DCH 103 Institute on Religion and Public
Policy
Institute
on Religion and Public Policy
Memorandum from the Institute
on Religion and Public Policy
to the Joint Committee on
the Draft Charities Bill
Introduction
1.1 The Institute on Religion and Public
Policy is a Washington, D.C.-headquartered non-profit, non-partisan,
inter-religious organization that seeks to shape the public participation
in policy of the community of faith. With offices in Brussels
and a presence at the United Nations, the Institute facilitates
the expression of faith in the public interest through various
program activities and research in the public policymaking process.
The Institute promotes cooperation and communication between
policymakers and faith-based organizations and charities to achieve
an optimal relationship on both domestic and international public
policy concerns. The Institute on Religion and Public Policy
impacts and affects those places where religion has an identifiable
and inextricable influence on public life.
1.2 The Institute on Religion and Public
Policy is a non-profit, non-partisan organization dedicated to
the research and encouragement of cooperation between religion,
ethics and morality and government, politics, and policy in both
the domestic and foreign arenas. The Institute seeks to provide
a trusted, balanced forum where Democrats and Republicans, liberals
and conservatives, Protestants, Jews, Muslims, Catholics, and
peoples of all faiths and beliefs can meet and come to an understanding
and plan of action on issues of common concern. The Institute
provides an opportunity for individuals and organizations of diverse
backgrounds, which may otherwise never have an opportunity for
such cooperation, to sit at the same table in a respectful and
open dialogue to collaborate on issues affecting religion and
public policy around the world.
1.3 The Institute promotes cooperation
and communication between policymakers and faith-based organisations
and charities to achieve an optimal relationship on domestic and
international public policy concerns. The Institute monitors legislation
in national legislatures that concerns religious freedom and religious
organisation issues, including charities, to ensure that such
legislation complies with international human rights standards.
1.4 The purpose of this submission
is to address two deficiencies in the Draft Charities Bill: 1)
the failure of the Home Office to implement the Strategy Unit's
proposal to widen the definition of religion consistent with international
standards; and 2) the proposed measure to abolish the presumption
that the advancement of religion is for the public benefit whilst
failing to provide precise and objective standards concerning
a "public benefit test". These deficiencies contravene
the Human Rights Act 1998 (HRA) by allowing for discrimination
against minority religious organizations in the application of
charity law.
Definition of Religion
2.1 In its consultation report, Private
Action, Public Benefit, the Strategy Unit proposes that the
"current interpretation of religion be widened" through
legislation under the new purpose of Advancement of Religion to
"clarify that faiths that are multi-deity (such as Hinduism)
or non-deity (such as some types of Buddhism) should also qualify".
(Section 4.34).
2.2 This proposal to broaden the current
interpretation of religion is consistent with human rights principles
at the heart of Prime Minister Blair's government. There can be
no doubt that the HRA has a profound effect on how inclusive the
definition of religion must be to comply with international norms
that are now directly incorporated into domestic law. For the
first time, affirmative rights have been introduced to protect
minority religions.
2.3 The refusal of the Home Office
to adopt the Strategy Unit's recommendation to do away with current
inequities and discrimination so as to align charity law with
the human rights standards incorporated in the HRA represents
a glaring deficiency in the draft legislation that must be remedied.
2.4 The Charity Commission currently
defines a religion for purposes of charity law as requiring a
belief in, and Judeo-Christian-style worship of, a Supreme Being.
Such a test is inappropriate and represents the essence of religious
discrimination.
2.5 The critical need for the Strategy
Unit's proposed reform regarding the interpretation of religion
is underscored by the fact that more than 400 groups registered
as religious organisations, including 144 Buddhist organizations,
several groups of Jains, Hindu groups, Christian Scientists, Unitarian
Churches, Odinshofs, Quakers, and Spiritualists do not meet the
current Charity Commission definition of religion. These groups
of course should be registered and the Charity Commission has
no intention of applying its current religion definition to them
- graphically illustrating the arbitrary and discriminatory nature
of the Commission's current approach and the vital necessity for
reform.
2.6 As a report to the Home Office
on the subject finds, the incorporation into domestic law of the
international norms and standards in the European Convention on
Human Rights "creates a major contextual shift for the consideration
of policy responses to the issues of discrimination on the basis
of religion". These practical policy concerns for all legislative
proposals are inherent in section 19 of the HRA, which requires
Ministers to certify that government Bills laid before Parliament
comply with the international human rights standards in the European
Convention on Human Rights. Yet, the Home Office has failed to
widen the definition of religion as proposed by the Strategy Unit
in its Draft Bill to comply with the Convention and fundamental
human rights.
2.7 There is no question that the Charity
Commission's restrictive definition of religion does not meet
human rights standards and that legislation widening the definition
is required. The
University of Derby Religious Resource and Research Centre, in
its January, 2000 Interim Report to the Home Office on policy
proposals to Religious Discrimination, has published a definitive
study finding that the rights which the Convention and the HRA
convey must apply equally to New Religious Movements, that no
distinction may be made between different kinds of belief, and
that no legal basis exists to separate out new and minority faiths
from world religious traditions. The
Report notes that any definition of religion "that does not
take account of the non-theistic traditional world religions of
Buddhism or Jainism, let alone the newer religious movements such
as Scientology" would be "problematic".
2.8 The requirement of a broad definition
of religion is also properly recognized in the Employment Equality
(Religion or Belief) Regulations 2003 implemented by Parliament:
regulation 2(1) defines "religion or belief" as any
religion, religious belief or similar philosophical belief".
In the Explanatory Notes for the regulations, the Department
of Trade and Industry notes:
"The reference to religion is
a broad one and is in line with the freedom of religion guaranteed
by Article 9 ECHR. It includes those religions widely recognized
in this country such as Christianity, Islam, Hinduism, Judaism,
Buddhism, Sikhism, Rastafarianism, Bahai's, Zoroastrians and
Jains….The European Court of Human Rights has recognized
other collective religions, including…the Church of Scientology…."
2.9 Likewise, Justice, the
British section of the International Commission of Jurists, in
a Briefing to Parliament on the Anti-Terrorism Crime and Security
Bill, provided its opinion that the definition of religion needed
to be widened in the United Kingdom to bring it in line with Article
9 of the European Convention:
"The term religious hatred may
not be open to such a wide interpretation, as within the UK, the
definition of religion has been more narrowly interpreted, mainly
in the context of charity law. It has been used to exclude Scientologists
and some other new religious movements. We would propose that
the provision be amended to bring it into line both with Article
9 and the new obligations under the EC Employment Framework Directive".
2.10 The most important feature of
a definition of religion is that it not be discriminatory and
that it treat all religions equally. The government has an obligation
under the HRA to eradicate discrimination between religions. In
order to remove the anomalies created by the narrow interpretation
of religion in the United Kingdom, legislation broad and flexible
enough to encompass all religions and all forms of worship is
required.
2.11 That is precisely why the Strategy
Unit proposed expanding the definition of religion to meet current
human rights standards. Yet, the Strategy Unit's main purpose
of modernizing charity law is undermined by the Draft Bill's omission
of a broad definition of religion as mandated by the HRA. It
is vital that the definition of religion be subject to parliamentary
scrutiny through legislative language in the Charities Bill that
restores the Strategy Unit's purpose to ensure that the term religion
under charity law is brought up to date so that it is broad enough
to satisfy the HRA by encompassing all religions.
Public Benefit
3.1 The Draft Bill purports to set
out the public benefit test for charities by abolishing
the presumption that the advancement of religion,
education or the relief of poverty
is for the public benefit, and by referring to the existing concept
of "public benefit" as it is understood in charity law
rather than defining the term with objective and precise standards
in the legislation.
3.2 Any new measures to change the
presumption under existing law that the advancement of religion
is for the public benefit must be considered within the framework
of the HRA and the European Convention to ensure they satisfy
two key principles:
- They must be carefully designed
to further the European Court of Human Rights policy of "true
religious pluralism" to prohibit discrimination between religions.
- They may neither vest officials
with "wide discretion" on matters relating to religion
nor allow for the subjective evaluation of the merits of religious
practices and beliefs.
3.3 As presently drafted, the public
benefit section of the Bill fails to satisfy these principles.
Abolishing the presumption of public benefit for religions and
not providing an objective and precise public benefit test would
empower officials with unfettered discretion. Its application
to religious organisations will necessarily require official evaluation
of different religions to determine the benefit that flows to
the public, which will inevitably lead to discrimination through
subjective judgments of religions in relation to the public benefit
issue.
3.4 This expansive approach to the
concept of public benefit is consistent with the European Human
Rights Court's application of a fundamental human rights policy
of the European Community to religious freedom issues - "the
need to secure true religious pluralism, an inherent feature of
the notion of a democratic society".
3.5 In furtherance of this policy of
"true religious pluralism", the Court has instructed
governments "to remain neutral and impartial" and has
been loathe to accept any restrictions on religion, viewing any
contested measures with "strict scrutiny". The Court
has also criticized and struck down measures that vest officials
with "very wide discretion" on matters relating to religion.
In criticizing broad discretion in one case, the Court held that
"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."
3.6 Instead, the Court determined that
officials should be limited to verifying, "whether the formal
conditions laid down are satisfied". It stressed that seemingly
innocuous administrative action restricting the rights of minority
religions operated as a "lethal weapon against the right
to freedom of religion." The Court has also emphasized,
"in exercising its regulatory power in this sphere and in
its relations with various religions, denominations and beliefs,
the State has a duty to remain neutral and impartial"; this
duty of neutrality "is incompatible with any power on the
State's part to assess the legitimacy of religious beliefs."
3.7 As the Court has determined that
the government may neither assess the merits of religious practices
and beliefs under ECHR Article 9, nor favor some religions over
others under ECHR Article 14, then the government surely may not
apply a public benefit test to provide privileges to some religious
organizations while imposing hindrances on others based on assessments
of such practices and beliefs. Yet, abolishing the presumption
of public benefit for religious organizations in the Bill provides
a convenient pretext for officials to discriminate against minority
religions, thereby eroding fundamental rights.
3.8 It is significant that not only
minority faiths, but also the Archbishops' Council of the Church
of England have expressed concern about abolishing the presumption
of public benefit for religious organizations due to vesting such
broad discretion in decision makers. The presumption of public
benefit should be retained for organizations seeking registration
for the purpose of the advancement of religion so that the personal
opinions, prejudices and predilections of those officials who
apply the law are not permitted to undermine the principles of
equality and non-discrimination at the heart of international
human rights standards. European Court of Human Rights decisions
require no less.
3.9 Retaining the presumption solely
for religious organizations to protect them from discriminatory
treatment is consistent with the HRA. Indeed, section 13 of the
HRA emphasizes that if government action "might affect the
exercise by a religious organization (itself or its members collectively)
of the Convention's right to freedom of thought, conscience and
religion", it must have "particular regard to the importance
of that right".
Research Project on Religious Discrimination,
An Interim Report for the Home Office, Religious Resource
and Research Centre, University of Derby, at 60 (hereinafter "Derby
Report").
Derby Report, section 1.4 at 7.
Justice, Briefing on the Anti-Terrorism Crime
and Security Bill, House of Lords Second Reading, November
2001, at 14
Manoussakis Others v. Greece, (59/1995/565/651)
(26 September 1996), paragraph 44.
Metropolitan Church, paragraph 117;
Manoussakis, paragraph 44.
Manoussakis, paragraph 45.
Manoussakis, paragraph 45; Metropolitan
Church, paragraph 117.
Manoussakis, paragraphs 41, 50-51.
Metropolitan Church, paragraph 117.
Response of the Archbishops' Council to the Report
of the Strategy Unit, December 2002.
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