DCH 100 Henry Broadbent
In the summer last year the Government
published the outcome of its consultation surrounding its proposed
reforms to the legal framework, which has defined and regulated
charitable organizations since an Elizabethan statute of 1601.
The Prime Minister was concerned that the law and regulation in
this area was in certain respects outdated or obstructive. In
the forword to Charities and Not-for-Profits : A Modern Legal
Framework (CNfP) David Blunkett expresses his gratitude to
the 1,100 oraganisations who submitted their views concerning
the reform proposals outlined in the Strategy Unit's preliminary
consultation document Private Action, Public Benefit. In
true democratic tradition by doing so, he says, 'they have helped
to inform our actions'.
There has been much discussion since
the publication of CNfP on the few reforms which respondents rejected
as being impractical or unworkable, such as the proposal to allow
all trading activity to be conducted within the charitable trust
circumventing the need for a wholly owned trading subsidiary.
There has been very little discussion conversely on proposals
which respondents rejected but which, in apparent defiance of
democratic principles, were nevertheless endorsed in CNfP and
subsequently enshrined in the draft provisions of the Charities
Bill shortly to be scrutinized by an appointed parliamentary committee.
The following attempts to address this omission and will hopefully
ferment further debate and discussion before the draft bill is
eventually enacted at the earliest in early to mid 2005.
CNfP says that religious organizations
roundly opposed the proposal to remove the existing legal presumption
that they provide benefits to the public. The law currently presumes
that, unless there is evidence suggesting otherwise, religious
organizations exist by default for the public benefit and, therefore,
are charitable. In spite of the negative response from organizations
potentially effected by this suggested reform the Government,
in an unsubtle sleight of hand, concludes in CNfP that 'the presumption
of public benefit for charities for the advancement of religion
should be removed' (3.18).
In Germany the equivalent sector is
stratified into three divisions each with its own structure of
accountability :
1. Public sector organizations supervised
by government;
2. Organisations promoting religion
overseen by church hierarchies and
3. Organisations independent of both
government and church hierarchies
NCVO's Charity Law Advisory Group reported
early in 2001 in their consultation document on charity law reform
For the Public Benefit that many regarded religious organizations
as 'a category apart' (3.4.3) from other charitable bodies.
On the basis of this they concluded that there was a need 'to
more clearly distinguish organizations promoting religion within
the broader charity category'. Although suggestions to complicate
the classification system were generally resisted, different treatment
for religious institutions was considered 'a must'. In an oral
evidence session the eminent charity lawyer Christopher McCall
QC summed up these ubiquitous feelings as follows :
"….religion is the
philosophical mainspring of charity. It has social rather than
public benefit, teaching people to distinguish between right and
wrong".
So there seems to be a widespread consensus
that organizations who pursue religious objectives do not simply
deliver benefits to the public, as this has come to be defined
through case law, but are of a much deeper and more-encompassing
significance to society. And yet the proposed reforms would elevate
the public benefit aspect of charitable activity as the ultimate
defining measure and the sine qua non of charitable status.
It seems to me that the legal presumption, which the Government
would like removed, respectfully acknowledges the sensus
of the ordinary person that religion 'delivers' a great deal
more than the Strategy Unit and the Home Office currently acknowledge.
This added extra is not something,
however, which can be readily measured and subsequently evaluated
since it involves values and beliefs which are the intangible
outcomes of religious experience. These impalpable qualities may
or may not be translated into public action or 'good works' registering
on our normal radar screens ; it does not mean, however, that
they cease to exist nor that they play a vital though hidden role
in personal relationships and consequently wider society.
If, in contradistinction to what policy
makers and politicians would have us believe, religious charities
are not set up primarily as providers of public services but are
only involved in these by 'accident', then what do they do that
makes them of such interest to the public at large ? In what activities
do they engage to precipitate socially beneficial values and beliefs
?
Offering facilities for prayer would
be one answer although it is debatable whether entering into an
interior conversation with Our Maker constitutes a mode of activity
in the usual sense of the word. It is more an exercise in retreat
from the habitual cares and concerns of our broken world. The
frenetic activity that engages and depletes us in our normal lives
is momentarily suspended in the context of a community of prayer.
The opportunity to 'be' rather than to 'do' reconstitutes, restores
and refreshes so that we go back to our routines and relationships
re-invigorated. No one need ever no why we return with a spring
in our step or a light in our eye, though most certainly everyone
benefits.
The religious experience may convert
into visible acts of kindness and generosity that might even correspond
with a particular government initiative but the motor driving
such activism is not concern with social order and public policy
: such exhibition is simply love for others that takes us beyond
our natural individuality ordinarily closed upon itself. The person
comes to life in these acts of spiritual creativity which are
a response to the promptings and urges of divinity. Religious
organizations therefore enable and empower persons to break free
and overcome the boundaries of mutual exclusion that define us
over and against each other in our relationships.
There are therefore two options available
to the framers of the final version of the Charities Bill : either
preserve the legal presumption that religious organizations provide
social and public benefits, in recognition of the unique contribution
they make to national life, or set up a separate legal entity
for such bodies which provides for the fact that they do more
than just deliver public or welfare services. If the draft provision
removing the presumption is finally enacted this will have monumental
if not disastrous consequences for religious groups. As the response
submitted on behalf of the Catholic Church in England and Wales
puts it in a discussion of the proposed additional reporting requirements
for general charities:
'If somebody's life is quietly
but totally converted are we likely to know, and even if we did
would we chalk this up on our success measure yardstick ?'
If these reforms are to be truly democratic
and not part of some wider government programme then the provisions
of the revised Charities Bill have to enshrine the common sensus
concerning religious bodies. Anything less will be an affront
to civilized values.
|
