DCH 62 British Humanist Association
THE DRAFT CHARITIES
BILL A submission
to the Parliamentary Joint Committee on the Bill
from the British
Humanist Association
Summary
The Human Rights Act makes
official discrimination on the basis of religion or belief unlawful,
and "belief" certainly includes non-religious beliefs
such as Humanism. The perpetuation of a separate head of charity
for "the advancement of religion" (rather than religion
or belief) constitutes discrimination which is not merely formal
(Humanism can qualify under the catch-all "other analogous
purposes" head) but actually damaging in a number of ways
that we specify. Insofar as it may result in less favourable
treatment for non-religious causes it is unlawful.
Whereas for the Human
Rights Act's central purpose of protection of the rights of the
individual a very wide definition of "beliefs" is required,
so as to include even those most would agree are eccentric, a
narrower category must be defined where what is in question is
a privileged status and a degree of relief from taxation. This
will be produced in part by the requirement of public benefit,
and the Bill, by removing the presumption that the advancement
of religion is charitable, will require a similar scrutiny of
religious applicants for charity status.
The criteria for judging
the public benefit from organisations for the advancement of religion
and those for the advancement of non-religious beliefs must not
be discriminatory. If both types of charitable purpose are placed
under the same head ("advancement of religion or other beliefs"),
and a suitable definition is included as to what qualifies as
a religion or belief, then non-discriminatory tests for charitable
status can be developed that are applicable to (and needed for)
both religious and non-religious beliefs and lifestances. We
suggest in some detail ways of achieving this.
The British Humanist Association
1 The British Humanist
Association (BHA) is a registered charity. Its primary object
is the advancement of Humanism. It is the principal organisation
supporting and representing the interests of the large and growing
population of ethically concerned but non-religious people living
in the UK. It is committed to human rights and democracy, and
has a long history of active engagement in work for an open and
inclusive society.
Introduction
2 We welcome the main
reforms proposed in the Bill, in particular the requirement that
public benefit shall be basic to acceptance as a charity, although
we feel strongly that the Charity Commission should scrutinise
existing charities' activities for public benefit, and we are
broadly in favour of the proposals put forward by the Directory
of Social Change. We are concerned, however, that the draft Bill
discriminates between religious and non-religious beliefs. This
discrimination is not compatible with the European Convention
on Human Rights and the Human Rights Act 1998; and we propose
a simple remedy.
Human rights
3 Article 9 of the European
Convention on Human Rights, incorporated in British law under
the Human Rights Act, reads in part:
Everyone has the right to freedom
of thought, conscience and religion; this right includes freedom
to change his religion or belief and freedom, either alone or
in community with others and in public or private, to manifest
his religion or belief, in worship, teaching, practice and observance.
4 The same phrase is used
in Article 18 of the International Covenant on Civil and Political
Rights where it has been glossed by the UN Human Rights Committee
as "protect(ing) theistic, non-theistic and atheistic beliefs,
as well as the right not to profess any religion or belief"
and this breadth of definition - which without any doubt embraces
Humanism - has been confirmed in case law.
5 The phrase was adopted
in the European Union directive on religious and other discrimination
in employment and hence in the Employment Equality (Religion or
Belief) Regulations 2003. It is significant that the Government
amended its own Communications Bill to extend the obligation on
public service broadcasters to providing programmes about "religion
and other beliefs" rather than just religion, adding a definition
of what qualified as "beliefs". The Charity Commission
themselves recently changed their guidance to extend a ruling
on promotion of religious harmony as a charitable object to cover
non-religious beliefs.
6 Article 14 of the European
Convention requires that the rights and freedoms it guarantees
"shall be secured without discrimination on any ground such
as . . . . religion . . .", and section 6 of the Human Rights
Act makes it illegal for public authorities to discriminate on
such grounds. Official discrimination on grounds of "religion
or belief" is therefore unlawful and no privilege may in
future be accorded to any religion or to religions as a class
while excluding non-religious beliefs such as Humanism.
7 Moreover, section 3
of the Human Rights Act requires that "legislation must be
read and given effect in a way which is compatible with the Convention
rights" which suggests that, if unlawful discrimination is
to be avoided, "religion" must be interpreted to include
non-religious beliefs.
The definition of "charitable
purpose" in the draft Bill
8 The draft Bill, however,
(in clause 2(2)(c)) picks out "the advancement of religion"
as a category of charitable purposes without any mention of "the
advancement of non-religious beliefs". This is to discriminate
between these two categories of systems of belief. Prima
facie this fails to satisfy the European Convention and the
Human Rights Act. The onus is on the legislature to ensure that
the Bill, as passed, with amendment as necessary, will not disadvantage
non-religious systems of belief. This can best be achieved by
treating religion and non-religious beliefs in the same way (and
keeping them together in the Bill) unless there is some vital
purpose to be served by dealing with them separately, and then
only if it can be guaranteed that non-religious systems of belief
will not suffer as a result.
9 We have made representations
to this effect to the Home Office and have had a meeting with
them. They do not contest that the advancement of Humanism is
and should remain a charitable purpose, but for reasons we do
not understand they do not wish to amend clause 2(2)(c).
10 There are on the face
of it two other ways that advancement of non-religious beliefs
can qualify as charitable
(a) by interpreting "advancement
of religion" to include "advancement of non-religious
beliefs" in line with section 3 of the Human Rights Act -
but it would be highly unsatisfactory deliberately to use the
word "religion" in legislation to indicate something
so contrary to normal usage;
(b) by continuing to qualify
under clause 2(2)(l). This is the rag-bag "other purposes
within subsection (4)" with its references to "purposes
recognised as charitable purposes under existing charity law"
and to analogy built on analogy.
11 The advancement of
Humanism cannot qualify under any of the other heads (a) to (b),
(d) to k). In particular, it cannot qualify under (b) - the advancement
of education, since education (in the general charitable sense)
must not involve the promotion of controversial beliefs or opinions.
12 Our objections to relegation
to the "rag bag" are not nugatory. Clause 2(2) of the
Bill classifies the purposes which are charitable; and the public
benefit appropriate to each purpose follows from its characterisation.
Relegation to 2(2)(l) leaves the public benefit of "advancing
Humanism" in dispute and leaves us open to unfavourable discrimination.
We have ourselves been challenged by opponents who question our
right to "advance" Humanism, as against merely to "educate
about" Humanism. And a Humanist organisation has recently
experienced unreasonable difficulties at the hands of the Charity
Commission when it applied for registration - even though its
objectives were identical to those of existing charities.
13 There is also a very
serious the matter of principle. The separation of Humanism from
religion, with the elevation of the latter to a category of its
own and relegation of Humanism to the "rag-bag", implies
that Humanism is not equivalent in kind or in value. It is a
public slur on non-religious beliefs.
14 We therefore submit
that the third head of charitable purposes, "advancement
of religion", should be extended to include non-religious
beliefs, with both required to meet exactly the same criteria.
The definition of "religion
or belief"
15 It is axiomatic in
charity law that public benefit is demonstrated, and in the case
of religious charities the Bill proposes to abolish the present
rebuttable presumption of public benefit, which will in this regard
place religious and non-religious beliefs formally on the same
footing.
16 However, careful consideration
of what will qualify for charity law as a "religion or belief"
is required. In the context of human rights, where an individual
is claiming freedom to practise his religion or belief, the only
legitimate limitation is genuine social damage, or damage to other
individuals. But where an organisation is claiming a privilege,
in particular very significant financial advantage at public expense,
it is proper to impose a narrower definition. The word "belief"
is of wide significance and needs examination.
17 Before turning to "belief",
however, it is worth noting that the interpretation of "religion"
is already beset with difficulty. For example:
(a) The narrow definition
of "religion" in English law calls in question the position
of non-theistic religions such as Buddhism - a problem recognised
by the Cabinet Office Strategy Unit, which recommended that the
law be changed to "clarify that faiths that are multi-deity
(such as Hinduism) or non-deity (such as some types of Buddhism)
should also qualify". (It should be noted that widening,
whether by legislation or by exercise of the Charity Commission's
discretion, "the advancement of religion" to cover non-theistic
lifestances that happen to be called religions such as Buddhism,
while excluding non-theistic lifestances such as Humanism that
happen not to be so called, makes the discrimination against Humanism
all the more obvious.)
(b) Controversial causes
such as Scientology have hitherto been excluded from charitable
status in part on the ground that they are not "religions"
in English law, on the present rather narrow definition. This
ground for exclusion is unlikely to survive any extension of the
definition of religion. More immediately, it is surely vulnerable
to a challenge under the Human Rights Act. (A successful challenge
would, of course, still leave the public benefit hurdle to be
cleared.)
18 What is the critical
public benefit that flows from the advancement of religion? At
their best, religions foster mental and moral improvement. This
distinguishes religions from the generality of "social service"
charities: religious organisations may give social service, but
they give more than that. They give a basis for morality and
a grounding and inspiration for good living. But belief in a
God is not essential for these benefits. Humanism and religion
are alike in this: Humanism also provides a world view as a basis
for morality, inspiration and responsible living. It does not
promote belief in God or worship of him, but the Human Rights
Act establishes that this cannot be used as a basis for discrimination,
whether in charity law or elsewhere.
19 Linking (non-religious)
beliefs with religion under a single head of charity not only
avoids discrimination, but also offers other important advantages.
In particular, it enables each to shed light on the other. Administrative
precedent and case law about religious charities should more easily
be kept in line with that about non-religious beliefs and vice
versa (as required by the Human Rights Act) if they are dealt
with under a single head of charitable purpose.
20 Moreover, the linking
of religion and belief helps define "belief", implicitly
requiring that, in order to qualify, beliefs must be in some sense
analogous to religions. A further aid to definition comes from
observing that a broad interpretation of the English word "belief"
is inconsistent with the meanings of the corresponding words in
the French and German versions of the Universal Declaration and
the European Convention on Human Rights. The French term is conviction
and the German is Weltanschauung. The use of "conviction"
in English is problematic because it has penological associations,
which the French word lacks, but the word "conviction"
without this unfortunate association expresses a significant aspect
of what is required. Both "conviction" and Weltanschauung
suggest deep or ultimate beliefs which are parallel to those of
a religion. It is proper, therefore, that "religion or belief"
should be so interpreted. We ourselves use the term "lifestance"
- a concept that encompasses both religious and non-religious
beliefs.
21 The courts have already
established a part of this, holding in one case
that "belief means
more than just 'mere opinions or deeply held feelings': there
must be a holding of spiritual or philosophical convictions which
have an identifiable formal content"
and in another that
"the term 'beliefs'
. . . denotes a certain level of cogency seriousness cohesion
and importance".
22 A formal definition
of the third head of charity might therefore be on the following
lines:
The advancement of a religion
or belief, where that religion or belief expresses a conception
of what is ultimately important and of the implications of this
in living, including an account of morality.
23 This would include
those "non-religious beliefs" which merit charitable
status and exclude those that do not. The definition conveys
the necessary quality of a qualifying religion or non-religious
belief, in particular its moral commitment, and it establishes
the necessary analogy with religion. At para. 4.33, Private
Action, Public Benefit says that practice of a religion "tends
generally to contribute to the social and moral welfare of adherents",
thereby establishing its public benefit. Exactly the same is
true of any non-religious belief that would qualify under the
definition in para. 22 above.
24 Such a limitation of
"religion or belief" might be challenged on general
human rights grounds. Many authorities have stressed the necessity
of a very wide interpretation - for example, the UN Human Rights
Committee, quoted above in para. 4. A wide interpretation is
eminently proper when an individual is claiming freedom. But it
cannot extend to a right to demand special privileges when the
basis for giving these privileges is that they are earned by the
public benefit given by the recipient.
25 For example, the right
not to hold any religion or belief is proper and important, and
denial of human rights to any individual on that ground is wrong.
But not holding any religion or belief in itself gives no public
benefit, and its promotion does not produce charitable benefits.
Likewise atheism as such gives no public benefit, for as such
it is simply a denial, and carries no positive values. Public
benefits derive from the positive commitments expressed in a lifestance,
in particular commitment to morality. The rejection of a god
merely clears the ground: a lifestance which is atheistic derives
its account of morality from positive values in the natural world.
Humanism and Roman Catholicism, with their different foundations
for morality, make moral judgements that differ on some points
of considerable importance, such as contraception, but both lifestances
agree on the key importance of social responsibility and personal
morality. Both must therefore be accepted as giving public benefit.
It is not for the State to declare for or against one lifestance
or the other.
26 Discrimination between
beliefs is justified if it is based on criteria which are fair
between beliefs. The criteria we have suggested are fair. The
European Convention establishes that discrimination on grounds
of belief in a god or gods, or any other supernatural entity,
is not.
27 The draft Charities
Bill treats religious and non-religious beliefs differently.
This discrimination will disadvantage non-religious beliefs, and
is contrary to the Human Rights Act. We call on the Joint Committee
to ensure that this is rectified.
British Humanist Association
10 June 2004
Its objects
are "the mental and moral improvement of the human race by
means of the advancement of Humanism, that is to say, the moral
and social development of the community free from theistic or
dogmatic beliefs and doctrines; the advancement of education and
in particular the study of Humanism and the dissemination of knowledge
of its principles."
Polls yield different answers according
to the question asked but on average suggest that those who reject
religious belief amount to about 30% of the population, with even
official surveys such as the 2001 census finding about 15% of
declared unbelievers. Of these a significant proportion lead
lives according to humanist principles, even if many have not
come across the word or choose not to label themselves with it.
See http://www.dsc.org.uk/charityexchange/fee_charging_charities.html
"Everyone shall have the right
to freedom of thought, conscience and religion. This right shall
include freedom to have or adopt a religion or belief of
his choice, and freedom, either individually or in community with
others and in public or private, to manifest his religion or
belief in worship, observance, practice or teaching."
General comment 22 (30/07/93)
For example:
(a) "As enshrined in Article 9,
freedom of thought conscience and religion is one of the foundations
of a 'democratic society' within the meaning of the Convention.
It is, in its religious dimension, one of the most vital elements
that go to make up the identity of believers and their conception
of life, but it is also a precious asset for atheists, sceptics
and the unconcerned." - Kokkinakis v Greece: (1994)
17 EHRR 397, para 31 (emphasis added) and
(b) "The right to freedom of religion
as guaranteed under the Convention excludes any discretion on
the part of the State to determine whether religious beliefs or
the means used to express such beliefs are legitimate." -
Manoussakis v Greece: (1996), EHRR 387, para 47.
"The purpose of this Directive
is to lay down a general framework for combating discrimination
on the grounds of religion or belief, disability, age or
sexual orientation as regards employment and occupation, with
a view to putting into effect in the Member States the principle
of equal treatment." - Council directive 2000/78/EC of 27
November 2000.
Namely: "'belief' means a collective
belief in, or other adherence to, a systemised set of ethical
or philosophical principles or of mystical or transcendental doctrines".
For
example, Lord Denning in 1970 saw the essence of a religion as
reverence to God: "It need not be the God which the Christians
worship. It may be another God, or an unknown God, but it must
be reverence to a deity." - R v Registrar General ex parte
Segerdal [1970] 3 AER 886 at 889. Similarly, in 1980
Dillon J defined religion as "concerned with man's relations
with God and ethics are concerned with man's relations with man"
- Re South Place Ethical Society: Barralet v Attorney General
[1980] 3 AER 924. In a wider context, Lord Ahmed, speaking
in 1999 in the House of Lords, suggested defining religion as:
"that system of beliefs and activities centred round the
worship of God which is derived in whole or in part from a book
revealed by God to one of his messengers" - Hansard,
HL, 28.10.99, column 457.
Private Action, Public Benefit,
para. 4.34.
McFeekly v UK: (1981), 3 EHRR 161
Campbell and Cosans v. UK: (1982),
4 EHRR 293 para 36 - (this case related to Article 2 - right
to education).
A definition such
as that quoted in footnote 8 from the Communications Act 2003
would be a possible alternative, with the benefit of uniting the
interpretation of "belief" in two branches of the law.
We believe this definition would exclude
beliefs that would generally be felt unsuitable for charitable
status. Marxism-Leninism, one belief that might make a serious
claim to be a non-religious lifestance, can be excluded by the
well-established principle that politics is not acceptable as
a main purpose of a charity. Marxism-Leninism has a mixed purpose,
and the treatment of such purposes has been judicially established:
"The promotion of a religion meant the promotion of the spiritual
teaching of the religious body concerned and the maintenance of
the spirit of its doctrines and observances. If a religion imposed
some secular aim that did not make it the promotion of religion"
(Keren Kayemeth Le Jesroel v IR. [1931] 2KB 465 at 469).
The applicant for registration in this case had as its main object
the restoration of the land in Palestine to Jewish occupation,
claiming this to be a religious object for Jews, but the application
was refused. Likewise, political objects are a main purpose
of Marxism-Leninism. As a consequence, even if Marxism-Leninism
could establish itself as a non-religious belief within the proposed
definition of "religion or belief", this would not make
its political demands any less political or its objects any more
charitable.
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