Joint Committee On Human Rights

Joint Committee On Human Rights Twentieth Report

Draft Bills

5 Draft Charities Bill

Date presented
Reference NumberDepartmentDate Consultation ended
Previous Reports
27 May 2004
Cm 6199
Home Office
21 June 2004
None

Background

5.1 The Draft Charities Bill was published as part of a Home Office Consultation Paper in May 2004.[47] The Joint Committee on the Draft Charities Bill, set up to carry out pre-legislative scrutiny of the draft Bill, published their report on 30 September 2004.[48] We wrote to the Chairman of the Joint Committee on the Draft Charities Bill and to the Home Office outlining the human rights concerns that we had with the draft Bill.[49] We received a response on 7 October from Fiona MacTaggart MP, Parliamentary Under Secretary of State at the Home Office which is printed here as an appendix.[50]

5.2 The main purpose of the Bill is to modernise the legislative and regulatory framework for charities. It includes provisions setting out the objectives and functions of the Charity Commission, establishing a Charity Appeals Tribunal, and a detailed regime for the regulation of charities. The majority of the Bill's provisions do not raise any significant human rights issues.

The change in the law - the presumption of public benefit.

5.3 Clauses 1-3 of the draft Bill set out a statutory framework for definition of a charity. Clause 1 provides that a charity is an organisation established for a charitable purpose. For a purpose to be considered to be charitable, it must satisfy two requirements: it must be for the public benefit,[51] and it must fall within one of the purposes prescribed in clause 2(2) of the Bill, which include the advancement of education and the advancement of religion. Clause 2(2) would also make the advancement of human rights a specific charitable purpose.

5.4 It is significant that, under clause 3 of the draft Bill, no purpose is to be presumed to be for the public benefit.[52] All organisations wishing to be registered as charities will therefore be required to establish both that they fall within one of the categories listed above, and that they provide a public benefit. "Public benefit" is not defined in the draft Bill, though under clause 3 it is to be interpreted in accordance with existing charity law.[53]

5.5 At present, organisations established for the relief of poverty, or the advancement of religion or education, are presumed to be for the public benefit, and therefore charitable.[54] Clause 3 abolishes this presumption, and places such organisations on the same footing as any other seeking charitable status.

The human rights implications of the draft Bill

5.6 The removal of the presumption that organisations established for the relief of poverty, or the advancement of education or religion, provide a public benefit engages the right to education (Article 2, Protocol 1 ECHR), the right to property (Article 1, Protocol 1 ECHR) and the right to freedom of thought, conscience and religion (Article 9 ECHR).

The human rights implications of clause 3 for private schools

5.7 The abolition of the presumption of charitable status for educational organisations, in particular private schools, needs to be considered within the framework of the education rights guaranteed by domestic and international human rights law. Article 2, Protocol 1 ECHR states that—

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.[55]

This right is to be read in light of the obligation under Article 14 ECHR to guarantee the Convention rights on a non-discriminatory basis.

5.8 Under Article 13.3 of the International Covenant on Economic Social and Cultural Rights (ICESCR) States Parties undertake—

… to have respect for the liberty of parents and, when applicable, legal guardians, to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.[56]

5.9 Article 18.4 of the International Covenant on Civil and Political Rights (ICCPR) requires

respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

5.10 Article 29(2) of the Convention on the Rights of the Child (CRC) also recognises the liberty of individuals to establish and direct educational institutions.

5.11 The removal of charitable status may also engage property rights under Article 1 of Protocol 1 ECHR. It states—

Every natural or legal person is entitled to the peaceful enjoyment of his possessions.

….

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

However, it is likely that any interference with property rights involved in the removal of charitable status would be found to be justified in the general interest, since Article 1 Protocol 1 allows a relatively wide discretion to States to impose and enforce taxation.[57]

Private schools and Article 2 of Protocol 1

5.12 The aim of the second sentence of Article 2 of Protocol 1, is to safeguard pluralism in education. Although the independent sector may contribute to achieving this pluralism, it is primarily to be realised through educational provision by the State.[58] Article 2 of Protocol 1 nevertheless requires states to respect the rights of parents to establish private schools, in order to provide their children with an education that accords with the parents' religious or philosophical convictions.[59] The right to establish independent schools is not an absolute one, and is subject to regulation by the State in order to ensure a proper educational system, and to maintain educational standards.[60]

5.13 Article 2 of Protocol 1 does not require the State to provide any form of subsidy or support for private schools.[61] Case-law of the European Court of Human Rights has established that there is no positive obligation on states to provide for private education; their obligation to respect the convictions of parents is discharged by permitting the establishment of independent schools.[62] Although one of the indicators of respect for parents' religious or philosophical convictions in the education of their children may be State support or subsidies for independent private schools which cater for these convictions,[63] the withdrawal of subsidies from private schools which do not fulfil prescribed criteria has been held not to breach Article 2 of Protocol 1.[64]

The practical impact of clause 3

5.14 On the evidence received by the Joint Committee on the draft Bill, it does not appear that it is likely to impose onerous restrictions on private schools or to result in the closure of schools established to cater for the religious or philosophical convictions of parents. It therefore appears unlikely that the Bill will raise difficulties of compliance with Article 2 of Protocol 1 provided that the provision is not applied in a discriminatory way.[65]

5.15 Even if the removal of charitable status under the Bill were to result in the closure of schools, or to seriously inhibit their functioning, clause 3 should be sufficiently flexible to be applied compatibly with rights under Article 2 of Protocol 1. Under section 3 of the Human Rights Act both the Charity Commission and the courts will be required to apply clause 3 in accordance with the Convention rights. An interpretation of "public benefit" as including the provision of education in accordance with religious or philosophical convictions which it can be demonstrated are not adequately provided for within the State educational system would ensure that clause 3 was applied in compliance with Article 2 of Protocol 1. In our view, it would support compliance with the Convention rights in practice, if either the Bill itself, or guidelines under the legislation, were to include provision to this effect. We wrote to the Home Office and to the Joint Committee on the Draft Bill, drawing our view on this matter to their attention. The Home Office in reply took the view that a provision on the face of the legislation would be unnecessary, but agreed that it would be desirable to clarify the matter in guidance. We welcome this.

Effect of clause 3 on organisations advancing religions or beliefs

5.16 The draft Bill would also end the presumption of public benefit in relation to religious organisations. "The advancement of religion" would be a specified purpose under clause 2(2) of the Bill, and organisations formed for this purpose would also need to establish that they provided a public benefit in order to attain charitable status.

5.17 We note that, whilst it is accepted by the Charity Commission and others that most religious activity, including public worship and religious work in the community, would be considered to provide a public benefit and to be charitable, some concern has been expressed that "religion", which is not defined on the face of the Bill, may be interpreted narrowly, to exclude beliefs such as Jainism and Buddhism.[66] Concern has also been expressed by the British Humanist Association that clause 2(2)(c) refers only to the advancement of religion and thereby excludes the advancement of non-religious ethical beliefs such as humanism.[67] The Charity Commission expects that, despite the limited scope of clause 2(2)(c), the British Humanist Association will be considered to fall within the "catch-all" provision of clause 2(2)(l) and will continue to receive recognition as a charity. The British Humanist Association is concerned about the uncertainties of recognition by this route, in particular the extent to which it will be permitted to "advance" its beliefs, in a manner similar to religions recognised under clause 2(2)(c).[68] It also objects to the implied denigration of non-religious beliefs in the failure to accommodate them under clause 2(2)(c).[69]

The human rights implications for freedom of religion and belief

5.18 Article 9.1 ECHR states—

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.[70]

5.19 Article 9 affords the same protection to religious and non-religious belief systems.[71] "Belief" under Article 9 refers to a relatively narrow category of "views that attain a certain level of cogency, seriousness, cohesion and importance".[72]

5.20 Article 9 has been held not to prevent the imposition of taxes on religious organisations.[73] The loss of charitable status would be unlikely to raise issues under Article 9. However, any discrimination in the grant of charitable status to organisations concerned with the promotion of religious or other belief systems, could raise issues under Article 9 read together with Article 14 ECHR.

5.21 Any inequalities of treatment that might result from the recognition of non-religious organisations (or organisations falling outside a narrow definition of religion) under clause 2(2)(l) rather than clause 2(2)(c) would be likely to breach Article 9 read together with Article 14, unless it could be shown that this difference in treatment was justified by the nature of the organisation concerned or its activities.

5.22 In our view, compliance with Article 9 and Article 14 could best be achieved by amending clause 2(2)(c) to include the advancement of both religion and belief. At a minimum, guidelines under the Bill would need to make clear that organisations advancing non-religious beliefs protected by Article 9 would be accorded recognition under clause 2(2)(l) on an equal basis to religious organisations falling within clause 2(2)(c).

5.23 We raised the matter of the potential for discriminatory treatment under clause 2(2)(c) with the Joint Committee on the Draft Charities Bill and the Home Office and sought clarification from the Home Office as to why clause 2(2)(c) could not be amended to include "religion or belief". The Home Office responded that it was satisfied that organisations advancing non-religious beliefs would not be disadvantaged under the Bill as currently drafted, since the law would be capable of development compatibly with the Convention rights. The Home Office also considered that defining non-religious belief systems would require detailed legislative provisions which would impair the flexibility of the legislation. However, the Home Office was prepared to consider setting out the position of non-religious belief systems in guidance. We remain of the view that Convention compliance could best be supported by including the advancement of non-religious beliefs as a charitable purpose under clause 2(2)(c) and we draw this matter to the attention of both Houses.

Human rights as a charitable purpose

5.24 Clause 2(2)(h) of the draft Bill recognises the advancement of human rights as a charitable purpose. The Charity Commission issued draft guidance for consultation, on the promotion of human rights as a charitable purpose. We welcome the inclusion of human rights as a charitable purpose in the draft Bill. Since the promotion and advancement of human rights by charitable organisations is an important aspect of the implementation of the Human Rights Act and the development of a human rights culture in the UK, we wrote to the Charity Commission to comment on aspects of the draft guidance that will give substance to clause 2(2)(h). Our letter is appended to this report.[74]

47 Cm 6199 Back

48 The Joint Committee on the Draft Charities Bill, First Report of Session 2003-04,The Draft Charities Bill, HL Paper 167, HC 660 Back

49 Appendix 4a Back

50 Appendix 4b Back

51 Clause 2(b) Back

52 Clause 3(2) Back

53 Clause 3(3) Back

54 Cm 6199, p. 105 Back

55 The United Kingdom has entered a reservation to Article 2 of Protocol 1 which states:

In view of certain provisions of the Education Acts in force in the United Kingdom, the principle affirmed in the second sentence of Article 2 is accepted by the United Kingdom only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.