DCH 21 Professor Peter Edge
Francene Graham,
Joint Committee on Draft Charities Bill,
Scrutiny Unit, Room G10
7 Mill Bank,
London SW1P 3JA.
11 June 2004.
Dear Francene Graham,
Submission on the Draft Charities Bill.
Please find enclosed a brief submission to the Joint
Committee on this Bill, accompanied by two supporting articles
as background materials.
Yours sincerely,
Professor Peter W. Edge.
Submission to the Joint Committee on the Draft
Charities Bill, 11 June 2004.
1. Professor Peter W. Edge is Professor of Law at
Oxford Brookes University.
Background.
2. The Cabinet Strategy Unit recommended that any
presumption of public benefit for particular heads of charity
should be abolished; and that public benefit would need to be
shown for all charities. They considered that an essential characteristic
of public benefit was "that the pursuit of the institution's
purposes will in fact benefit the public in a manner that can
be determined objectively" (Cabinet Office Strategy Unit:
"Private Action, Public Benefit: Charitable Status",
section 4).
3. The Strategy Unit considered the application of
the public benefit test to charities for the advancement of religion.
They recognised that religious organisations might face an increased
evidential burden. In a key section: "[t]hey might have to
show (unless this was self-evident) that their teachings and principles,
if adhered to, were more likely to make members conduct themselves
as responsible members of society, and that membership was open
to the public at large. Benefit would either be direct through
the holding of services and through teaching or indirect through
the example of adherents. It could be made clear, for the avoidance
of doubt that worship which is open to the public is considered
for public benefit, even if it is not possible to empirically
prove that those who attend have benefited."
4. The Strategy Unit drew a significant distinction:
"It is not intended that these proposals should prove to
be a problem for established religions. But the change could make
it easier for the Courts and the Charity Commission to justify
the non-acceptance as charities of bodies connected with fringe
religions where on balance there is evidence of harm".
5. In a response the Government noted the assurances
as to public religious rites, and additionally added: "[r]emoving
the presumption of public benefit will not affect the continuing
charitable status of religious organisations that carry out missionary
and evangelistic work" ("Charities and not-for-profits:
A modern legal framework", 3.19).
6. The most relevant clauses of the Bill are cl.2
and cl.3. Clause 2(2)(c) details the advancement of religion as
one of the heads of charity; while 2(2)(e) refers to the advancement
of citizenship or community development. Clause 3(2) clarifies
that "it is not to be presumed that a purpose of a particular
description is for the public benefit". The will trump existing
law, as made clear in clause 3(4). The explanatory note to the
Bill adds that this will abolish the presumption of public benefit
for relief of poverty, advancement of education, and advancement
of religion, putting all charities on the same footing.
Difficulties with the proposed law.
7. The Strategy Unit's analysis that public benefit
requires objectively determined benefit to the public poses especial
problems in relation to the advancement of religion. By emphasising
the finding of public benefit free of presumptions, the Bill would
require organs of the State to become involved in discussing whether
the advancement of a particular religion in a particular
way will benefit the public. This has a number of undesirable
consequences.
8. The State has renounced the jurisdiction to make
findings as to metaphysical reality. When considering the overall
benefit of advancing a religion, the State will therefore need
to proceed on the basis that all claims are correct (including
contradictory claims); all claims are incorrect; or that the validity
of no metaphysical claim is to be considered in assessing public
benefit. The third approach is the most likely to be adopted.
Charitable status will therefore be awarded exclusively on the
basis of secular public benefits, when contributors to the charity
will often have made the contribution on the basis of the metaphysical
benefit.
9. Once metaphysical benefits have been discounted,
there exist two general arguments for deriving public benefit
from religious organisations.
10. First, the incidental argument that religion
provides a motivation for activities leading to secular benefit.
If these activities produce benefit, however, then this would
appear to be the case regardless of motivation. An emphasis on
the religious motivation for a secular benefit links two distinct
elements together - elements that need not be linked.
11. Second, the character argument that religion
provides society with members who are in some way more useful
to society than they would otherwise be. Given the diversity of
religious belief, values, and practice in the United Kingdom identifying
the character traits built by all religions may be problematic.
In any case, given the absence of any presumptions in assessing
public benefit, the State would need to engage with each religious
organisation to identify what characteristics involvement with
the organisation are likely to promote; and whether these are
desirable in society. The principal disadvantage here is that
this will lead to excessive entanglement between the State and
religious organisations.
12. A particular danger in relation to this entanglement
is that some religious organisations may receive unequal treatment.
This has already been hinted at in the suggestion that established
religions will not be threatened by the law, but that fringe religions
may be easier to deal with. Given the work to date of the Charity
Commission in relation to religious charities, there is a real
danger that the social stigmatisation of some religious organisations
will be converted into differential legal treatment. If the test
is to be applied evenly, however, then large, established religious
communities may need to justify their values at length. For instance,
some communities excluding women from access to particular offices
of spiritual and community leadership may need to demonstrate
the beneficial effect of their values taken as a whole.
13. A third difficulty with citing personal transformation
as public benefit is that members of other religious communities
may see the transformation quite differently. The United Kingdom
is a religiously heterogeneous society. Charitable status carries
with it important financial benefits, effectively providing a
State subsidy for charities. In relation to religious charities,
this can effectively require individuals to support through the
tax system religious organisations they passionately believe to
be in error, to be effecting damaging personal transformation.
Conclusions.
14. The emphasis on public benefit in the Bill is
entirely justified, when it is remembered that charitable status
carries with it significant financial benefits, in effect constituting
a State subsidy to the activity. Applying public benefit analysis
seriously to the advancement of religion, however, will lead to
an increased level of State entanglement in the activities of
religious organisations, and in particular carry with it the risk
of unjustified differential treatment of religious communities
already vulnerable because of their unpopularity, novelty, or
small size.
Background materials attached.
Edge P., 1995, "Charitable status for the advancement
of religion: An abolitionist's view", Charity Law and
Practice Review 3(1), 28.
Edge P. and Loughrey J., 2001, "Religious charities
and the juridification of the Charity Commission", Legal
Studies 21(1), 36.
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