DCH 338 Religions Working Together (Supplementary)
NOTE ON THE DIFFICULTIES
POSED TO PARTICULAR RELIGIOUS CHARITIES BY THE DRAFT CHARITIES
BILL
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.
Table
Religious denomination
|
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.
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