying of
private masses which do not influence the actions of persons who
mix with society, are not charitable. It may be a religious belief
that worship and prayer result in benevolent actions by God—but
charity law is not concerned with the actions of God, it is concerned
with the actions of man. Religious activity is only charitable
where it has a positive influence on the hearts and minds of men.
The encouragement of unselfish and benevolent conduct is therefore
the answer to the question: "Why is the promotion of religion
a charitable purpose?
19. Religions encourage unselfishness by two means. Firstly
by advising adherents to engage in practices and rituals through
which they can communicate to a basic spiritual reality—this
includes meditation, prayer, song, fasting, and reading religious
works. Secondly, by directly teaching adherents that the way to
make spiritual progress is to love one's fellow man, and behave
decently and morally. An organisation which encourages unselfish
and benevolent conduct, and which otherwise meets the general
charity requirements, may be considered to be the ultimate in
charities. One which, by definition, will spawn other charities.
20. The courts have also defined what is meant by "the
advancement of religion". In the Keren Kayemeth case
in 1931 Lord Hamworth MR ruled that it meant "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." Any organisation which engages
in spiritual teaching in a broad sense may be considered to provide
the public benefit of religion. The only exception would be an
organisation which simultaneously taught illegal behaviour. Examples
of this exception are very rare indeed.
21. Any test of public benefit applied to religious charities
must be applied to all religious charities, be non-discriminatory,
and must not be too onerous. Nor must religious charities be required
to show that they provide a public benefit beyond that which they
are currently presumed to provide.
22. It is suggested that all religious charities could
be asked to positively affirm that the doctrine and practices
of the religion concerned encourage moral or altruistic behaviour
in people who will mix with the public at large.
23. Even those religious charities whose purpose is to
maintain religious buildings and monuments should be able to make
this affirmation on the basis that those buildings and monuments
serve to maintain and promote a religion and religious activities
which encourage moral or altruistic behaviour in people who will
mix with the public at large.
24. This then provides a simple non-discriminatory public
benefit test for religious charities, that is not too onerous.
SUGGESTED AMENDMENTS
TO THE
DRAFT CHARITIES
BILL
25. To incorporate these suggestions the following amendments
could be made to the draft Charities Bill:
Add to the end of Section 47:
"Religion" includes a belief in a supernatural being,
thing or principle; and acceptance and observance of canons of
conduct in order to give effect to that belief.
Add a new sub-section to Section 3 as follows:
"(5) In determining whether a purpose or purposes
falling within Section 2(2)(c) is for the public benefit such
purpose or purpose shall be considered for the public benefit
if the body or trust concerned confirms that the carrying out
of that purpose or purposes will generally encourage moral or
altruistic behaviour in people who will mix with the public at
large. Such confirmation shall be regarded as definitive unless
the contrary is proven."
CONCLUSION
26. In this paper we have endeavoured to identify the
difficulties posed to particular religious charities by the Charities
Bill as currently drafted, and have proposed solutions to those
difficulties.
July 2004
HOW DIFFERENT RELIGIOUS CHARITIES ADVANCE RELIGION
|
| Religious Charity | Main Activities
| Method of Funding Activities |
|
| A Church of England church | The work of this charity is typically carried out by a professional minister, supported by a number of volunteers. Through this minister this charity tries to encourage people in the locality to have faith in a god and belief in a human soul; and to behave in accordance with a set of moral teachings in order to please God and save one's soul. The charity usually promotes congregational gatherings at which instruction in these matters is given by sermons and readings, and direct communion with and acknowledgement of God is engaged in through prayer and reverential ritual. The charity also encourages private study of its teachings and books, as well as often providing classes. A significant part of the work of the charity is the pastoral counselling by the minister of individuals considered to required help and guidance.
| The Church of England as a whole benefits form considerable investment income, however each church is also expected to support itself. People are asked to donate money at congregational services, and many services such as marriage, funeral, memorial and dedication services are subject to a fixed charge. Nearly half of regular church goers (more than 400,000) also covenant a donation of £400 a year paid by standing order.
|
| A Catholic Church | This charity operates in a similar manner to a Church of England church. The exercise of clerical office by the professional minister is known as the "cure of souls". This involves instruction by sermons and admonitions, and purification through the seven sacraments. The important sacrament of penance involves private confession of sins to the minister by a church member and absolution for those sins. As with the Church of England church, a significant part of the work of the charity is the pastoral counselling by the minister of individuals considered to require help and guidance.
| The Roman Catholic Church owns substantial investment properties from which it derives a large income. Church goers are expected to contribute money each week, usually in envelopes and by covenanted donation. Certain Masses and services are charged for, and this money is usually paid directly to the Minister for his own benefit.
|
| The Church of the Latter-day Saints (Great Britain)
| | |
| | |
| Registered no 242451 | This charity acts as the legal corporation of the Morman church in Great Britain and co-ordinates the administration of church programmes. There are no paid clergy as such, but all members of the church are encouraged to participate in church affairs. There is considerable emphasis on converting new people to a belief in God, the human soul and the teachings of the charity; and all members have to engage in full time missionary work for 2 years. Teacher development courses and leadership training are provided. Considerable personal guidance is provided to members. The principle congregational services conducted in the temple can only be attended by church members who have a temple recommend—which means that they have been accepted by the bishop as having a sufficient degree of spiritual maturity and have paid their tithes.
| The work of this charity is principally funded by followers contributing one tenth of their income as a tithe.
|
| The Society of Spiritual Development |
| |
| | |
| Registered no 292171 | Also known as The School of Meditation, the object of this charity is to advance religion by teaching people to meditate, and thereby gain spiritual insight. It runs classes, and has a weekly meeting where people can come and meditate together. Considerable individual guidance is also provided.
| Persons attending the school for the first time are asked to donate the equivalent of one week's income.
|
| The Vishwa Hindu Kendra Southall |
| |
| | |
| Registered no 262922 | The object of this charity is to advance the Hindu religion, and it provides a Hindu temple in West London. Faith in the Hindu religion is a personal and individual discipline which cannot be governed by religious bodies. Private devotions and study are most important for the individual Hindu. The temple provides a place for this to occur, as well as for communal devotions. The Hindu priest leads communal devotions, and assists in the interpretation of scriptures. A puja is a sacred ritual performed by the priest in the temple, and is considered an exact science in which the priest is trained. Pujas are carried out for the individual, and are specific to the individual based on their karma form this life and previous lives. Pujas are often performed to help with specific events in a person's life such as starting a business, or beginning a journey.
| This charity mainly funds its activity by selling pujas. A price list is provided for different types of puja. The typical price of a puja is £100, and typically a Hindu will purchase two a month.
|
| Association of Christian Counsellors |
| |
| | |
| Registered no 1018559 | This charity seeks to advance the Christian religion by being an organisation which draws together Christians involved in counselling. It encourages training in Christian Counselling, sets accrediting criteria, oversees training, recognises courses and advises agencies on training standards. It is a membership organisation, with different types of membership.
| This charity funds itself by charging its members annual membership fees.
|
| Bridge Christian Counselling Centre |
| |
| | |
| Registered no 1049962 | This charity seeks to advance the Christian religion by providing counselling services to Christians in distress, providing training in counselling and generally encouraging counselling by Christians.
| This charity funds itself by seeking donations and covenants from churches and individuals and running courses.
|
| The Buddhist Society, UK (Buddhist Society London, Limited)
| | |
| | |
| Registered no 294198 | The object of the Buddhist Society is to publish and make known the principles of Buddhism and to encourage the study and practice of those principles. The Society presents the major Buddhist Schools and traditions, and in its extensive library there are books on al Buddhist subjects. The Society sells memberships, books, cassettes and subscriptions to its magazine. The Society holds lectures, classes and activities in the Theravada, Mahayana and Vajrayana schools. Some are open to the public including an introductory course; there are also classes and lectures for members only.
| The Society solicits donations and sells memberships, books, cassettes and subscriptions to its magazine.
|
| Jain Academy | |
|
| | |
| Registered no 1018833 | The object of this charity is the advancement of the Jain religion through the establishment of an academy for the study of Jainism and the dissemination of Jain values. Its activities to date have been the establishment of Jain studies at different universities, and the setting up of Jain book libraries.
| Invites single donations from supporters of between $5,000 and $15,000, or regular donations of $251 or more.
|
| The Sternberg Centre for Judaism |
| |
| | |
| Registered no 283083 | To promote, foster and advance the study of Judaism and of the Jewish religion and way of life in all of its aspects, both religious and secular. The Sternberg Centre is a cultural centre for Reform Judaism. It publishes a magazine, operates Reform synagogues, art exhibitions, a college, libraries and museums, all covering various aspects of Judaism. It holds lectures, art classes, and other cultural events, in addition to traditional Jewish worship services on the Sabbath and on the Jewish holy days.
| Funding is from the sale of memberships, subscriptions to it magazines, college tuition, fees for the lectures, exhibitions and museum exhibits it sponsors, and temple dues for the synagogues it operates.
|
| Green Pastures Christian Centre of Healing |
| |
| | |
| Registered no 209083 | The object of this charity is to provide a home under conditions where true healing of the whole personality may take place in an atmosphere conductive to the working of the holy spirit, enabling his power and love to transform the lives of those who seek his help, and to provide for the spiritual welfare of its guests, by personal counselling where required. It owns a large property in the Dorset countryside, which has all of the facilities of a quality hotel. Guests usually stay for a few days or weeks at a time and are offered individual prayers for healing, counselling and spiritual direction. House parties and conferences are also catered for.
| A charge is made depending on the length of stay and type of accommodation. The usual single person rate is £32 per night, or £37 per night en-suite. An extra charge is made of house parties and conferences. Bargain breaks are also offered in the Spring for £100 mid week or £60 a weekend.
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