DCH 304 National Secular Society
25 Red Lion Square, London WC1R 4RL
Telephone/Fax (020) 7404 3126
email kpw@secularism.org.uk website www.secularism.org.uk
Executive Director: Keith Porteous Wood,
FCCA
Submission to the Joint Committee of Parliament
on the Draft Charities Bill
July 2004
1. The Nature of this Submission
It its press notice dated 27 May 2004, the Joint Committee
stated that it would be concentrating its inquiry on a number
of specified themes. It is principally to number 3 that these
submissions are directed, namely: "Are the 12 new charitable
purposes the draft Bill proposes for a charity satisfactory --
should there be additions or deletions? Is the phrase 'public
benefit' best left undefined in the Bill? "
2. The National Secular Society
a. ("NSS") was founded in 1866
by Charles Bradlaugh MP. Among its fundamental principles are
the following:
Secularism affirms that this life is the only
one of which we have any knowledge and human effort should be
directed wholly towards its improvement.
Affirming that morality is social in origin
and application, Secularism aims at promoting the happiness and
well-being of mankind.
Secularism demands the complete separation
of Church and State and the abolition of all privileges granted
to religious organisations.
b. The NSS is a campaigning organisation. Among
its formal objects are:
To promote a secular system of education.
To originate, to watch over or to petition
Parliament in relation to measures pertaining to the principles
and objects of the Society.
To initiate, organise and participate in campaigns
for such reforms in the law as, in the view of the Society, would
promote human welfare and enhance the quality of life.
c. The NSS has pursued these objects vigorously
since its foundation in 1866.
3. The NSS and Charity.
The NSS does not have charitable status, but an associated
organisation with similar aims did once apply for that status.
It was refused in the celebrated case of Bowman v. Secular
Society Ltd. [1917] A.C. 406 on the grounds that
"The abolition of religious tests, the
disestablishment of the Church, the secularisation of education,
the alteration of the law touching religion or marriage, or the
observation of the Sabbath, are purely political objects. Equity
has always refused to recognise such objects as charitable."
4. The Submission
a. The NSS welcomes the attempt made to rationalise
and modernise the law of charities the definition of further specific
categories of charitable purposes in clause 2(2) of the draft
bill and
-- particularly paragraphs (e) (citizenship or community development),
(f) (arts, heritage or science), (h) (human rights, conflict resolution
or reconciliation), and (i) (environmental protection or improvement).
So far as concerns (h), the NSS submits that it would be useful
to make it clear that "human rights" should be construed
for this purpose to embrace all those rights enumerated
in the European Convention of Human Rights and all activity directed
against the absolute or relative disadvantage of citizens.
b. Charitable Purposes
The NSS takes no issue with the inclusion of
(b) -- "the advancement of religion" but it regrets
that as it is at present drafted it perpetuates the privileged
position which theistic world-views have enjoyed under the law
of England & Wales. It is submitted that a modern state should
be neutral upon the subject of its citizens' beliefs, and not
take sides on behalf of those who favour one view over another.
This equivalence is recognised in relation to education in the
Human Rights Act. Yet the present position (unchanged if the draft
bill becomes law) is that those who hold certain beliefs may enjoy
tax privileges while propagating them, while those who hold other
beliefs, equally intellectually respectable and equally socially
responsible, have no such privileges. As a matter of illustration,
it seems that (subject of course to satisfying the requirement
of public benefit), voodooism would probably qualify under the
"advancement of religion" test, but that a secularist
or humanist organisation, if it is to qualify for charitable status,
must seek to press its claims under some other head. This has
led to absurd legalistic convolutions in the past and it is submitted
that it is in any event in principle wrong that the state should
favour one belief system over another.
The present paragraph (b) will (as it has in the past) lead to
arguments in the courts about what constitutes "religion".
Such arguments are fruitless and unnecessary: theology should
be left to clerics, it is not a suitable subject-matter for lawyers,
or indeed the courts.
c. It is submitted that the matter can be
dealt with either by re-drafting paragraph (b) or by adding a
further paragraph to clause 2(2). A possible re-drafted paragraph
(b) could read "the advancement of religion or other systems
or philosophies of belief or ethics"; a further paragraph
might read "the advancement of systems or philosophies of
belief or ethics." There is, it is submitted, no danger
that such a provision might open the door to frivolous applications
or unworthy organisations: all applications would still have
to satisfy the test of public benefit, since the presumption of
public benefit is abolished by clause 3(2). In support of this
submission, the committee is reminded that Article 9 of the European
Convention speaks of religion or belief (our emphasis). There
must be a danger that paragraph (b) of clause 2(2) of the Bill
will be found to be contrary to the Convention if it remains as
at present drafted. The Committee is also reminded that in the
recent White Paper "Fairness For All: A New Commission
for Equality and Human Rights"(Cm.6185) there
are references to "people of different religions or beliefs
(including those who do not have a religion or belief)"
d. Public Benefit
It is submitted that a statutory definition of
"public benefit" would be useful. There is a lack of
certainty in the present law, which has been made by the judges
rather than parliament. A very few examples:
in a faith healing movement of a religious nature
a sufficient element of public benefit to render it charitable
was presumed, or alternatively faith healing had become a recognised
activity of public benefit (Funnel v. Stewart [1996] 1WLR
288);
"gifts for the saying of Masses were prima
facie charitable; there was a sufficient element of public benefit
as long as all the Masses were said in public ... (in Re Hetherington
[1989 2WLR 1094);
a trust "for the advancement and propagation
of the teaching of socialised medicine" was not for the public
benefit since it was political in nature (In re Bushnell [1975]
1WLR 1596);
on the other hand, a bequest to an expensive
private hospital was charitable (Resch's Will Trusts [1968]
3WLR 1153).
It is submitted that it is for Parliament, not
the judges, to say what is to the benefit of the public and that
it is time to attempt a simple and accessible definition . One
such might run along these lines: "an activity which may
reasonably be expected to lead to the physical, mental or ethical
improvement of a substantial number of people, and from which
no member of the public is excluded by reason of gender, race,
sexual orientation, or lack of means."
e. "Political purposes"
The draft Bill says nothing about to what extent
a charity may engage in campaigning activities. It has always
been the law that attempts to change the law are "political"
and therefore not charitable. This is, however, clearly no longer
the practice, and this is recognized by the Charity Commissioners,
who have latterly taken a far more liberal view upon the subject:
"'By the very nature of their knowledge and social concern,
… some charities are well placed to play a part in public
debate on important issues of the day and to make an important
contribution to the development of public policy. Others will
invariably be drawn into such debate. It would be wrong to think
that this cannot and should not happen: it is open to charities
to engage in campaigning activities" (Charities Commission
publication). The Charities Commissioners say that their
view is a representation of the current state of the law. If
that is indeed the case, then it would be helpful if it were placed
on a statutory basis.
It is therefore submitted that the views of the Charities Commission,
as represented by their publication attached to this submission,
should be made law, so that it is entirely clear how far charities
can engage in campaigning and political activities.
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