DCH 296 Draft commentary on charity
reform and equal opportunities
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EQUAL OPPORTUNITIES AND CHARITY REFORM
1. Introduction
In this paper we will argue that the government's
current programme for reform of charities is seriously flawed
in one crucial respect: equal opportunities.
The ongoing, rolling review of charities has the
aim of re-defining, where necessary, the types of organisations
eligible for charitable status. Unfortunately in drafting these
new definitions, the issue of equality is being overlooked. In
our view, equal opportunities are important because they impact
on the way in which charities administer themselves and carry
out their activities.
The generally accepted definition of a charity is
that it is an organisation which acts for the public benefit.
We agree with this, but we also believe that our society has progressed
to a point where it is no longer possible for organisations, with
some limited exceptions, to act for the public benefit unless
they introduce and implement adequate equal opportunities policies
for their staff and the recipients of their services.
In the recent past, and especially during the last
four decades, there has been a major social shift towards equality.
Notably, opportunities to participate fully and equally in our
society now extend to a much greater range of people. Minority
communities and women have made substantial gains. However, we
assert that in this area there is now conflict between the norms
governing some charitable organisations and those prevalent across
the rest of society.
The shared and accepted public conception of charities
is that they perform good acts; that their actions are laudable
from the point of view of the rest of the community. It can be
argued that the tax and other benefits that accrue to charities
are a recognition that their activities are morally and socially
desirable, and that these benefits are given to charities precisely
in order to facilitate those activities.
We assert that it is not possible for charities to
act for the public good if they are not fully inclusive organisations,
with regard to equal opportunities for their staff and the recipients
of their services. Our assertion is based on two arguments. The
first is the old ethical argument concerning means and ends: a
good action is tarnished by bad means. Second, changes in social
values mean it is no longer morally acceptable for the wider community
to facilitate the operations of organisations which do not have
equal opportunities policies. Recent changes in broader legislation,
notably at European level, have clearly indicated the extent to
which the charitable sector is lagging behind the rest of society.
Charitable status is a privilege, not a right. With
this privilege comes certain responsibilities, one of which is
the responsibility to conform to minimum standards of socially
accepted public good and benefit. These minimum standards should
now be extended to include a responsibility to pursue equal opportunities
policies.
It is important to recognise that many charities
lay great emphasis upon equal opportunities. Indeed, some of them
have been set up specifically to promote the welfare of disadvantaged
groups.
Nevertheless, in some quarters our contention will
be controversial. It is traditional for religious institutions
to possess charitable status despite the fact that many of them
are not equal opportunities employers. Moreover Britain is now
more visibly multi-cultural than ever before and much greater
efforts are being made to accommodate the diversity of different
communities. This can result in clashes between human rights and
liberal values, which include equal opportunities for all, and
religious and cultural values held by some ethnic groups.
While we support social acceptance and equal treatment
for all sections of society, including acceptance of racial and
religious minorities, we oppose the continued privileging of institutions
which do not operate equal opportunities. These positions are
compatible because we are not proposing that charitable institutions
rejecting equal opportunities practices should be closed down;
merely that they should be denied their charitable status. Where
they are providing important services it might be possible for
the state to support them in other ways which do not give them
the privileged status accorded to charities. As for new charities,
we think they should be
in step with prevailing social norms, which means
accepting equal opportunities for all.
2. The Charity Commission's review of the Register
of Charities
The government institution which administers charities
is the Charity Commission. The Commission supervises the Register
of Charities for England and Wales. Its work on redefinition of
charities started in 1999, and is a rolling programme without
a timetable. It is looking at particular areas of charitable activities
to determine whether these activities can continue to be considered
to be charitable, and whether there is scope to develop the boundaries
of charitable status.
The Commission has stated that, 'the understanding
of what is legally charitable has continued to evolve since the
Register was first created over 35 years ago'.1[79]
It goes on to say that, 'there are almost certainly organisations
on the Register which most people would not now regard as charitable
and organisations not on it that perhaps they might.' 2[80]
The Commission's approach is to re-appraise the legal
rules which determine whether a particular type of organisation
is charitable. These are mainly laid down by case law rather than
statute. While acknowledging this, the Commission has also stated
that, presumably partly with regard to new areas of activity,
'There may not always appear to be any direct court precedent.
We then have to decide (using fundamental legal principles) whether
solutions to problems thrown up by changing social needs are legally
charitable in the same sense as those already accepted by ourselves
and the courts.' 3[81]
In respect of existing areas of charitable activities
it states that, 'We must also consider whether the courts of today
would or would not follow a decision made many years ago and in
different circumstances.' 4
And it says that, more generally, 'We also look generically at
issues or types of organisations.'5 Later
it states that, 'The courts develop charity law to keep the law's
view of what is charitable reasonably in line with modern social
needs and conditions. Thus the legal concept of charity alters;
and its evolution is influenced by ideas about social values'.6
Most importantly it states three conditions which
can bring about change: 'In reaching decisions generally on matters
of public benefit the courts, and the Commission, have proper
regard to public opinion in so far as it represents: a general
consensus; or people's views on what should as a matter or ethics
be regarded as beneficial; or a common understanding of informed
opinion.' 7 It is important
to state that the Commission's three conditions are not an exhaustive
list of possible legal drivers of change; nonetheless, it is certainly
sufficient so far as the Commission is concerned.
3. Parliamentary action
We believe that our proposals satisfy these three
conditions for changing the rules of charitable status, as we
explain in the sections which follow. Before doing so, it is important
to point out that the Charity Commission does not have the power
to alter the law beyond the flexibility which is implied by the
decisions of the courts. Other changes need to be made by the
higher courts or Parliament.
It is possible that if the Charity Commission wished
to improve equal opportunity compliance in charities it could
do so by saying that adoption and implementation of suitable equal
opportunities policies (ie with appropriate exclusions) is evidence
that an organisation has been established for the public benefit
(see Appendix Three - Relevant Legal Considerations). We would,
of course, wish to see such adoption and implementation as a prerequisite
for a favourable public benefit assessment.
However if the Commission cannot re-evaluate case
law in such a way as to ensure that definitions of charitable
activities encompass equal opportunities, then we believe that
the government should initiate appropriate primary legislation.
In the following sections of this commentary we will deal with
the Charity Commission's three conditions for changing the law.
It is important to state that the Commission's three conditions
are not an exhaustive list; nonetheless, they are certainly sufficient
so far as the Commission is concerned.
4. The ethical argument: means and ends
The ethical imperative concerns means and ends. We
assert that the means by which a charity achieves its ends take
place in an ethical context which is as important as the ethical
context of its goals, and that means and ends are ethically inextricable.
The values of our society have changed to the point where it is
no longer possible for an organisation to act for the public benefit
if it discriminates against particular sections of the community
in its employment practices and service delivery.
If, for example, a charitable organisation was involved
in the running of schools, yet did not allow women or lesbians
and gay men to become teachers, then its students would be presented
with a model of a community that was discriminatory and divisive.
This would not be beneficial to their welfare and development,
especially if some of these students were themselves women or
homosexuals. They might perceive this exclusion as a devaluation
of their own gender and sexuality. In addition, of course, such
discrimination would not benefit the prospective women, gay and
lesbian teachers who were barred from employment with that charity.
In this context the general trend towards faith schools should
be mentioned; it is dealt with further elsewhere in this paper
(see Section 12).
The direct good that such a charity would do in terms
of educational benefit needs to be weighed against its presentation
of a discriminatory model of society. The role of charities in
education is bound to become an increasingly important issue,
given that the government has signalled its desire for more church
schools, and since faith communities, especially the Church of
England, have announced plans for a significant expansion of religious-based
educational institutions.
We accept that there can be strong arguments in favour
of allowing some organisations with discriminatory practices to
continue to have charitable status. For example, in certain deprived
inner city areas some charities might fill a gap in state educational
provision and removal of charitable benefits would have an adverse
impact on the communities they serve.
Our response to that situation is that deficiencies
in public educational provision are regrettable, but that it would
be further cause for regret to compound this problem by exposing
young people to discriminatory models of society. If the loss
of charitable status created financial difficulties, it might
be possible for the state to extend support to such an organisation
in other ways for a limited transitional period. This would give
the offending charity a period of time either to adapt to equal
opportunities or to establish alternative source of funding to
fill the monetary void created by the loss of charitable status.
Such transitional relief might be via interim direct grant funding,
if there was a legitimate case for short term support.
With regard to these particular circumstances: religious
organisations have often provided educational and other welfare
services. This might be commendable when the values of such organisations
are consistent with those of the rest of society. When they are
not, however, they lose their legitimacy and worthiness in the
eyes of most people.
Taking a broader perspective and looking to the future,
there is a trend towards localisation and devolution away from
government in service provision - increasingly on a contract basis
with private and voluntary sector organisations, including charities.
Many services that have been provided by government in the past
are now delivered by charities. Children's charities, for example,
provide statutory child protection social services under contract.
Some of these charities are to a greater or lesser degree enclosed
communities whose main contact with the wider community comes
through service provision, for example, closed religious communities
which run schools. A significant number of charitable organisations
function to remedy the inadequacy of state provision, as has been
the case with many charities working in the fields of HIV, animal
welfare, refugees and the elderly and disabled. These client-focused
and client influenced charities are often more aware and responsive
to the needs of the people they serve than remote, bureaucratic
and unaccountable state institutions. By and large a vision of
society which involves a diversity of communities and service
providers can only be seen as positive, both in its own right
and as an acknowledgement that a state monopoly on the provision
of services can be unreliable, and that the state is not always
the best or most appropriate provider of particular services.
Be that as it may, there can be a conflict between
the need to have equal opportunities policies in place across
society generally, and the desire to incorporate different communities
with different social practices into that wider society. While
we accept that there should be flexibility, the fundamental human
right not to be discriminated against on the basis of race, gender,
disability, sexuality and other grounds is not negotiable.
5. A general consensus on equal opportunities
We believe that the climate of public opinion on
equal opportunities has changed over the past four decades and
that legislation affecting charities is now out of step. Our evidence
for a general consensus on the desirability of equal opportunities
policies for charities lies in recent changes in the law and in
employment practices by major employers, which reflect underlying
agreement and pressure for change across all sections of society.
While the laws on equal opportunities are still imperfect,
they are being progressively - if rather too slowly - challenged
and changed. Equal opportunities legislation relating to gender
in the Sex Discrimination Act 1975 excludes certain types of charitable
organisations, specifically religious institutions. However, in
recent years, the largest religious institution in the UK, the
Church of England, has admitted women to its priesthood, giving
them greater parity within its organisation. It now also allows
celibate gays and lesbians into the priesthood, though not those
in same sex relationships. These changes are symptomatic of a
long-term trend towards equality and an ever-strengthening consensus
that discrimination is unacceptable.
Progress towards lesbian and gay human rights is
indicative of the new consensus for equality. Homosexual relations
between consenting adults in private were partly decriminalised
in 1967. In the past three decades, moves to allow gay men and
lesbians to participate equally in all areas of life have gathered
momentum, both in the UK and abroad. Following litigation in the
European Court of Human Rights lesbians and gay men can now serve
in the UK armed forces, and legislation has equalised the age
of consent between heterosexuals and homosexuals. Immigration
rules have been eased to grant residence in the UK to the foreign
partners of British lesbians and gay men after two years cohabitation.
The government is preparing a code of practice advising (but not
compelling) employers to avoid discrimination on the basis of
sexual orientation. As a result of a European Union Directive,
arising from Article 13 of the Treaty of Amsterdam, combating
discrimination, the UK government will be required to outlaw discrimination
against lesbians and gay men in the workplace by the year 2003.
Under the Human Rights Act 1998, the ban on discrimination on
'any ground' has, since the Act came into force in October 2000,
created a new legal instrument which may, in future, result in
other instances of the denial of equal treatment based on a person's
sexuality being declared illegal.
Increasingly major public and private employers are
implementing employment policies which are more progressive than
those laid down by the law. Many local authorities have comprehensive
equal opportunities policies for their staff, and also sometimes
insist on their adoption by many of their contractors. This has
affected charities. The frequency with which they are retained
by local authorities for the provision of particular services
has risen dramatically over the past decade, marking a new era
for voluntary sector organisations - the advent of the 'contract
culture'. Such contracts often stipulate that a service provider
be an equal opportunity employer.
Similarly, a large number of leading corporations
now have equal opportunities policies in place. Some of the impetus
behind this has come from the US, where such policies have been
put in place by multinationals based there and subsequently adopted
by their divisions in the UK.
The Government itself has endorsed equal opportunities
within charities. In 1999 it published its Compact concerning
relations between the Government and the voluntary and community
sector. A very high proportion of charities are voluntary and
community sector organisations (though a substantial number of
these organisations are not charities). The Compact is not a legally
binding document, but it possesses authority by virtue of its
endorsement by Government and by the voluntary and community sector
through a consultation process.
The Compact explicitly states: 'Both Government and
the voluntary and community sector acknowledge the importance
of promoting equality of opportunity for all people, regardless
of race, age, disability, gender, sexual orientation or religion.'8
We assert that all these changes in values, attitudes, laws and
policies reflect a strong underlying climate of opinion that is
moving towards full acceptance of all minority groups in all aspects
of social and community life. This includes acceptance of comprehensive
equal opportunities policies by most employers. Exemptions for
particular kinds of institutions are now generally regarded as
unacceptable.
We believe that there is an interplay or dynamic
between changes in legislation, changes in employment practices
by major employers, new voluntary codes of employment practice
and public consensus. To ensure acceptance and respect, any change
in human rights legislation must be based, at least, in part on
a shift in public attitudes. That legislation itself then creates
a platform for further debate and change. The process of discussing
and securing law reform thus often alters public perceptions and
mores, producing further pressure for more advanced legislation
on the issue. The Sex Discrimination Act has, for example, recently
been interpreted to incorporate employment rights for transsexuals.
Further, if one civil liberties issue has been legislated
for effectively, impetus for change can accelerate in related
areas. Some reforms relating to gay and lesbian rights can be
seen in this way. Campaigners took note of policy changes relating
to employment rights for women and black people, and have pressed
for comparable equal opportunities for lesbians and gay men in
particular areas, such as the Church of England and the armed
forces. Such campaigning can be effective only if there is a general
consensus backing change.
6 Equal opportunities as a social and political trend
We believe that the increasing implementation of
equal opportunities by charities is part of an wider irreversible
trend that is one of the two main unifying strands of social and
political progress in the UK from the late 19th century onwards.
The other has been the expansion of the role of the state over
the last hundred years or so.
The welfare state grew through the twentieth century,
with the biggest leap after the Second World War. The National
Health Service, increased public housing and extensions of higher
education are some of its core achievements. The ideology driving
this widening of social rights and provision is sometimes seen
as liberal, resulting from a tacit social contract between the
ruling elite and the working poor to give the latter a better
quality of life in return for its labour. It has also been perceived
as socialist, with a more equitable division of social resources
being advocated as an intrinsically desirable policy goal.
Since the beginning of the 1980's, however, the state's
role in society has been checked and partially reversed, mainly
in the industrial sector. Conversely, equal opportunities policies
have been greatly expanded over the past decade, often on the
initiative of central and local government. While economically,
and in many other ways, the state has recently become less interventionist,
on equal opportunities it has become more so.
Several other European countries are ahead of the
UK in legislating on important equality issues, such as rights
for women and unmarried partners, and employment protection for
homosexuals and senior citizens. It is extremely unlikely that
we will not follow their lead. The question is 'when?' rather
than 'whether?'. In this context, we assert that equal opportunities
policies for charities are also inevitable, and that they should
be put in place sooner rather than later.
7. A common understanding of informed opinion.
We assert that the majority of public opinion and
social institutions now endorse the principle of comprehensive
equal opportunities. This conclusion is partly based on clarification
of what is meant by 'common understanding' and 'informed opinion'.
Taking 'common understanding' first: 'common' means
belonging to a large or majority group, and 'understanding' means,
in this context, an interpretation of a phenomenon or subject
matter. In other words, how something is generally interpreted
and perceived.
'Informed opinion' can be taken to mean a group which
possesses intelligence and which has educated itself about a particular
subject. This generally emanates from professional people or experts,
or from individuals who have studied a particular subject closely.
Often, but not always, they may be attached to an institution
or set of institutions that specialises in a particular issue.
In this instance, 'informed opinion' refers to a group of people
who have studied the issue of the impact of equal opportunities
on organisations, including charities and other voluntary sector
bodies.
Applying these definitions to equal opportunities,
we believe that we have set out sufficient evidence in this paper
to support a conclusion that there is a common understanding that
most informed opinion supports universal equal opportunities in
all sectors of society and across all institutions.8[82]
8. Withdrawal of charitable status
Charitable status should therefore be withdrawn from
most organisations which do not operate fully inclusive equal
opportunities policies. The state should not grant charitable
status, which we argue is a privilege and not a right, to organisations
that are not equal opportunities employers and service providers.
It must not tacitly condone discrimination by continuing to reward
such organisations with tax and other benefits; nor tacitly condone
their discrimination by continuing to extend charitable status
to them.
This would mean a change in the focus of charity
law. At present withdrawal of charitable status is not a potential
punishment in cases of wrong doing. Currently the Charity Commission
and/or the courts can order a charity's trustees to implement
particular measures; if they refuse they will generally be sidelined
by the appointment of a receiver and manager and/or replaced by
new trustees. In our view, the best approach for the government
is to introduce withdrawal of charitable status as a sanction,
but also to retain the option to sideline trustees. The precise
remedial action to be applied to particular charities could be
determined on a case by case basis.
9 Continued religious toleration
While we are advocating that charitable status should
be withheld from charities which are not committed to equal opportunities,
we are not advocating that organisations should be coerced into
changing their practices.
Our proposed change is a 'soft' piece of legislation
insofar as it does not directly force organisations to change
the way they operate. It is an encouragement to voluntary sector
and not-for-profit organisations to adopt a fair and just policies.
Some of the organisations affected will be religious
institutions. One of the key classifications of charities comes
from the list of purposes which were laid down by Lord Macnaghten
in 1891, in the case of Income Tax Special Purpose Commissioners
v Pemsel: the advancement of religion. We see no reason why this
cannot continue to be a classification, as long as religion is
advanced by organisations that operate equal opportunities practices.
We do not believe that, as a group, charitable religious institutions
can any longer consider themselves to be exempt from equal opportunities.
We realise that traditionalist supporters of religious
institutions will not support this view, but we believe that their
position is no longer sustainable: social change has left them
out of step with the wider community in ways that make continued
charitable status for their organisations detrimental to that
wider community.
Having said this, we do not think that the state
should forbid faith institutions from adopting consensual organisational
practices which may be at variance with the broader social consensus
in favour of equal opportunities (although we hope that in time
these faith institutions will embrace the general social movement
towards the equal treatment of all people).
Britain has a strong tradition of religious toleration
and we believe that the benefits of this tradition outweigh its
costs. The freedom to select the faith institutions of choice
and create organisations based on a system of faith remains an
important civil liberty.
10. Racially distinct organisations
Racially distinct organisations present another,
related, set of issues and possible legitimate exemptions from
equal opportunities. It might be that an organisation is exclusively
Afro-Caribbean, for example, and confines its staff and membership
to members of that ethnic group with the aim of empowering members
of its community. An absence of equal opportunities in a racially
distinct organisation may be necessary to overcome disadvantage
experienced by members of the black community, and may therefore
serve the public good by remedying social exclusion.
Some of the exceptions for equal opportunities policy
listed below from the Race Relations Act 1968 are relevant here.
One is for associations whose main object is to enable the benefits
of membership to be enjoyed by members of a particular racial
group, as long as there is not discrimination on the basis of
colour. Others relate to the special needs of racial groups with
regard to education, training or welfare. We agree that positive
discrimination with regard to race can be ethically defensible
and socially beneficial in these contexts, but we do not think
that such discrimination can be used as justification by a charity
to then further discriminate on the basis of religion, sexuality
and other grounds unrelated to its core objectives. In those circumstances
we think that the organisation should not be entitled to its charitable
status.
11. Exemptions in order to combat discrimination
This section deals with exemptions for the purpose
of overcoming disadvantage. The example of the Afro-Caribbean
organisation operating a racially distinct policy with the objective
of combating racial exclusion and disadvantage exemplifies a range
of organisations that could be legitimately exempt from equal
opportunity policies without losing their charitable status. In
a similar vein, charities dedicated to overcoming the marginalisation
and discrimination experienced by elderly people, the disabled,
travellers, ex-prisoners, lesbians and gay men and other social
groups suffering discrimination may, in certain circumstances,
be justifiably excluded from a loss of charitable status if their
lack of a fully inclusive equal opportunities policy can be demonstrated
to be necessary in order to remedy disadvantage. A Gay Helpline
could reasonably argue that employing gay staff only and offering
advice and counselling exclusively to gay people was necessary
to deal with the specific needs and welfare of isolated and vulnerable
homosexual men and women. Likewise, a charity dedicated to the
promotion of women in sport could make a justified case for restricting
its recruitment and services to women on the grounds that its
female-exclusive policies were needed to counteract male bias
and advantage in sport. In similar specific situations, where
the effect of the organisation's policies to overcome disadvantage
and promote welfare, the absence of an equal opportunities policy
should not, in our view, lead to a loss of charitable status.
12. The scope of the proposal
No statistics are collated relating to charities
which do not operate equal opportunities policies. However, it
is likely that they fall into two main groups. The first group
is among small charities. Two thirds of the UK's 190,000 charities
have an annual income of less than £10,000. A very high proportion
of these are unlikely to possess an equal opportunities policy.
Having said this, it is also true to say that a substantial proportion
of these small charities are unlikely to have any paid staff.
For an estimate of the impact of our proposals on total charity
income, see appendix one.
In section 13 below we deal with possible exemptions
to an equal opportunities policy for charities and note that exemptions
on the basis of size, with some practical exceptions, are absent
from both sex and race discrimination statutes.
The other main group of charities without comprehensive
equal opportunities policies are faith organisations. One of the
largest relevant employment sectors is education: approximately
one third of all schools in the UK operate recruitment policies
which favour, at least nominally, practising Christians and practising
members of other faiths.
These schools fall into two categories: voluntary
aided schools and voluntarily controlled schools. In voluntary
aided schools the appointment of the majority of the board of
governors can be controlled by religious institutions and they
can also discriminate in the employment of all of the schools'
teachers. In voluntarily controlled schools a proportion only
of staff posts are meant to be filled by practising members of
the relevant faith.
In practice, at present, teachers shortages mean
that it can be difficult for schools to discriminate. Yet the
numbers of schools which fall into the above two categories are
large: the Church of England alone, ignoring Catholic and Jewish
controlled schools, controls nearly 5,000 schools. Anglican leaders
have announced plans for a further 160 church schools, and this
expansion has the endorsement of the government. Service provision
by faith organisations provision goes beyond education. Religious
charities frequently discriminate against women and homosexuals,
as well as men who are not members of their faiths. A significant
number of charities controlled by evangelical Christian groups
discriminate in employment in this way. Examples include the Tear
Fund, an overseas development charity, and various social welfare
charities controlled by the Church of Scotland.
There are now calls to also make religious organisations
major providers of state-funded care and welfare. Both Labour
and the Conservatives favour growth in such activities by faith-based
organisations in the UK. 10
(See appendix four for specific examples of discrimination by
charities.)
13. Exemptions to equal opportunities policies
We are not proposing to draft a detailed equal opportunities
policy for charitable organisations. We simply assert the main
guiding principle of such a policy: charities should not discriminate
on the basis of race, gender, sexuality, opinion or belief, age,
disability or any other grounds. In other words, the policy should
be comprehensive and inclusive, ensuring universal non-discrimination.
We are mindful of problems which have arisen in the
past when policies have been badly drafted and misapplied. Some
examples of this occurred in certain local authorities during
the 1980s, when poor equal opportunities policies operated to
the detriment of both staff and recipients of services.
The prime exemptions from equal opportunity policies
should be similar, where relevant, to those contained in the main
extant legislation relating to equal opportunities: The Race Relations
Act 1968, the Sex Discrimination Act 1975 and the Disability Discrimination
Act 1995.
In brief, the exemptions we propose are:
(i) Where employment necessitates being of a particular
social group as a genuine occupational qualification.
(ii) Where a dramatic, entertainment, modelling,
food or drink job requires a person from a particular social group
for reasons of authenticity; where the job holder provides persons
of a particular social group with personal services promoting
their welfare; and where those services can most effectively be
provided by a person of that social group.
(iii) Where a particular social group has special
needs with regard to education, training or welfare, and the policy
has the effect of helping to overcome discrimination and disadvantage.
(iv) Where the nature of a job requires the employment
of a person of a particular sex to preserve privacy and decency;
is based in a private home and would lead to physical or social
contact with or knowledge of intimate details of someone living
there.
(v) Where employment requires living in single sex
accommodation or is based in a single sex establishment.
It is noteworthy that neither the sex nor race discrimination
statutes contain exceptions relating to the size of an organisation,
though there are some practical concessions. The Race Relations
Act has exceptions in respect of small dwellings11[83]
while the Sex Discrimination Act has a Genuine Occupational Qualification
relating to work in a private home.12[84]
The Disability Discrimination Act does have a key exemption with
regard to organisations employing less than fifteen people13[85]
but we do not think that the practical grounds
for this exemption provide any basis for applying this to able-bodied
charity employees.
It follows from the existing consensus on sex and
race discrimination laws that, in addition to the five main grounds
for exemption listed above, there should not be any further exemptions
from equal opportunities for charities, unless they relate to
small dwellings or private homes in similar contexts to the relevant
exceptions in those two laws.
14. Implementation
Clearly, implementation of these measures needs to
ensure that detriment to charity staff and beneficiaries is minimised.
We propose that there should be a transitional period of 18 months
to enable service providers whose charitable status is withdrawn
to replace the lost tax breaks with alternative funding. In the
case of a charity serving the health or education needs of a deprived
community the financial loss involved in losing charitable status
could adversely impact on its service provision to the detriment
of those affected. As well as delaying the charity's loss of charitable
status by 18 months, in exceptional circumstances of demonstrable
public need and benefit the government could provide additional
transitional funding for a limited period of up to five years.
Furthermore, in particular cases where charities are providing
essential services the existing option of sidelining trustees
could be followed as detailed in Section 8 above.
15. Conclusion
An anomalous situation has arisen. Our society sets
charitable organisations apart by giving them a special status
and set of privileges, some of them financial. These are rewards
for the way those organisations benefit society. In turn, their
status and privileges enhance their image among the public.
Yet society's core values on equality issues have
now shifted in ways that are at variance with the policies of
some charities. Although it is possible to see the activities
of nearly all charities as being wholly commendable, the same
can no longer - if it ever could - be said about the way in which
some of them carry out those activities. In particular, the discriminatory
employment and service delivery policies which some operate are
at odds with the new social consensus in favour of equal opportunities.
Equality of opportunity ought to be an essential
requirement of all charities - in the same way it is now a taken-for-granted
component of the modus operandi of most other responsible, civic-minded
organisations. This is because non-discrimination is an ethical
imperative in a multicultural society, and because equality has
become a fundamental tenet of modern democracies - supported by
public opinion and enshrined in UK and EU law.
The absence of equal opportunities in some charitable
organisations and their lack of conformity to the contemporary
consensus against discrimination is made all the more untenable
by the elevated legal position and financial benefits they have
been given.
It is no longer possible to claim with any credibility
that charities are acting for the public good and providing public
benefit if they do not ensure equal opportunities for their employees
and the recipients of their services.
Charitable status is a privilege not a right. This
privilege involves certain responsibilities, including the pursuit
of equal opportunities. It therefore follows that charities continuing
to discriminate do not fulfil the charitable criterion of promoting
social good. While they should not be closed down, we believe
they should lose the privilege of charitable status. Anything
less would suggest social approval for their policies of discrimination
and exclusion.
Appendix one: Charity Statistics and the impact of
the policy
According to Charity Commission statistics, at the
end of 1999 there were approximated 190,000 registered charities
in England and Wales. Around 27,000 were subsidiaries of other
charities, which means that there is a total of about 163,000
'main' charities.
According to the Charity Commission's register, the
aggregate annual income of all registered charities was approximately
£24 billion. The distribution of income across charities
is very uneven: two thirds of registered charities have an annual
income of £10,000 or less but they account for under 2% of
total registered charity income. Around 5% of charities receive
90% of the £24 billion in charitable income; and the largest
300 charities receive around 43% of it.
It is difficult to estimate the amounts charities
which do not operate equal opportunities practices would lose
if their tax free status was taken away. Amounts which became
payable due to corporation tax, income tax, capital gains tax
and council tax might be compensated for in part or in full, paradoxically,
by VAT on inputs which would then become recoverable.
The current rate of corporation tax is 30%. Assuming
charities were to be taxed on the same basis as commercial organisations,
it is reasonable to assume that they would lose up to 30% of their
income, when factors such as capital allowances are taken into
account. However, it is important to bear in mind the various
allowances, set offs and concessions available to such organisations
reduce their tax burdens considerably.
The tax impact on the loss of charitable status would
depend on the type of income accruing to the body. A service-providing
charity that derived the bulk of its income from charging for
those services would be taxable on the profits of that trade.
Assuming that it only aims to break-even, there may not be any
profits to tax. Tax would, however, become liable on investment
income and capital gains. Rates of tax would depend on the amount
of taxable income and gains and whether the body is subject to
corporation or income tax.
If the tax status of a charity were to change a key
issue is that of how tax would be calculated. Certain types of
income might be treated differently. Donations might be taxed
at a different rate from grants from other bodies, for example.
The categories of expenditure which could be set against income
to calculate profits would have to be determined, as would the
extent to which losses from a trading activity could be offset
against investment income.
Differences in taxation might arise from differing
legal structures. An incorporated charity would be liable to
corporation tax, while an unincorporated trust might be subject
to income tax as a discretionary trust under current rules.
A change in tax status is most likely to impact on
endowed charities that derive significant income and gains from
investment assets rather than trading charities, or those relying
on voluntary income.
Subject to all of the foregoing, nevertheless, a
very crude estimate of the impact of the policy can be made. We
believe that it is likely that most of the largest charities -
with certain notorious exceptions such as the Church of England
- given their concerns about their public image, have equal opportunities
policies in place. Given that the largest 5% of charities receive
90% of the £24 billion in charitable income, the next 95%
receive the remaining £2.4 billion. If all of these (which
is obviously far from the case) were operating discriminatory
policies and were to lose their charitable status, they would
lose up to 30% of their income, depending on precise rates of
corporation tax, income tax and capital gains tax. Therefore an
estimate of the upper limit for the amount of revenue charities
would lose if this policy were implemented, and assuming that
the relevant charities did not implement equal opportunities,
would be £720million, or 3% of total income.
However, VAT must be brought into the overall picture.
The VAT position is complex. VAT is a cost to most charities either
because their activities are considered non-business or because
the services they provide are exempt. VAT is incurred on expenditure.
It is a transaction tax. Any person purchasing goods and services
from a VAT registered supplier will normally incur VAT. The issue
is to what extent the purchaser can recover the VAT. In fact,
most businesses can recover this tax on their inputs as an offset
against VAT collected from its customers on their sales or outputs.
However, if the body is not in business or is making exempt supplies,
this recovery is blocked and the tax is a cost to it.
The same principles apply to charities. This is the
case whether a charity is grant making or providing services.
The difference is that grants in themselves are not taxable.
Therefore a charity providing, for example, exempt welfare services
may be seen to incur more irrecoverable VAT than a charity that
carries out its objectives by giving grants. Having said this,
it should not be forgotten that the recipient of a grant - either
an individual or another charity - may itself incur VAT that needs
to be funded by the grant provider.
Commercial service providers and trading bodies can
normally recover VAT because they are making taxable supplies
themselves. The problem for many charities is that either they
do not charge for their services (non-business) or their supplies
are exempt (e.g. education, welfare). There are some commercial
bodies that also provide exempt services (banks, insurance companies,
etc.) who also suffer irrecoverable VAT, but they are usually
able to pass this cost onto their customers. Charities on the
other hand generally cannot or do not want to.
The cost of irrecoverable VAT to the sector is estimated
to be of the order of £500million. Specific reliefs to the
sector as a whole are estimated at £200million. The net VAT
cost to the whole sector is therefore £300million. Applying
the same assumptions as above with regard to the proportion of
charities which do not operate equal opportunities policies reduces
this to £30million. The new crude upper figure for the amount
of revenue lost then comes down to £690million, or 2.9% of
total income. This ignores rates relief, exemption from the Climate
Change Levy and other concessions. While this percentage is not
material in terms of total income individual charities might,
of course, be hard hit.
(See appendix four for details of the tax concessions
available to charities.)
Appendix two: Case Studies
This appendix contains two case studies of charities
which have, to varying degrees, successfully implemented equal
opportunities policies; showing that non-discrimination is a realistic,
practical goal and indicating the kind of standards which charities
without an equal opportunities policy should implement as a condition
of their continued charitable status.
(i) Case Study One: Providence Row Housing Association
Providence Row was set up in 1860 by Father Daniel
Gilbert and the Sisters of Mercy to run a night refuge for the
homeless and dispossessed in London's East End. Its role has changed
at various times in its history. At one stage the emphasis was
on providing accommodation to homeless men; at another it aimed
to provide family accommodation.
In 1975 its range of services expanded when it became
Providence Row Housing Association; the original organisation
is now run as a sister charity: Providence Row Night Refuge and
Home. The Housing Association head office is in Bethnal Green
Road.
The Association has a turnover of £4.3m and,
at 31 March 1999, managed 445 accommodation places in 14 projects.
A further 129 places in five projects were under development.
Existing accommodation comprises: family houses; hostels; a combined
hostel and drop-in centre; supported bed-sits; supported flats;
key worker flats; a Foyer (premises which include employment
training facilities as well as accommodation) ; and move-on flats.
The bulk of the tenants come from the low income
East End, and the main ethnic groups are: African (22%); Asian
(6%); Caribbean (4%); Irish (10%); and British/European (58%).
The majority are men. Women are most heavily represented in hostel
places and supported flats. In terms of age, half are in the
5-40 range, with the next biggest proportion in the 41-59 range.
During 1999/2000 the Association had 97 permanent
staff, equivalent to 93 full-time posts. Fifty per cent are black,
7% Irish and the remainder is comprised of other ethnic groups.
The Association does not collect statistics relating
to the sexuality or disability of staff or clients, because statistics
collection is based on funders' requirements. However, this might
change: it is currently investigating a new performance management
system which could involve collection of relevant data.
The charity and the Housing Association targets services
at groups with special needs. For example, its Fidelis House project
is dedicated to women, providing support from Monday to Friday
with helpers available on call out of hours.
The Association also runs a cafe in Weavers' Fields
in the East End, run in partnership with the Shaw Trust, which
employs individuals with disability and support needs, and manages
a 42 unit Foyer.
Another project aims to provide affordable homes
for key workers in the City of London and Tower Hamlets. The definition
of 'key worker' is drawn widely for the purposes of the project
and includes catering workers and cleaning service employees as
well as individuals in more obvious occupations such as nursing
and the police. And, in line with its original objectives, it
ran a Cold Weather Shelter during the Winter of 1999/2000 within
which, recently, it has targeted clients with drug and alcohol
problems.
The issue of equal opportunities arose at Providence
Row's inception, when it was decided that the charity would be
non-sectarian in its provision of services. (There were charities
for the poor in the East End which were dedicated to particular
ethnic and religious groups, for example, soup kitchens for Jewish
people.) Equal opportunities policies for service users have
since gradually evolved. Similarly, given that the Association
was originally set up by members of Christian orders, equal opportunities
policies with regard to staff recruitment have evolved over time.
Currently, a range of equal opportunities initiatives
is being implemented. Providence Row runs annual service users
conferences which give service users the opportunity to brief
the management and board on their service needs. It has also recruited
a Service User Participation Officer and Providence People, an
association for all users of Providence Row's services, has been
launched with the aim of strengthening community links and encouraging
more people to get involved in decision making. A Tenants Forum
initiative focuses on issues concerning tenants of the Association's
Supported Housing Unit.
The Association considers equal opportunities in
provision of services and in recruitment to be of the same importance
and priority as consultation and participation.
The most recent equal opportunities policy dates
from 1992/3 and is currently under review. A rolling programme
is examining issues relating to equal opportunities in recruitment
, but other equal opportunities issues are also being raised.
In February 1999, for example, all managers received
training on the Disability Discrimination Act and associated issues
in relation to recruitment. A task force was set up by the Association's
board to implement recommendations made by an external consultancy.
Its membership extends to individuals from the Sisters of Mercy,
staff and service users. The task force's brief extends beyond
disability, however. Each month it is examining a different issue.
So far it has looked at gender, ethnicity and age.
The task force has drawn up a list of Equal Opportunity
and Disability Review Action Points for implementation in the
short term (0-3 months);medium term (0-6 months); and long term
(0-12 months). One influence has been the Housing Corporation's
1998 Black and Minority Ethnic (BME) HousingPolicy. For example,
a short term target of 30% BME board members has been set. Other
recommendations/targets include a medium term goal to undertake
an active approach to promoting the Association's mission and
values with regard to lesbian and gay men, and a short term goal
to advertise vacancies in local and minority press and 'Disability
Now'.
Providence Row Housing Association's current draft
'Policy to Promote Diversity' reads as follows:
Introduction
This policy arises out of PRHA's Equalities Strategy,
and aims to enhance the Association's performance and work with
both staff and service users from black and minority ethnic communities.
This policy should be read in conjunction with the Association's
Strategy to Promote Diversity.
The need for this policy is to address the issues
and concerns identified by the Race and Housing Inquiry in its
Challenge Report 2001, which demonstrated that insufficient progress
has been made within the housing association sector in addressing
the challenges of combating racism and promoting race equality.
Both this Policy and the Strategy will go to the
Board for approval after the views of staff and volunteers at
our Staff & Volunteers Conference 2001 have been taken into
account.
Policy Statements
Providence Row Housing Association (PRHA) acknowledges
that it is an organisation that serves many cultural groups through
housing and support services and as an employer in the City and
East London.
PRHA has recognised the potential for institutional
failure and the injustice this produces. This drives us to be
active in finding a just way forward.
This position acknowledges the tendency for any organisation
to become institutionally racist by design or default.
To achieve these appropriate responses PRHA will
continue to develop a culture of inclusion and celebration of
all people. This is completely in keeping with its Christian
ethos and values.
The Board and Chief Executive have committed themselves
to drive PRHA forward and ensure that there is no vestige of racist
policy and practice in its work and that the culture of the organisation
enables black and minority ethnic people, service users, staff
and members to feel that PRHA is an Association in which they
can freely contribute.
To enable PRHA to achieve the highest level of policy
and practice it will continue to acknowledge that it will actively
learn and gain understanding of the diverse communities in which
it works.
PRHA will ensure that it will keep in high focus
the issues relating to a diverse workforce and service user base.
We will welcome constructive criticism of its policies and procedures
and be prepared to change for the benefit of all.
Underpinning PRHA's approach to eliminating racism
is the formal inclusion of black and minority ethnic staff and
service users in the formulation and development of relevant policy
and practice.
PRHA's Christian understanding of service of the
community and individuals will include training and advice for
staff and service users on equalities issues with the aim to particularly
highlight the needs and aspirations of under-represented people
inasmuch as it affects housing and support services.
Listening to each other, striving to understand the
issues and being open to debate and discussion will be the cultural
norm at PRHA.
Opportunities to facilitate learning and action will
be integrated into the Operational and Business Planning of the
Association.
(ii) Case Study Two: Christian Aid
Christian Aid is a church agency of the churches
in the UK and Ireland, founded in 1945, in response the needs
of refugees and churches in Europe after the war. To start with
it was named Christian Reconciliation in Europe and was originally
a division of the British Council of Churches. In 1981 it became
an agency in its own right.
It works through local organisations as well as through
its sixteen overseas offices. The charity's total income was £58m
in 1999/2000. Of this, the major share, £40m, went on international
work: development, emergency relief and other programmes. During
1999/2000 it spent £13m in African working with 192 partner
organisations; £9m in Asia with 123 partners; £7m in
eastern Europe with 13 partners; £7m in Latin America and
the Caribbean with 143 partners; £1m in the middle east with
31 partners; £6m in the UK and Ireland with 100 partners;
and £3m for work on a global basis with 33 partners.
More insight into the charity's work can be gleaned
by looking in a little more detail at one region, West and Central
Africa. This includes the mainly French-speaking countries of
the Sahel, the arid region bordering the Sahara desert: Burkina
Faso, Mali and Senegal, as well as the English-speaking coastal
countries of the Gambia, Ghana and Sierra Leone. The possibility
of starting a programme in Nigeria is being explored.
In its London headquarters the programme has a nine
strong team, including Programme Managers and support staff, a
Communications Officer and a Team Administrator. In addition,
there are staff based in all countries except Senegal and the
Gambia: eleven in total including programme staff, administrators
and an accountant. Mali has a field office.
As well as supporting programmes in the seven countries,
the team supports two regional partners. The advocacy and research
organisation Third World Forum is based in Senegal. The All Africa
Council of Churches (ACA), based in Kenya, supports the development
work of Churches and Councils of Churches in Africa and engages
in peace and reconciliation work through the churches.
While this is an area of great geographical and cultural
diversity, the problems of food security run across it: more specifically,
the lack of reliable access to sufficient supplies of nutritious
food. Christian Aid's programme supports partners' work on agriculture,
water, basic healthcare, literacy, soil and water conservation
and micro-credit (small-scale savings and loans). Further priorities
are HIV/AIDS issues and conflict resolution.
There have been a number of recent initiatives on
HIV/AIDS: the team has initiated policy work, commissioned a report
on AIDS and the African Churches: Exploring the Challenges and
organised a major photography project featuring the work of HIV-positive
women.
The programme also works to strengthen the capacity
of partners to work on these issues, and help them to advocate
on a national and international level to bring about lasting change.
Across the organisation as a whole, equal opportunities
implementation is constrained by both its international nature
and its partnership structure. Currently it employs three hundred
and seventy staff directly in the UK and one hundred and fifty
abroad. Overseas it works with partner organisations and is also
supported in the UK by staff working for numerous UK churches.
This means that figures are unavailable for the total numbers
working for the organisation. There are no detailed figures available
of the numbers of recipients of its services, but these have,
over the past few decades, probably included several million people.
Christian Aid has an equal opportunities policy for
its staff. It monitors the ethnicity of its UK-based staff and
of its overseas UK-appointed staff, but not of local staff. However,
most of these are nationals of the relevant countries. While there
is no written policy with regard to the recipients of its services,
the organisation says that it works with the poorest communities
and overseas points out that it states that 'all shall be included'.
Current equal opportunities include diversity training, which
helps managements to adopt flexible approaches which respect and
respond to the diverse requirements and needs of individuals and
which help them to make full use of the range of talents and experiences
which they bring into the workplace.
Being a practising Christian is not a recruitment
requirement. However, for some posts it is important for staff
members to have an understanding of church structures and church
organisations, given that Christian Aid is a church sponsored
agency with 40 sponsoring churches. It does not monitor applicants'
religious affiliations, though it does ask for details on application
forms - it says that this requirement appears to be a relic from
the past and does not impact on its treatment of staff.
Christian Aid's equal opportunities policy is as
follows:
2. EQUAL OPPORTUNITIES POLICY
2.1 Policy
2.1.1 Christian Aid aims to be an equal
opportunities employer. The aim of this policy is:
To ensure that no job applicant or employee receives
less favourable treatment on the grounds of sex, disability, marital
status, religion, sexual orientation, colour, or national or ethnic
origin or is disadvantaged by conditions or requirements which
cannot be shown to be justifiable.
To ensure that, so far as the law allows, positive
action is taken to promote equality of opportunity.
2.1.2 The Board of Christian Aid may delegate
to committees or to its employees any of the tasks referred to
in this statement except the receipt and consideration of the
annual report referred to in paragraph 2.6.1 or the proposals
referred to in paragraph 2.6.3.
2.2 Recruitment and Selection
2.2.1 Christian Aid will consider, seek
and use the most effective ways of bringing job vacancies to the
attention of persons who may be disadvantaged on the grounds mentioned
in paragraph 2.1.1 (e.g. advertising in the ethnic minorities
press, notifying particular job centres, informing particular
church networks).
In preparing job descriptions, profiles of post
holders, required qualifications, etc, Christian Aid will take
care to ensure that no requirement or condition is included which
will disadvantage any member of a particular group.
In compliance with the Disability Discrimination
Act 1995, Christian Aid will make reasonable adjustments for applicants
that require support aids or services during the recruitment and
selection process as a result of a disability.
Christian Aid believes that all members of its staff
should be in sympathy with its aims, For certain posts, there
might be a requirement that the post-holder should belong to a
Christian Church. However, such a requirement could lead to indirect
discrimination if it were imposed in situations where it was not
relevant to the job concerned. In order to minimise the risk of
such discrimination, the Christian Aid Board will consider for
each existing or new post to which such a requirement is applied
whether it is justified.
The Board of Christian Aid will review, from time
to time, appointment shortlisting and interviewing procedures
(together with grievance and disciplinary procedures) to ensure
that they continue to meet the aims of this policy.
2.3 Training
2.3.1 Christian Aid recognises the crucial
importance of training in sustaining an effective equal opportunities
policy. The Christian Aid Board shall each year determine what
amount shall be available to be spent on:
Training which will, so far as the law allows, enable
all employees to fulfil their highest potential;
Training to enable those responsible for the selection
and promotion of staff or the operation of disciplinary or grievance
procedures to act in a manner which minimises the risk of discrimination.
2.4 Discrimination and harassment
Christian Aid is determined that no employee
should suffer any form of sexual or racial discrimination or harassment.
Any such discrimination or harassment by an employee that is established
after proper investigation will be regarded as gross misconduct
for the purposes of disciplinary procedures.
In compliance with the Disability Discrimination
Act 1995 (DDA), Christian Aid is committed to minimising any disability
discrimination by:
Making reasonable adjustments to an employees work
environment and where necessary their responsibilities if, during
their employment, the employee falls under the definition of disability
stipulated in the DDA.
Reducing any social discrimination in the work place
through staff training.
2.5 Positive action
2.5.1 Before advertising any posts, Christian
Aid shall consider whether, in the light of the number of persons
currently employed who are likely to be disadvantaged by the matters
referred to, the advertisement should state that applications
are particularly welcome from a specified group of people.
2.6 Monitoring and record keeping
Christian Aid will keep records of the gender, ethnic
origin and disability (if any) of each staff member, job applicant
and interviewee. Such information shall be kept solely for the
purpose of monitoring this policy. Information relating to any
individual shall not (subject to the provisions of the Data Protection
Act 1985), without the consent of that individual, be disclosed
to any person other than persons designated to keep such records.
The Christian Aid Board shall receive and consider
annually a report on matters mentioned in paragraph 2.6.1. The
report will also indicate the number of persons who have been
employed during the period covered by the report, broken down
by age, grade, gender, ethnic origin and disability.
2.6.3 It shall be the duty of the persons
to report through the Director of Christian Aid to the Christian
Aid Board any situation in which discrimination or lack of opportunity
is occurring and to propose any steps which may be taken to remedy
the matter and it shall be the duty of the Board to consider those
proposals.
2.7 Implementation
2.7.1 It shall be the duty of all employees
to give effect to this policy. A copy of this policy shall be
given to each existing staff member and a copy shall also be given
to each person that is invited to be interviewed. Particular
responsibilities relate to those involved in the selection and
recruitment of staff and the operation of disciplinary and grievance
procedures.
2.7.2 The Human Resources Director shall
have a general oversight of the monitoring of this policy to which
end he/she is not to be regarded as part of the line management
of the organisation but as being directly responsible to the Director
of Christian Aid and to the Board.
2.8. Resources
2.8.1 Christian Aid undertakes to review
from time to time and, in particular when each annual budget is
drawn up, what resources are required to make this policy effective.
2.9 Consultation
2.9.1 As part of the monitoring of this
policy and before making any changes to it, Christian Aid will
consult with the bodies representing staff members including recognised
trade unions and shall consider any representations made by such
bodies or trade unions. The Equal Opportunities Policy is available
to all staff from the Human Resources Department.
Appendix Three: Relevant Legal Considerations
This appendix will be divided into six parts
(i) The legal definition of a charity
(ii) The public benefit test
(iii) Equal opportunities and charity law
(iv) Equal Opportunities Law which applies to charities
(v) Details of tax exemptions for charities
(vi) The Human Rights Act and Human Rights Generally
(i) The definition of a charity
According to the Charity Commission's RR1:
For an organisation to be a charity it must fall
within the law's understanding of "charity" and be subject,
where necessary, to the jurisdiction of the High Court (Charities
Act 1993, s.96(1)). In order to fall within that definition an
organisation must have aims which are exclusively charitable and
must be set up for the benefit of the public.
In order to determine which purposes are charitable
the law uses a process of precedent and analogy. The courts have
decided that those purposes are charitable which fall within the
spirit of the preamble to the Statute of Charitable Uses 1601.
The preamble contains a list of purposes which were regarded as
charitable in Elizabethan times.
The courts added to the list of purposes which were
accepted as charitable over the years and in 1891, Lord Macnaghten
in the case of Income Tax Special Purpose Commissioners v Pemsel,
classified charitable purposes under four heads:
the relief of poverty;
the advancement of education;
the advancement of religion; and
other purposes beneficial to the community.
The classification has been used since as a matter
of convenience but it is not a definition. Although the courts
still use the preamble as a touchstone and refer to the Pemsel
classification, they have long recognised that what is accepted
as a charitable purpose must change to reflect current social
conditions. So a purpose will be charitable not only if it is
within the list in the preamble but also if it is analogous to
any purpose either within it or since held to be charitable. Nowadays
many charities are set up for purposes that are not mentioned
in the preamble.
In this way charitable purposes have been extended
and developed, by decisions of the courts and of the Charity Commissioners,
so that the development of the law has reflected changes in social
conditions and attitudes.17[86]
It should be noted that the Recreational Charities
Act 1958 effectively added a fifth head: the provision of recreational
or leisure time facilities in the interests of social welfare
The Charity Commission has also provided in RR1,
a handy summary of the essential characteristics of a charity.
It says that a charity has aims all of which are, and continue
to be, recognised by law as exclusively charitable ie that are:
(a) directed to the provision of something of clear
benefit to others in society;
(b)not concerned with benefiting individuals in a
way which outweighs any benefit to the public;
(c)directed to things that overall are not harmful
to humankind;
(d)certain and lawful;
and
(e)not for the pursuit of party or other political
aims;
Further, a charity is independent; is able to show
that any personal, professional or commercial advantage, is and
will continue to be incidental to carrying out its charitable
aims;does not impose conditions on access or membership that in
practice restricts the availability of facilities in a way that
results in the organisation as a whole not benefiting the public.18[87]
The Charity Commission has stated that 'the courts
have clearly indicated that they will not be rigidly bound by
precedent and that a particular purpose may cease to be charitable
as social circumstances change'.19[88]
Further detailed material on the legal nature of
charities is contained in Annexes to RRl, The Charity Commission
'Review of the Register of Charities'
(ii) Re: Charities acting for the public benefit
The Charity Commission has set out further useful
material relating to the public benefit head:
A purpose will be accepted by the courts and the
Commission as charitable only if it is for the benefit of the
public. This will be possible only if two conditions are satisfied:
(i) First, the organisation must be capable of having
a positive effect, and not cause harm to the public.
(ii) Secondly, those eligible to receive benefits
must (except in the case of organisations set up exclusively to
relieve financial hardship) comprise a large enough group to be
considered as the public or a sufficient section of the community
and no personal or private relationships must be used to limit
those who may benefit.
The law, subject to evidence to the contrary, assumes
that purposes under the first three heads of Pemsel will deliver
benefit to the public. But this has to be positively demonstrated
by any organisation claiming charitable status under the fourth
head.
The courts have stressed that the law is not static
and, as Lord Hailsham pointed out in I.R.C. v. McMullen
[1981] AC 1, 15E, the law must change as ideas about social values
change. This has two implications: first, new objects and purposes
not previously considered charitable may be held to be so; secondly,
objects and purposes previously regarded as charitable may no
longer be held to be charitable. Lord Wilberforce summarised the
principle to be applied, in Scottish Burial Reform and Cremation
Society v.. Glasgow Corporation [1968] AC 138, 154, when he
said that the court's decisions "have to keep the law as
to charities moving according as new ideas arise or old ones become
obsolete or satisfied."20
It is worth noting that the National Council for
Voluntary Organisations (NCVO) is in favour of organisations in
all four of the MacNaghten headings having to demonstrate a strong
public benefit for their activities in order to have a charitable
status. 21
The NCVO's proposal poses a particular problem for
ethnic minority communities, because the fourth head is that the
charity must operate for the benefit of the whole of the community,
which is obviously sensible with regard to environmental charities
or charities providing a public utility; or it must act for a
significant section of the community.
A vexed question concerns the nature of a sufficiently
significant section. The requirement that it must operate for
the whole of the community can be as small as a village, so for
example, a village hall which everybody in the village can use
could be considered to be charitable. More difficult to determine
are questions relating to the charitable status of a minority
community within the community as a whole.
For example, the Jewish community has not been regarded
by the Charity Commission as a sufficiently significant section
of the community on a national basis, although it is likely that
it would be in an area of high Jewish population such as Golders
Green or Hendon in London.
It should be noted that the essential characteristic
stipulated by the Charity Commission already set out above that
it 'does not impose conditions on access or membership that in
practice restricts the availability of facilities in a way that
results in the organisation as a whole not benefiting the public'
is clarified as follows:
to restrict benefits to the rich is not charitable
although a charity may charge for its services.
Access may though properly be limited in certain
circumstances including:
*by the nature of the charity's aims (a charity for
people in Bradford should not spend money for the benefit of people
in Bristol; a charity to relieve migraine sufferers must establish
that those it helps actually suffer from migraine and not chilblains);
*where, in order to deliver benefit to the public,
it is reasonable to expect the members to have reached a certain
standard of skill or knowledge or possess particular qualifications
(such as a performing orchestra or choir); or
*where a membership structure is adopted where that
is appropriate for the better delivery of benefits (providing
all those who might benefit can join and there are objective criteria
for deciding membership). 22
(iii) Equal opportunities law relating to charities
There is no equal opportunities law which relates
specifically to charities. While it is generally acknowledged
that good charity practice involves charities operating good equal
opportunities practices this is nowhere laid down in law. It is
set out in the Charity Concordat, but this is an agreement between
government and charities, rather than part of charity regulation
or law.
Overseas case law on equal opportunities and charities
has no legal status in the UK but there has been an important
relevant legal precedent in the US concerning the charitable status
of organisations that discriminate. Important cases in the US
concern the private religious college in South Carolina, Bob Jones
University.23[89]
For much of its history Bob Jones University practiced
racial segregation. Even after it admitted black students, it
maintained until recently a ban on interracial dating. The university
is exempt from income tax under Title IX of US tax law and practiced
racial discrimination in its admissions policy. However, it was
denied a charitable tax exempt status. The US Supreme Court held
that the school's discrimination policy was so out of step with
the conscience of the community that it provided no public or
charitable benefit.
In an earlier hearing, the university was notified
by the IRS, in line with a new policy of denying tax-exempt status
for private schools with racially discriminatory admissions policies,
that it was going to revoke the university's tax-exempt status.
The university alleged that it would suffer irreparable injury
and that the revocation would violate the right to free exercise
of religion. The Court of Appeals did not uphold the suit.24[90]
Further relevant material is contained in a counsel's
opinion solicited for the NCVO's consultation document on charity
law reform and provided by Francesca Quint. Opinion was sought
on the Committee's recommendation that charity law should be reformed
by requiring all charitable purposes to pass a single test for
public benefit. Some of this opinion is of direct relevance to
our proposal, though it conflicts with it:
It seems to me that reform along these lines will
only be feasible if the alteration to the substantive law is kept
to a minimum, and no attempt is made to change the meaning of
'public benefit' or the test by which a purpose is assessed as
being either for the public benefit, as opposed to changing the
purposes in respect of which the test applies.
There is a certain amount of variation depending
on the precise purpose, but broadly speaking, a purpose is currently
treated as being for the public benefit under charity law if the
financial assistance, items, services, facilities or other, less
tangible, benefits which are provided to people in furtherance
of the purpose are accessible to (i) the population, (ii) taxpayers,
(iii) people born, living, studying or working in a particular
continent, country, region, city, town or are (iii) the female
population (eg in the case of charities within the Recreational
Charities Act 1958) or (iv) a section of the public, a numerically
significant group defined by nationality, age, sex (if either
young, old and/or female), medical condition or disability, occupation,
vocation, educational or technical qualification, or those connected
with one another by some other link which is 'objective' rather
than 'subjective'.
By 'subjective' I mean qualifications (i) which are
either arbitrary and capricious (eg people with red hair or black
skin - although in the later case the qualification would in any
case be censored out of any governing document by s34(1) (a) of
the Race Relations Act 1976) or (ii) which specify contractual
or personal link or 'nexus' between the beneficiaries. Such a
link may be specified through common employment by a particular
company or group of companies, by common membership of an association,
church, masonic lodge, trade union or firm, or by their belonging
to the same family, having the same ancestor, or (whether or expressly
or by implication) by enjoying above average income or wealth
(see Jones v Williams (1767) Amb 651.) These well-established
principles should, in my view, remain untouched. They can then
be further clarified or developed by case law if necessary.25[91]
(iv) Equal Opportunities Law which applies to charities
A: The Race Relations Act 1976
Section 34 of the Race Relations Act 1976, as amended,
stipulates that charities cannot discriminate on the basis of
colour. Parts II and III of the Act forbid discrimination by employers
and other bodies, and forbid discrimination in other fields including
education, planning and the provision of goods, facilities, services
and premises. These parts of the Act apply to charities in the
same way as to other bodies. Furthermore, the Commission for Racial
Equality is making ongoing representations to the Home Office
for with regard to protection of volunteers from discrimination.
It is worth noting that there are new statutory duties
under the Race Relations (Amendment) Act 2000 Act for public bodies
to work for race equality. A general duty came into force on 2
April 2001. It is divided into three parts. The bodies must take
proactive steps to: outlaw discrimination; promote equal opportunities;
and to promote good race relations. Public bodies subject to further,
specific duties - notably the police - needed to have a race equality
scheme in place, or an action plan to deliver a fully functional
race equality scheme, by 31 May 2002.Currently, charities are
not included in the current list of public bodies but there will
be provision for the extension of the list
B: The Sex Discrimination Act 1975
The two specific exemptions which relate to charities
(in addition to the general exemptions discussed elsewhere: see
sections 11 and 14 above) are extremely broad ranging.
The first comes in s19(1) and states that the employment provisions
of the Act do not apply to employment for purposes of an organised
religion where the employment is restricted to one sex so as to
comply with the doctrines of the religion or to avoid offending
the religious susceptibilities of a significant number of its
followers.
The second comes in s43 and states that where a charitable
instrument contains a provision for conferring benefits on members
of one sex only (disregarding any benefits to members of the other
sex which are exceptional or insignificant), nothing in the Act
renders unlawful anything done to give effect to that provision.
There are also special provisions in the Act relating
to single-sex educational charities (4.14) and voluntary bodies
(5.15).
In sections 78 and 79, special provision is made
to enable educational trusts whose benefits are so confined to
apply (if the trustees so wish) to the appropriate education minister
for a scheme permitting the trust to offer its benefits to both
sexes.
The exception in section 34 with regard to voluntary
bodies states that a non profit-making body, which was not set
up by statute may lawfully restrict its membership, and the benefits,
facilities and services it provides to members, to one sex. Moreover,
whether or not membership is so restricted, if the main object
of such a body is to confer benefits on one sex, it is not unlawful
for the body to do anything which is necessary to give effect
to that object.
In 1999 the Sex Discrimination (Gender Reassignment)
Regulations 1999 extended the Sex Discrimination Act 1975 to cover
transsexuals.
C: The Disability Discrimination Act 1995
There are no specific exemptions for charities under
the Disability Discrimination Act 1995, although many charities
could take advantage of the general exemption for organisations
which employ less than 15 people. (This general exemption is,
however, set to be removed entirely by 2004).
D: The Human Rights Act 1998
The Act incorporates the European Convention on Human
Rights into UK law. It enacts several basic rights including:
the right to life; prohibition of torture; the right to a fair
trial; the right to respect for private and family life; freedom
of thought, conscience and religion; freedom of expression; freedom
of assembly and association; the right to marry; and prohibition
of discrimination. Charities providing health, residential and
other services to members of the public are likely to be affected
by the Act. It does not contain exemptions for religions. The
Convention's implications are dealt with more fully in part (vi)
of this appendix.
E: EU Article 13
Starting from 2003 it will be necessary to incorporate
into British law the EU anti-discrimination at work directive
under Article 13 of the Treaty of Amsterdam.
The directive covers discrimination in the workplace
on the grounds of religion. disability, age or sexual orientation.
Member states will be required to introduce protection
against discrimination on the grounds of religion or belief, disability,
age, sexual orientation, and racial or ethnic origin. In the UK
it is likely that new legislation will be required to cover equal
treatment on grounds of age or sexual orientation; and in Great
Britain, on grounds of religion or belief.
The employment directive affords protection in
the areas of: employment; self-employment; working conditions;
access to vocational training and work experience; and membership
of workers', employers' or professional organisations.
However, the directive does allow member states to
enact the directive with a large number of religious exemptions.
The precise nature of these exemption in the UK will be laid down
by parliament.
There is also a race directive under Article 13 which
must be enacted under UK law by 2003. Possible changes to existing
race relations legislation include: incorporation into law of
a newer, wider definition of indirect discrimination; protection
in areas not covered by the current Race Relations Act; and the
shifting of the burden of proof in civil discrimination cases
against employers. Again, any exemption will be determined when
the relevant bill goes through the UK parliament.
(v) Details of tax exemptions for charities
According to the Inland Revenue, charities are exempt
from tax on most forms of income and capital gains if they are
applied to charitable purposes. The main statutory exemptions
from tax for the income of a charity are contained in Section
505 Income and Corporation Taxes Act 1988 (ICTA 1988). These exemptions
relate to: income from land; income assessable under Case III
of Schedule D, such as bank interest, Gift Aid payments and any
annual payments; and trading income.
With regard to trading income, a charity is exempt
from tax on the profits of any trade carried on in the United
Kingdom or elsewhere - provided it is applied solely to charitable
purposes - which is either: exercised in the course of the actual
carrying out of a primary purpose of the charity; or is mainly
carried out by beneficiaries of the charity; or is the turnover
of a non-primary purpose trade which falls below certain limits.
It should be noted that the legal definition of 'trading' itself
in a charitable context is complex.
Charities receive a mandatory 80% relief on rates
on their charitable buildings which can be increased to 100% at
the discretion of the local authority. They are also, at present,
exempt from the Climate Change Levy.
Charities enjoy some relief from VAT on certain supplies.
The rules are complex, but on some supplies made to charities
the supplier can zero-rate or charge a reduced (5%) rate of VAT.
The specific reliefs from VAT are estimated to be worth about
£200m to the charity sector as a whole.
There are also exemptions for fundraising events
and the use of subsidiary companies provides further relief.
(vi) The Human Rights Act and human rights generally
There are a number of human rights issues which the
Government would have to address in dealing with any primary legislation.
Many of them concern the Human Rights Act. Under Section 6 of
the Human Rights Act 1998 the Courts are public authorities and
are required to carry out their functions with due regard to the
provisions of the European Convention on Human Rights. The Charity
Commission would also fall within the definition contained in
Section 6.
Any Government minister introducing legislation has
to include in it a statement as to whether or not the proposed
Bill is compatible with the European Convention on Human Rights,
so that the Government in formulating its legislative policy would
have to take it into account.
The proposal that certain organisations should lose
their charitable status in specified circumstances will give rise
to human rights issues especially where those organisations are
religious groups such as the Church of England.
However the examination of the human rights issues
raised by the paper and set out below indicates that there is
an arguable case in law for seeking a reform and that any difficulties
which such a reform might produce are not insurmountable.
A: Freedom of Thought Conscience and Religion: Article
9
The protection of this Article is twofold. The Article
covers the total freedom of the individual to have and change
a religious belief or to have none whatever. That right is absolute.
On the other hand, there is a right to manifest one's religion
by various activities and that is a qualified right which is subject
to exceptions. This qualified right applies not only to individuals
but also to Church organisations.
Although the Courts and the Government in any legislation
must make available religious freedom under the Convention, that
does not apply to the individual Churches or organisations themselves.
A Church is protected in its right to manifest religion, to organise
and carry out worship, to teach practice and observance and to
act out and enforce uniformity in those matters. The individual's
freedom of thought, conscience and religion is exercised by deciding
whether to join or work for such an organisation. If an individual
is not in agreement with an organisation's activities, there is
the option to leave. No Church or religious organisation which
has the protection of Article 9 is obliged to give religious freedom
to those who seek to join it (X v Denmark D&R5(1975)).
Having stated that general principle, however, not
every action is covered by Article 9. The Strasbourg Courts have
drawn a distinction between manifesting religious observance and
actions which are simply influenced indirectly by religion. There
is no right to claim special exemption from legislation which
applies neutrally and generally in the public domain eg income
tax where that does not directly impinge on manifesting religion.
Thus a Quaker could not refuse to pay income tax simply because
part of the money was spent on the armed forces (C v The United
Kingdom D&R7(1984)). Into this category of action would fall
the application for charitable status. It is not essential for
any religious organisation in manifesting its religion to have
charitable status. It is reasonable to assert that the removal
of charitable status for such organisations unless they were operating
an equal opportunities policy would not breach Article 9, although
there might be problems with other Articles under the Convention..
It must be remembered that Article 9 is a qualified
right and that the rights under it can be limited by contract.
The Strasbourg case law indicates that if a secular person joins
a religious organisation, or a religious person joins a secular
organisation they must abide by the contractual terms to which
they have signed up. The Strasbourg Court will not allow them
to back out of those situations. Thus if a clergyman in a Church
disagrees with the hierarchy he must resign (Ex v Denmark). A
Muslim person wearing a headscarf contrary to the dress regulations
of a secular university cannot claim the benefit of Article 9
(Karaduman v Turkey D&R74(1993)). A similar extension of
this principle could be made in relation to the funding of such
organisations. Given this, it is reasonable to assert that there
would be nothing contrary to the European Convention in funding
organisations such as the Community Fund or the New Opportunities
Fund insisting in their grant conditions on an equal opportunities
policy (which, indeed, they currently do). If the religious organisation
wishes to accept the grant it must do so on the contractual conditions.
Similarly, if Her Majesty's Government is inclined to fund religious
schools there would seem to be no reason why the terms of such
funding could not include a requirement that a certain proportion
of the pupils should be taken from non-denominational sources.
The principle could be extended to equal opportunities
in employment, although in relation to some of the more fundamentalist
religious organisations this could prove a difficulty. As dealt
with elsewhere in this paper, there can be discrimination against
lesbian and gay teachers. In relation to the armed forces the
Strasbourg Court has already made it clear that discrimination
without any objective justification whatever is totally unacceptable.
(Lustig-Preen & Beckett v United Kingdom (2000) 29 EHRR548).
Any attempt to justify discrimination would have to be supported
by objective evidence. It is anticipated that the argument that
would be raised by fundamentalist Churches would be that the biblical
prohibitions on male homosexuality contained in the Old Testament
books of Leviticus and Deuteronomy would be part of their religious
belief and therefore manifestation of that belief. Those restrictions
would also be mirrored in Judaism and Islam. As pointed out in
other parts of this paper, there have, in practice, been relaxations
of that view certainly within the Church of England and it is
questionable how far such an argument might be successful in this
day and age. It is reasonable to assert that unless some objective
evidence could be produced to the effect that equal opportunities
employment policy would undermine the teachings or tenets of the
particular religious denomination it would be difficult to establish
an objection to an equal opportunities policy in grant giving.
In summary, therefore, charitable status is not a
necessary manifestation of religion. In the light of an organisation's
power to contract out of its qualified rights there is no argument
in general principle which would prohibit a regime requiring equal
opportunity policy as part of the requirement of charitable status,
provided those policies applied nationally without discrimination
in the public domain.
B: Removal of Charitable Status: Article 1
When organisations already have charitable status
and it is proposed to remove that status if they do not apply
certain policies, an issue is likely to arise under Article 1
of Protocol 1 to the European Convention on Human Rights, which
is to say the quiet enjoyment of possessions.
'Possessions' has a very wide meaning under the Convention
and is broad enough to include charitable status, especially if
that involves tax relief. The rules relating to the granting
of tax concessions are recognised as civil rights under the Convention
(Editions Periscope v France 1992 14EHRR597).
The rights under Article 1 Protocol 1 are qualified
rights and there are exceptions although those exceptions are
strictly construed. The most relevant exception from the perspective
of this paper would be the ability of the contracting state to
control the use of property in the public interest. Such control
would have to have a firm legal foundation (such as new legislation),
it would have to be for the pursuit of a legitimate aim (in this
case the removal of inequality) and it would have to be a proportionate
response to the problem. It is not a question of whether it is
reasonable or useful - the Government would have to show that
it was strictly necessary in a democratic society, or in other
words, that there was some pressing social need for this change.
Proportionality is all about striking a balance between the needs
of society at large and the needs of the individual or organisation.
We are seeking to achieve greater social justice in terms of
equality of opportunity, and this gives us an arguable case.
The appendices we have produced in the paper show the sort of
practical problems in relation to pupil placement and employment
that are arising and lend support to our argument.
C: Discrimination: Article 14
Article 14 is not a free standing right. It relates
to other rights under the Convention. It must therefore be coupled
with some other breach in order to come into play. In the case
of gay and lesbian teachers the obvious argument would be to use
Article 8 together with 14, as was done in the Lustig-Preen case
mentioned above. The definition of discrimination in Article
14 is very wide and contains a catch-all expression 'any other
status'.
On the other hand, organisations faced with loss
of charitable status may themselves seek to argue that this is
discrimination on the basis of a combined argument of Article
1 Protocol 1 (possessions) and Article 14.
Differences of treatment can be objectively justified
provided that the purpose of the differences in treatment is itself
to eliminate some form of discrimination. This approach permits
the use of positive discrimination to eliminate any equalities,
which is the whole purpose of Article 14. Since the thrust of
our paper is to the effect that action is needed to remove inequalities
in employment and access to education there is an arguable case
that the reform we propose - provided it applied equally to all
charities in the public domain - could be objectively justified
under Article 14.
However the examination of the human rights issues
raised by the paper and set out below indicates that there is
an arguable case in law for seeking a reform and that any difficulties
which such a reform might produce are not insurmountable.
Appendix four : Examples of discrimination by charities
Discrimination in the area of admission to educational
institutions run by religious orders, in particular, appears to
be prevalent. According to a letter to the Independent on September
3 1999 by a Mr Peter McKenna:
'For 10 years I lived next door to a church primary
school in Liverpool. While I pay for its building and upkeep,
my children were not allowed to attend it, and had instead to
travel miles across busy roads to the nearest non-denominational
school. The secret is to put in some serious church-going before
applying: you recite the Nicene creed, and pretend to seek salvation
through the Bible, when all you really want to do is to get your
kids into a nice middle-class school.' (Source: the National Secular
Society's annual report 1999-2000)
St George's Crypt, a religious charity in Leeds,
states in its 'equal opportunities' policy: 'In order to safeguard
the Christian ethos of the charity, it is our policy not to employ
anyone whose lifestyle is inconsistent with our understanding
of that ethos.' One of the examples of 'inconsistent lifestyles'
given is '...active homosexual or lesbian relationships.' Other
are heterosexual adulterers, drug users and those involved in
occult practices and cults. (Source: The Guardian, December 11,
1999)
The Home Office Report on Religious Discrimination
cites the case of 'a multi-purpose Christian community centre
which provides activities and services for elderly people and
youth as well as space for other groups. The staff at the centre
are generally committed to equalities as part of their Christian
belief. However, a member of the centre's staff who had been involved
in campaigning activities in relation to the provisions of Section
28 of the Local Government Act wrote a letter to a newspaper which
might be interpreted as being anti-gay and lesbian. A white, male
staff member said the centre was then approached by the council
asking them hypothetically if they would accommodate Qu'ran classes
and lesbian assertiveness groups on their sites.'
Upon informing the local authority that the centre
would not allow these uses of its premises, funding was cut. (Source:
The Home Office Report on Religious Discrimination in England
and Wales, Home Office Research Study 221)
The Clarendon Street Shelter in Bradford, a hostel
for the homeless, told two of their clients, Michelle Bates and
Amanda Grove, that they would have to end their relationship or
be barred from the facility. The hostel is run by evangelicals
from the King's Arm church in Bedford and is linked to New Frontiers
International in the USA. (Source: Christian Homophobia, a report
by the Lesbian and Gay Christian Movement)
The Soutwark Diocesan branch of Reform, a national
Anglican conservative evangelical fundamentalist group, published
a booklet entitled 'Reforming Southwark'. The booklet went well
beyond even the current practice of the Church of England by stating,
'We expect that no sexually active homosexual or anyone advocating
the rightness of sexually active homosexual relationships be appointed
to remain in any position in the Diocese." This effectively
calls for a witch hunt against not just gay clergy and church
staff, but against anyone who disagrees with them on this matter.
(Source: Christian Homophobia, a report by the Lesbian and Gay
Christian Movement)
The Diocese of Coventry's retreat centre, Offa House,
through its former wardens Revds Michael and Sharon Simpson refused
to allow the Evangelical Fellowship of LGCM the use of its facilities,
despite advertisements claiming the centre was 'Open to all'.
(Source: Christian Homophobia, a report by the Lesbian and Gay
Christian Movement)
A member of the National Secular Society in Leicestershire
refused to sign up to a 'character and ethos' statement confirming
personal Christian beliefs in a 'Home School Agreement'. He wanted
the right for parents who did not agree to strike the words from
the Home School Agreement that they were asked to sign and support.
The school, the diocesan authorities and the bishop exerted disproportionate
pressure on him and his family over a long period, causing considerable
distress. The Bishop of Leicester even declared in a letter: 'I
am afraid your objections put you in conflict with the law, the
majority view of other faiths, with the school governors and with
diocesan policy.' The matter has now been settled but only after
the individual took it to the DfEE, who resolved the point in
his favour. (Source: The National Secular Society's Response
to the Government Green Paper on Education 'Schools, BUILDING
ON SUCCESS' 31 May 2001)
In another case cited by the NSS, the daughter of
a Mr Dean Buckner was denied a place in a London Catholic school
because she was not a Catholic - even though the school was almost
next door to her home. He now plans to take his case to the United
Nations Human Rights Committee in Geneva. He claimed that the
school's policy was overtly discriminatory 'particularly in our
immediate area which is 75 per cent church schools'. (Source:
The National Secular Society's Response to the Government Green
Paper on Education 'Schools, BUILDING ON SUCCESS'
31 May 2001)
In another case a registered blind woman in Warwickshire
applied for places for her children at the school nearest her
home - which happened to be an RC school. Her application was
refused despite her disability being declared, with the obvious
implications for the children's safety. She would have had to
take her two young children to the nearest community school, which
would have entailed her crossing a busy road twice a day with
her youngsters. In the event, her husband was so worried about
the safety of his family, that he gave up work to look after them,
something that would have been unnecessary had the school accepted
her application on compassionate grounds. (Source: The National
Secular Society's Response to the
Government Green Paper on Education 'Schools, BUILDING
ON SUCCESS'
31 May 2001)
Footnotes
1The Charity Commission Document, The Review of
the Register of Charities, part 1, para 1.
2ibid, part 1, para 1
3 ibid, part 1, para 9
4ibid, part 1, para 9
5ibid, part 1, para 9
6ibid, part 1, para 13
7ibid, part 1, para 14
8Compact on Relations between Government and the
Voluntary and Community Sector in England, para 8.8.
9Empirical data on the subject of changing social
attitudes in the general area of equal opportunities is scant,
but here are some examples monitoring changes in attitudes in
periods in recent periods, of between eight to thirteen years,
from the British Social Attitudes Survey:
(i) There is a law in Britain against racial discrimination,
that is against giving unfair preference to a particular race
in housing jobs and so on. Do you generally support or oppose
the idea of a law for this purpose?
1983 1996
% %
Support 69.0 74.5
Oppose 28.3 20.6
Don't know 2.0 4.6
Not answered 0.7 0.2
(ii). Do you think, on the whole, that Britain gives
too little or too much help to Asians and West Indians who have
settled in this country, or are present arrangements about right?
1983 1991
% %
Too little 7.4 12.8
Present right 54.6 49.3
Too much 32.4 30.0
Other answer 0.4 0.7
Don't know 4.1 6.7
Not answered 1.0 0.6
(iii). There is a law in Britain against sexual discrimination,
that is against giving unfair preference to men - or to women
- in jobs, housing and so on. Do you generally support or oppose
the idea of a law for this purpose
1983 1994
% %
Support 75.8 81.6
Oppose 21.6 15.6
Don't know 1.9 2.7
Not answered 0.7 0.1
10 See National Secular Society Annual Report
1999-2000 pp2-4. Furthermore, the government's white paper
on education, 'Achieving Success in Schools' (05.09.2001) states
5.27 We also want to encourage schools to choose
to establish new partnerships with other successful schools, the
voluntary sector, faith groups or the private sector, where they
believe this will contribute to raising standards.
It goes on to say
5.30 Faith schools have a significant history as
part of the state education system, and play an important role
in its diversity. Over the last four years, we have increased
the range of faith schools in the maintained sector, including
the first Muslim, Sikh and Greek Orthodox schools. There are also
many independent faith schools and we know that some faith groups
are interested in extending their contribution to state education.
We wish to welcome faith schools, with their distinctive ethos
and character, into the maintained sector where there is clear
local agreement. Guidance to School Organisation Committees will
require them to give proposals from faith groups to establish
schools the same consideration as those from others, including
LEAs. Decisions to establish faith schools should take account
of the interests of all sections of the community.
5.31 We note that Lord Dearing's report to the Archbishops'
Council recommends that the Church of England increase significantly
the number of secondary school places it supports. Where there
is local support, we will welcome that. We want these schools
to be inclusive, and welcome the recommendation that Church of
England schools should serve the whole community, not confining
admission to Anglicans. We want faith schools that come into the
maintained sector to add to the inclusiveness and diversity of
the school system and to be ready to work with non-denominational
schools and those of other faiths.
Achieving diversity
5.32 Only if we can build on the commitment and enthusiasm
of all those who work in schools will we succeed in implementing
a truly diverse secondary system. This is a strategy for all schools
in every area. We want to create the opportunity for every school
to develop its distinctive ethos and excellence. But we will not
force schools to take on a role that they do not wish to have.
Nor will we add requirements that schools do not feel they have
the capacity to manage. We know that diversity is not something
that can or should be imposed.
It is worth noting that these proposals include no
specific safeguards to ensure equality of opportunity either for
school employees or students. Given the performance of some faith
based institutions in this area in the past (see appendix four)
this is cause for grave concern.
11Race Relations Act 1976, part III, section 23
12 Sex Discrimination Act s7(2) (ba)
13 The Disability Discrimination Act 1995 Section
7 part (1)
14 The Charity Commission Document, The Review
of the Register of Charities (RR1) RR1 Annex A - Legal principles
and Charity Commission powers to determine charitable status,
paras A1-A4
15 ibid, Part 2-The Essential Characteristics of
a Charity
16 ibid, Annex A, para A9
17 ibid, Annex A, paras A6-A8
18 The NCVO's A consultation document on charity
law reform, Executive Summary, page (i)
19 RR1, pp7-8
20 Bob Jones University v. United States (1983)
461 US
574.
21 Bob Jones University v. Simon, Secretary of
the Treasury, et al, Court of Appeals for the fourth circuit
1974;No 72 - 1470)
22 The NCVO's A consultation document on charity
law reform, Appendix 3
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