Briefing to Peers on the Draft Charities Bill

Introduction: The Nature of this Submission

1. This Submission by the National Secular Society is intended to assist those parliamentarians concerned with the above Bill. The Submission concentrates on religious and belief aspects of the Bill and how it impacts or should impact the Society and organisations promoting non-religious life stances. The Society also made a Submission in July 2004 to the Joint Committee of Parliament on the Draft Charities Bill. Recommendations are shown in bold.

2. A description of the Society appears in Appendix 1, together with some details about an organisation with similar objects being refused charitable status nearly a century ago. The Society is not a charity, and is still not confident that it is eligible to become one now, or even if the Bill become law due to doubts about the scale/degree of lobbying to change Government policy or the law to be permitted to registered charities. These issues are addressed at the end of this Submission starting at paragraph 12 and including Appendix 1.

Our Submission

3. The NSS welcomes the attempt made to rationalise and modernise the law of charities and the definition of further specific categories of charitable purposes in clause 2(2) of the draft bill -- particularly paragraphs (e) (citizenship or community development), (f) (arts, culture, heritage or science), (h) (human rights, conflict resolution or reconciliation or the promotion of religious and racial harmony or equality and diversity), and (i) (environmental protection or improvement).

R 1: We recommend that in 2 (2) (h) “the advancement of Human Rights”, "human rights" should be construed for this purpose to embrace all those rights enumerated in the European Convention of Human Rights and all activity directed against the absolute or relative disadvantage of citizens.

Charitable Purposes

4. Given the public benefit test, the NSS takes no issue with the inclusion of (b) -- "the advancement of religion" but it regrets that as it is at present drafted it perpetuates the privileged position which theistic world-views have enjoyed under the law of England & Wales. It is submitted that a modern state should be neutral upon the subject of its citizens' beliefs, and not take sides on behalf of those who favour one view over another. This equivalence is recognised in relation to education in the Human Rights Act. Yet the present position (unchanged if the draft bill becomes law) is that those who hold certain beliefs may enjoy tax privileges while propagating them, while those who hold other beliefs, equally intellectually respectable and equally socially responsible, have no such privileges. As a matter of illustration, it seems that (subject of course to satisfying the requirement of public benefit), voodooism would probably qualify under the "advancement of religion" test, but that a secularist or humanist organisation, if it is to qualify for charitable status, must seek to press its claims under some other head. This has led to absurd legalistic convolutions in the past and it is submitted that it is in any event in principle wrong that the state should favour one belief system over another.

5. The present paragraph (b) will (as it has in the past) lead to arguments in the courts about what constitutes "religion". Such arguments are fruitless and unnecessary: theology should be left to clerics, it is not a suitable subject-matter for lawyers, or indeed the courts.
For the Government to argue against such an amendment by illustrating that Humanists for example can qualify (and do already for “mental and moral improvement”) under the catch all clause 2(l) does not sufficiently satisfy the above objections. Having said that, for some categories to be stated specifically while others are only stated generally gives them no more status in law.
A refusal to change the wording reinforces the perception of the non-religious that they are less regarded as a group by the Government than are those with religious views.

R 2: We recommend either re-drafting Clause 2(2) paragraph (b) to read "the advancement of religion or other systems or philosophies of belief or ethics" or adding a further paragraph to Clause 2(2) to read "the advancement of systems or philosophies of belief or ethics."

6. There is, we submit, no danger that such a provision might open the door to frivolous applications or unworthy organisations: all applications would still have to satisfy the test of public benefit, since the presumption of public benefit is abolished by clause 3(2). In support of this submission, the committee is reminded that Article 9 of the European Convention speaks of religion or belief (our emphasis). There must be a danger that paragraph (b) of clause 2(2) of the Bill will be found to be contrary to the Convention if it remains as at present drafted. The Committee is also reminded that in the recent White Paper “Fairness For All: A New Commission for Equality and Human Rights”(Cm.6185) there are references to “people of different religions or beliefs (including those who do not have a religion or belief)” (our emphasis)

7. Attention is drawn to the amendment proposed in the Equalities Bill Clause 77 to the regulation 2(1) of the Employment Equality (Religion or Belief) Regulations 2003 (S.I. 2003/1660) (a substituted definition of “religion or belief”):

“(1) In these Regulations—
(a) “religion” means any religion,
(b) “belief” means any religious or philosophical belief,
(c) a reference to religion includes a reference to lack of religion, and
(d) a reference to belief includes a reference to lack of belief.”

Public Benefit
8. It is submitted that a statutory definition of "public benefit" would be useful. There is a lack of certainty in the present law, which has been made by the judges rather than Parliament. A very few examples:
in a faith healing movement of a religious nature a sufficient element of public benefit to render it charitable was presumed, or alternatively faith healing had become a recognised activity of public benefit (Funnel v. Stewart [1996] 1WLR 288);
gifts for the saying of Masses were prima facie charitable; there was a sufficient element of public benefit as long as all the Masses were said in public ... (in Re Hetherington [1989 2WLR 1094);
a trust “for the advancement and propagation of the teaching of socialised medicine” was not for the public benefit since it was political in nature (In re Bushnell [1975] 1WLR 1596);
on the other hand, a bequest to an expensive private hospital was charitable (Resch's Will Trusts [1968] 3WLR 1153).

9. It is submitted that it is for Parliament, not the judges, to say what is to the benefit of the public and that simple and accessible definition is needed.

R 3: We recommend a definition of “public benefit” such as: “an activity which may reasonably be expected to lead to the physical, mental or ethical improvement of a substantial number of people, and should not give rise to unlawful discrimination on grounds of gender, race, sexual orientation, or lack of means.”

Clause 2 (2) (c) / Clause 3
10. A likely amendment to be tabled will be to remove the public benefit requirement for advancement of religion which a complainant “considered to “lead to an increased level of State entanglement in the activities of religious organisations and carry a risk of unjustified differential treatment of religious communities already vulnerable because of unpopularity, novelty or small size”. We support the Government’s refusal to accept this in its response to the joint Bill Committee

R 4: We recommend that the Government continues to insist that the public benefit requirement is maintained for all categories including for the advancement of religion.

11. In addition to the Government’s own reasons, we consider the public benefit test to be essential as some of the religions could be potentially very harmful. Some of our members would prefer 2(2)(c) to be removed entirely, this would not be politically feasible.

e. "Political purposes"
12. The draft Bill says nothing about the extent to which a charity may engage in campaigning activities. It has always been the case in the UK, but not universally, that attempts to change the law are “political” and therefore not charitable. In our experience this continues to be the case in practice to some degree, and in some of the Charity Commission publications, e.g. “no organisation can be charitable if: . . . it is created for the specific purpose of carrying out political or propagandist activities ….” In another publication however, the Charity Commissioners, have expressed a far more liberal view upon the subject:

"‘By the very nature of their knowledge and social concern, … some charities are well placed to play a part in public debate on important issues of the day and to make an important contribution to the development of public policy. Others will invariably be drawn into such debate. It would be wrong to think that this cannot and should not happen: it is open to charities to engage in campaigning activities” (Charities Commission publication CC9).

13. The Charities Commissioners maintain that the above view is a representation of the current state of the law. If that is indeed the case, then it would be helpful if it were placed on a statutory basis.
14. It is therefore submitted that the views of the Charities Commission, as represented in CC9, should be made law, so that it is entirely clear how far charities can engage in campaigning and political activities. An extract from a Guardian article reproduced in the Appendix 2 reinforces our contention that considerable ambiguity remains in this area.

R 5: We recommend that the Charities Bill should be amended specifically to enable charities to campaign vigorously to change Government policy or the law where this is in accordance with their own aims and is for the public benefit, which as noted elsewhere, will need to be defined. This can be achieved without at the same time enabling the granting of charity status to political parties.

Appendix 1

1. The National Secular Society
a. ("NSS") was founded in 1866 by Charles Bradlaugh MP. Among its fundamental principles are the following:

• Secularism affirms that this life is the only one of which we have any knowledge and human effort should be directed wholly towards its improvement.
• Affirming that morality is social in origin and application, Secularism aims at promoting the happiness and well-being of mankind.
• Secularism demands the complete separation of Church and State and the abolition of all privileges granted to religious organisations.

b. The NSS is a campaigning organisation. Among its formal objects are:

• To promote a secular system of education.
• To originate, to watch over or to petition Parliament in relation to measures pertaining to the principles and objects of the Society.
• To initiate, organise and participate in campaigns for such reforms in the law as, in the view of the Society, would promote human welfare and enhance the quality of life.

c. The NSS has pursued these objects vigorously since its foundation in 1866.

2. The NSS and Charity.
The NSS does not have charitable status, but an associated organisation with similar aims did once apply for that status. It was refused in the celebrated case of Bowman v. Secular Society Ltd. [1917] A.C. 406 on the grounds that
“The abolition of religious tests, the disestablishment of the Church, the secularisation of education, the alteration of the law touching religion or marriage, or the observation of the Sabbath, are purely political objects. Equity has always refused to recognise such objects as charitable.”

The Society’s eligibility for charity status has in the past, we feel unfairly, been questioned on such political grounds. We believe it is possible to frame an amendment to include political/campaigning within campaigning organisations such as Amnesty, Greenpeace and ourselves without – unless this were desired – extending charitable status to political parties.

Appendix 2

Campaigning to change Government policy or the law

The Guardian May 19, 2004 (Part article only – especially relevant passages are in bold)

Benefit trap: Private schools can currently claim the tax breaks of charitable status, yet pressure groups can't. Tash Shifrin reports on whether the forthcoming charities bill will address this imbalance

Can you spot the odd one out among Amnesty International, Greenpeace and Eton College? Easy: only Eton, the famously exclusive public school for the privileged children of the ultra-wealthy, is a registered charity.

If you're surprised by this, you are not alone. As the government prepares to launch the biggest shake-up of Britain's charity laws for 400 years, research commissioned by Society Guardian suggests there is a huge gulf between what the public thinks are — and ought to be — charities, and the organisations that actually have charitable status.

This mismatch is important because the definition of what can be a charity is at the heart of the draft charities bill, expected next week. The draft bill is supposed to modernise charity law and, ministers are eager to emphasise, maintain public confidence in charities. But the signs suggest that, in the key area of who gets to be a charity (and who gets charity tax breaks), it will change little: well-known pressure groups will remain excluded, while posh private schools will keep their financial benefits.

Central to the bill will be a new legal definition of charity, based on a requirement to work for the "public benefit" in at least one of 12 key areas. The public benefit element is meant to be the trade-off for the advantages that registered charities enjoy.

The promotion of human rights and the advancement of environmental protection are expected to be charitable purposes, leading some to believe that the likes of Amnesty and Greenpeace could become charities. But sources close to those drawing up the draft bill suggest it is unlikely that this will happen.

The public might well be baffled by this. The SocietyGuardian research, carried out by thinktank nfpSynergy, asked 1,000 members of the public which of a range of well-known organisations was a charity. Only 10% realised that Amnesty International does not have charitable status. Amnesty was thought to be a charity by 57%, with 27% unsure. The poll also showed that 58% thought Greenpeace was a charity. Neither Amnesty nor the environmental campaigner can be registered charities as the law stands.

Just 6% of those polled thought Eton was a charity, which it is. They also failed to identify the Church of England as charitable, although legal definitions of charity have embraced religious organisations for centuries. Joe Saxton, director of nfpSynergy, says: "The things the public expects to be charities — the pressure groups — the law doesn't let be charities."

The barrier is that the law says charities cannot have political objects or be set up with the primary aim of securing or opposing any change in the law or government policy. This means that even if human rights and environmental protection are deemed charitable purposes in the new legislation, political restrictions could exclude pressure groups. And the draft bill, closely based on recommendations made by the Prime Minister's Strategy Unit in 2002, is not expected to change the law on political campaigning.

Greenpeace executive director Stephen Tindale says: "We don't expect that our core business of non-violent direct action is ever going to be charitable, so it's almost certainly not going to affect us in a top-line way.

"Campaigning to change a company's behaviour would be OK, but to change government policy is not OK." This means "the bit of Greenpeace people are most aware of - that is most visible - is not charitable in the UK." But it is in other countries, he says, citing the example of Greenpeace Germany. "It's arbitrary and irrational to say that, as soon as you start campaigning against the government, you've stepped over the line and aren't charitable any more."

Does the public object to the likes of Greenpeace and Amnesty becoming charities? Our survey suggests not. It asked if people agreed or disagreed with the statement: "I think charities should be able to campaign to change laws and government policies relevant to their work." Just 10% disagreed — only 1% strongly — while more than six in 10 agreed and around a quarter were unsure.

Forceful campaigning also met with public approval, with 72% agreeing or strongly agreeing with the statement: "I think charities should try to bring important issues to the public's attention — for example, through advertising — even if it means offending some people." Only 7% disagreed.

Saxton says: "The public clearly thinks pressure groups are charities and the public clearly supports charities being campaigning bodies." He favours a radical approach. "People who set out to change the world and make society a better place shouldn't have tax relief denied and be forced to be a company as if they are profit-making," he says.

Amnesty International UK's finance director, Melvin Coleman, says: "I think the government think they are taking a bold step. But they are also conscious of the need to maintain public confidence and trust. Our argument is that this is so far from public perception it also makes the public unclear what it's all about." There is "a mismatch", he says, between what the public thinks and the situation the bill will actually create.

Amnesty International hopes that the imminent charity guidance will define "the promotion of human rights" broadly enough to bring most of its activity into the charitable domain. If not, it will press for changes to the bill…

Whether the draft will change much before a final bill is published will be down to a parliamentary scrutiny committee chaired by former health secretary and leading Blairite MP, Alan Milburn, who is a vociferous advocate of charities delivering public services. It also includes George Foulkes MP, a doughty opponent of private schools. There could be a bit of a row.

The prime minister's Strategy Unit warned two years ago that the current definition of charity was "largely inaccessible to the lay person". Perhaps the test of the new legislation will be whether it offers a better match between the organisations and activities that the "lay person" feels are charitable and the cold, hard legal reality.