Introduction
1.1 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. The Institute seeks to provide a trusted, balanced forum where peoples of all parties, 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.
1.2 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 throughout the world that concerns religious freedom and religious organisation issues, including charities, and provides its opinion and guidance on such legislation to ensure that it complies with international human rights standards. The Institute works globally with government policymakers, religious leaders, business executives, academics, non-governmental organizations, and others in order to further and develop relationships among these parties. The Institute has sponsored the Inter-Parliamentary Conference on Human Rights and Religious Freedom for the last four years. The Conference, which will continue to be held annually, is composed of members of national and supranational parliaments from around the globe, with the participation of members of religious, academic, and policy-focused institutions. The Conference allows members to meet and address the issues of human rights and freedom of religion with common understanding and background.
1.3 The purpose of this submission is to address the Charity Commission’s interpretation of religion in the Charities Act 2006. In its Commentary on the Descriptions of Charitable Purposes in the Charities Act 2006, the Commission notes that “Belief in a Supreme Being is a necessary characteristic of religion in charity law which is why the criteria that we use include reference to a Supreme Being rather than a god”. However, the Commission also notes that “in the light of the clarification of the common law definition of religion contained in the Charities Act 2006, these criteria may benefit from further clarification. Following our Consultation on Draft Public Benefit Guidance we will undertake further consultations on the public benefit of particular types of charity, including religious charities. As part of that, we will consider what further guidance on the definition of a religious charity may be required”.
1.4 The Institute welcomes the Commission’s call for further clarification and agrees with the Commission’s statement that further guidance is required in light of the Charities Act 2006. The Commission’s current interpretation cannot be squared with the language in the Act broadening the definition of religion to accommodate “a religion which does not involve belief in a god”. The Charity Commission’s current position is also inconsistent with human rights standards. Such an interpretation contravenes the Human Rights Act 1998 (HRA) by allowing for discrimination against minority religious organizations in the application of charity law and must be remedied.
1.5 This submission also provides recommendations regarding the Commission’s application of public benefit requirements to religion.
Definition of Religion
2.1 The need to broaden the current interpretation of religion in charity is consistent with human rights principles at the heart of the HRA. There is 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.
2.2 As a definitive 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”. From now on, all legislation, including provisions in the Charities Act 2006 to widen the interpretation of religion or the concept of public benefit through the advancement of religion, will have to conform to the international human rights standards incorporated by the HRA. 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 Convention. In light of this practical policy mandate, the Charity Commission’s interpretation of the term religion must be inclusive enough to conform to international norms protecting freedom of religion and prohibiting religious discrimination.
2.3 As evidenced by numerous publications and official statements, 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 would be inappropriate in light of the clarification of the definition of religion in the Charities Act 2006 and would result in religious discrimination. More than 400 groups registered as religious organisations, including 144 Buddhist organizations, several groups of Jains, Hindu groups, Christian Scientists, Unitarian Churches and Quakers, do not meet the definition of religion test currently put forward by the Charity Commission in the Church of Scientology decision. This graphically illustrates why the current interpretation in the Charity Commission’s Commentary must be reformed in light of the Charities Act 2006.
2.4 The anomaly created by the Charity Commission’s current criteria on religion for religious groups such as Buddhists, Jains, Hindus, Christian Scientists, Unitarians, Odinshofs, and Quakers must be remedied. Otherwise, these groups are stigmatized as somehow inferior under charity law and their registration remains subject to question based on an antiquated definition that does not comport with principles of religious pluralism, tolerance and human rights.
2.5 There is no question that the Charity Commission’s current definition of religion criteria must be clarified in order to meet human rights standards. 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 all religions and that no distinction may be made between different kinds of belief. (Derby Report, section 1.4 at 7).
2.6 Likewise, other government ministries have noted the need for a broad definition of religion to comply with the principles of pluralism and religious freedom at the heart of Article 9 of the European Convention on Human Rights. For example, the Department of Trade and Industry, in its Explanatory Notes to the Employment Equality (Religion or Belief) Regulations 2003 observes:
“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. Equally branches or sects within a religion can be considered as a religion or religious belief, such as Catholics or Protestants within the Christian church, for example. The European Court of Human Rights has recognized other collective religions including Druidism, the Church of Scientology, and the Divine Light Zentrum.”
2.7 This expansive approach is consistent with the 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”. Similarly, the Court has emphasized the importance of “pluralism, tolerance and broadmindedness, without which there is no democratic society”. 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 European Court has also criticized and struck down measures that vest officials with “very wide discretion” on matters relating to religion. In criticizing broad discretion, the Court has 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.”
2.8 The most important feature of a definition of religion is that it not be discriminatory and that it treat all religions equally. The Charity Commission has an obligation under the HRA to eradicate discrimination between religions. The language in the Charities Act 2006 regarding the definition of religion was designed to remove the anomalies created by the Charity Commission’s restrictive and exclusive interpretation of religion. Indeed, in its consultation report, Private Action, Public Benefit, the Strategy Unit proposed 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).
2.9 It is vital that the Charity Commission apply the Charities Act 2006 in order to ensure that its interpretation of the term religion under charity law does not offend the principles of non-discrimination and equality, which form the foundation of the European Convention on Human Rights. In light of the HRA and the definition of religion provision in the Charities Act 2006, the Charity Commission must ensure that its interpretation of the term religion under charity law is sufficiently broad to encompass all religions. This will not be accomplished if the Commission were to adhere to a test that requires worship of a Supreme Being.
Public Benefit
3.1 The Charities Act 2006 removed the legal presumption that charities
established for the advancement of religion have purposes that are for the
public benefit. Public benefit is not defined in the Charities Act 2006
and it has specifically been left to the Charity Commission to consult on
the matter.
3.2 Consistent with the principles developed by the Human Rights Court in cases concerning freedom of religion and freedom from religious discrimination, it is imperative that the Charity Commission not develop public benefit requirements which vest wide discretion in government officials, are onerous, or discriminate between religions.
3.3 It is vital that the spiritual aspect of the activities of religions and religious groups and that spiritual growth and development is recognized by the Charity Commission as providing an important public benefit, not only to adherents of a particular religion but to society as a whole.
3.4 Moreover, while the provision of social services and community outreach efforts by religious organizations should be taken into account as a separate basis to find public benefit, religious groups should not be required to provide social services in order to demonstrate public benefit under the religious head. The systematic nurturing and promotion of constructive spiritual, ethical and moral values should suffice.
3.5 The European Court has stressed that even seemingly innocuous administrative action restricting the rights of minority religions operates as a “lethal weapon against the right to freedom of religion.” As the Human Rights Court has determined that the government may neither assess the merits of religious practices and beliefs under Article 9, nor favor some religions over others under Article 14, then the government surely may not apply charity law to provide privileges to some religious organizations while imposing hindrances on others based on assessments of the public benefit of such religious practices and beliefs.