DCH 260 COMMISSION FOR RACIAL EQUALITY
COMMISSION FOR RACIAL EQUALITY
DCH 260
Francene Graham,
Committee Assistant
Joint Committee on the Draft Charities Bill
Scrutiny Unit,
Room G10,
7 Millbank,
London SW1P 3JA
July 2004
Dear Francene Graham:
RE: Call for Evidence to the Joint Committee
on the Charities Bill
Please find enclosed the Commission for Racial Equality's
submission to the Joint-Committee on the Charities Bill.
The Commissioners would be interested in presenting
oral evidence at a future session of the Joint Committee.
We wait to hear from you.
Yours sincerely
Senior Policy Officer
Race Relations
COMMISSION FOR RACIAL EQUALITY
Written Submission to the Joint Committee
on Draft Charities Bill
July 2004
COMMISSION FOR RACIAL EQUALITY
COMMENTS ON
'Draft Charities Bill'
1. INTRODUCTION
1.1 The Commission for Racial Equality (CRE)
welcomes this opportunity to submit evidence to the Joint Committee
on Draft Charities Bill.
1.2 In submitting a response we have not attempted
to address all the issues raised by the committee. Instead we
have focussed on issues we consider to have particular relevance
for the purposes of racial equality. Accordingly our response
will largely address issues surrounding the heads of charity and
public benefit.
2. THE ROLE
AND REMIT OF THE CRE
- The CRE is charged with three duties under the
Race Relations
- Act, 1976:
- working towards the elimination of racial discrimination;
- promoting equality of opportunity and good race
relations between
- persons of different racial groups generally;
- keeping under review the working of the Act
Under the Race Relations (Amendment) Act 2000 (the
Act), which came into effect on 2 April 2000, named public authorities
are subject to a general statutory duty to ensure that in
"carrying out its functions,
(to) have due regard to the need
a) to eliminate
unlawful racial discrimination
b) to promote equality of opportunity
and good relations between persons of different racial groups.
Under this specific duty set out in the Race Relations
Act 1976 (Statutory Duties) Order 2001, listed public authorities
were required to produce a Race Equality Scheme (RES) by 31 May
2002. The RES should:
set out those functions, policies
or proposed policies an authority has assessed as being relevant
for to its performance of the general duty, and
should contain details of the arrangements made for:
i) assessing and consulting on
the likely impact of proposed policies on the promotion of racial
equality
ii) monitoring its policies for
any adverse impact on the promotion of race equality.
ii,) publishing the results of
such assessments, consultations, and monitoring with respect to
the above
iv) ensuring public access to
information and services which it provides; and
v) training staff in connection
with the duties imposed by section 71(1) of the RRAA and associated
orders.
An authority must within a period of 3 years from
the 31 May 2002, and within each further period of three years,
review the assessment referred to in (i) above.
The provisions of the Act and its amendment will
be relevant to all service providers.
3. RACE EQUALITY IMPACT ASSESSMENT
3.1 The
CRE believes that it is
vital for the Home Office to carry out a proper Race Equality
Impact Assessment on the draft Bill and any proposed changes I
suggestions made by the joint committee.
4. LIST OF CHARITABLE PURPOSES
(HEADS OF CHARITY)
4.1 The CRE welcomes the proposed modernisation
of charity law through the expansion and updating of the list
of charitable purposes (heads of charity).
4.2 The CRE would like to see the inclusion of
race equality ideals within the new list. The CRE has been advocating
the advancement of an integrated society through the promotion
of good race relations I community relations.
4.3 Furthermore, we note that the promotion of
"good relations between
persons of different racial groups" has
been a public
duty since the Race Relations
Amendment Act 2000 came into
force. The CRE believes
that there is a clear public benefit in promoting good race relations.
4.4 The CRE realises that there are examples
of voluntary bodies that have aided in the promotion of good race
relations and good community relations (race, religion and belief).
Their work is vital in promoting an integrated society.
Suggested Amendment to s2(2)(e)
of the draft Charities Bill
4.5 The CRE kindly requests that the committee
consider adding the advancement of good community relations to
the existing head of citizenship and community development.
S.2(2)(e) should read:
"the advancement of citizenship,
good community relations and community development"
5. PUBLIC
BENEFIT TEST
5.1 The CRE notes that there are currently four
heads of charity: the relief of poverty; the advancement of education;
the advancement of religion; and for other purposes beneficial
to the community.
5.2 The public benefit test has two elements.
Firstly, that the purpose of the charity must be beneficial and
not detrimental to the public (the first three heads of charitable
purpose are assumed to beneficial under the current law; the fourth
'other purposes' head is not). Secondly, case law has established
that a sufficient section of the public should receive this benefit
in order for it to be considered charitable. However, different
thresholds have been established for the different heads of charity.
5.3 The CRE notes that the draft Bill intends
to alter the public benefit test.
Section 2(1) states:
"For the purposes of the
Law of England and Wales, a charitable purpose is a purpose which
—
(a) falls within subsection (2)
and
(b) is for
the public benefit"
5.4 The amended law would remove the assumption
that the original three heads of charity are of public benefit.
All heads will come under a two-stage test public benefit test.
5.5 The Joint-Committee has promised to look
at the definition of public benefit under the proposed Bill. The
current version of the Bill leaves public benefit largely undefined.
5.6 In our opinion this will leave the definition
of public benefit to the discretion of the Commission and ultimately
the courts on the basis of the law as it stands. However, case
law is scarce and decisions in existing cases (for the heads of
poverty, education and religion) may be challenged and overturned
by the Commission or the Courts. This will cause uncertainty for
existing charities whose charitable purpose lies in the first
three heads and may result unnecessary and expensive litigation
in the future.
5.7 The CRE notes that the committee is looking
at the definition of public benefit under the head of advancement
of education. We hope that the Joint-Committee will ensure that
any changes to the definition of public duty under this head of
charity do not inadvertently redefine all definitions of public
benefit for all heads of charity.
5.8 The CRE hopes that in looking at the definition
of public benefit, the Joint Committee will consider the impact
that redefining public benefit could have on good race relations.
In doing so, we realise different thresholds are needed for sufficient
benefit under different heads of charities.
5.9 The CRE hopes
that the Joint-Committee will ensure that there is a clear definition
of public benefit.
Public Benefit under the advancement
of religion head
5.10 The CRE notes that according to case law
Sikhs and Jews are defined as racial groups under the Race Relations
(Amendment) Act. Furthermore, many other ethnic minorities have
strong ties with minority faith communities e.g. the Hindu population
is almost exclusively Indian1 in background and the
majority of Muslims in this country are from ethnic minorities.
5.11 The CRE are concerned by the implications
that reconfiguring the heads of charity and redefining public
benefit on good race relations. This may have a negative impact
on minority faith communities who currently enjoy charitable status2
and therefore impact on the peaceful co existence by excluding
some and not others.
5.12 The CRE believes that any attempt to alter
the charitable status of places of worship would be contrary to
good race relations. In particular, we are concerned that any
redefinition of the term will safeguard smaller religious communities
so as not to discourage diversity in areas where there are smalier
ethnic minority communities.
Public Benefit under the advancement
of education head
5.13 The CRE notes that the Joint Committee will
be looking specifically at the charitable status of independent
schools.
5.14 The CRE wishes the Joint-Committee to consider
the impact this change will have on independent faith schools.
Currently there are a low number of state-funded faith schools
for Muslims, Sikhs and Hindus in comparison to Christian faith
schools. This lack of provision is in part made up through private
education establishments. This change is likely to have a disproportionate
effect on minority faith communities.
6. CONCLUSION
6.1 The CRE wishes to see the Home Office produce
a Race Impact Assessment on the draft Bill and any proposed revisions
to the Bill by the Joint-Committee.
6.2 The CRE is asking the Joint Committee to
make the following considerations:
a. To make a race equality impact assessment
on the proposed Bill.
b. To make a race equality impact assessment
on any proposed changes to the Bill.
c. To consider expanding the head of charity
at s2(2)(e) to
read ""the
advancement of citizenship, good community
relations and community development"
Source: 2001 Census -
84% of those defining themselves as Hindus
also defined themselves as Indian. The majority of others describe
themselves as coming from a mixed background.
2 Neville Estates
Ltd v Madden (1962)
d. To ensure a clear definition of public benefit
in order to prevent existing charitable causes facing unnecessary
and expensive litigation.
e. To uphold the current public benefit test
for religion in order to safeguard the existence of religious
communities made up from ethnic minorities. In particular, we
are concerned that smaller religious communities should remain
unaffected by this Bill.
f. To consider allowing minority faith schools
to operate as charitable institutions and exempt them from any
decision to strip charitable status from independent schools
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