Filed under: News & Current Events, Politics, Social Issues, Equality
I haven’t done a full-on fisk for a few days, and with everything going on in the Middle East at the moment I really haven’t got the stomach to look in on the fifth horsewoman of the tabloid apocalpyse, Mad Mel Phillips, to see whatever it is that she’s shrilling on about at the moment; so I was quite pleased to come across this eminently fiskable piece of intellectual flotsam from a charity called the ‘Christian Institute‘, not least because charity law and the current Charities Bill is a bit of speciality of mine.
*There some more interesting information on the Christian Insitute and a little pat its having with the Gay Police Association over at MediaWatchWatch, at the moment - well worth a visit.
The background to my interest in all this is simply that one of the more creditable innovations in charity law that the Charities Bill is due to bring in is the extension of the ‘public benefit’ test to all charities and not just those registered under the previous catch-all category in which they claim to be ‘of general benefit’ to the community.
What this actually means is that where, previously, charities registered under the other three traditional ‘heads’ of charity - relief of poverty and sickness, advancement of education and advancement of religion, were simply assumed, in law, to benefit the public merely by their very existence, in future all registered charities will have to show that they really do operate for the public benefit - and not just new registrations either, as the Charity Commission are committed, at this stage, to conducting a review of all existing charities to see whether or not they shape up under the new legal framework.
This is not that an unusual thing for the Commission to undertake. A few years ago there was a review of Charity Register which looked, in particular, at Armed Forces charities and the charitable status of sports clubs, out of which a number of charities that were no longer doing anything of significant value wound up being deregisteredby the Commission. That’s just the way things go; the world moves on, society changes, and something that looked pretty charitable 50-60 years ago just really isn’t relevant or justifiable anymore.
It also ought to be said that this last review has its positives as well, particular when it came to the review of sports clubs in which the commission decided that simply promoting a particular sport on its own was not enough to justify charitable status, to register a sports club as a charity you had to be promoting sporting activities for a purpose; improving people’s general health is one of the more common ones that many clubs went for, for example, while another good one for sports clubs working with young people is to focus on the positive things they can learn through sport; leadership, teamwork, personal discipline, etc. all the good character-building stuff.
The upshot of all this was that a few old and outdated registrations were cancelled, but the sporting charities that stayed on the register reassessed the kinds of things they were doing and focussed more clearly on the real benefits that their activities provided with the result that we, the public, and especially the taxpayer started to get much better value for our money.
And yes, there is an element of this that does come to hard cash - one of the major perks that comes with charitable status is the favourable tax regime that registered charities operate under; no corporation tax on surplusses (technical point, charities don’t make profits but they can make a surplus, which is either put into reserves or reinvested to improve, enhance or sustain their work) plus the use of the gift aid system, which allows charities to boost their income by reclaiming basic rate income tax on the donations they receive.
Altogether charities get a pretty fair package of support from Her Majesty’s Treasury - and because it does come from the Treasury and, therefore, from all of us as taxpayers, even if we have no particular personal interest in the charity sector there is legitimate public interest we all share as taxpayers, so we all, in a small way, have a bit of stake in the new Charities Bill.
So, as someone who works in the not-for-profit sector, who has a particular interest in charity law and who appreciates how and where I have an interest in this issue as taxpayer, my general view of the proposed extension of the public benefit test to all charities is that its a perfectly reasonable thing for the government to be doing - in simple terms, if charities want to hang on to the tax breaks they get (and they do) then its entirely reasonable for us, the taxpayer, to expect then to be able to show that what they’re doing is for the public benefit. It’s a simple matter of quid pro quo.
As you might guess, however, the Christian Institute sees things a bit differently, as you’ll see below…
Removing the presumption that religion is a public benefit
The advancement of religion has always been presumed to be in the public benefit unless the contrary is proved. The Charities Bill removes this presumption. This is a massive change which in our view is likely to seriously damage religious liberties.
Nothing like starting with a good scare, even if there is absolutely nothing in the Charities Bill that would genuinely damage religious liberties. there are certain types of activity that some relgious groups may engage in that Charity Commission considers to be incompatible with charitable status but that does not stop religious groups carrying out such activities, it just means they have to make a choice about to continue with those activities or continue as a charity. They have a choice and its up to them how they decide to exercise it.
Under the existing statutory regime, the Charity Commission largely succeeded in regulating religious charities without passing judgement on their doctrine and ethics. But we sense that an entirely new approach is being adopted. The Commission’s position paper: Public Benefit – the Charity Commission’s approach is very secular in tone. It states that that public benefit must be assessed “in the light of modern conditions” and that keeping up with “modern society” is required if a charity is not to have its charitable status revoked.
All this is alarmingly subjective. The Charities Bill gives the Commission greatly increased powers to reject the applications of religious bodies or even to de-register an existing religious charity. The Commission should not adjudicate on religious beliefs. Removing the presumption creates the risk that it will. Religious Charities are in effect deemed to be guilty until proved innocent. There is nothing in the Bill to ensure that objective criteria are used.
In reality, when you’re trying to scare the faithful, there is nothing in the Charities Bill which would permit them to pass judgement on the doctrine and ethics of a religious charity, although in common law there is certainly a legal test as to whether a particular set of beliefs actually consitutes a religion in law, as this decision on an application for charitable status by the ‘Church’ of Scientology clearly demonstrates.
The ‘religion test’ is actually fairly straightforward inasmuch as it consists of two basic questions…
1. Is there a belief in a deity/supreme being (or beings), and,
2. Do the ‘religious’ practices of the group include a definable act of worship.
Taken together with the requirement that an applicant for charity status must seeking the ‘advancement’ of their religion, that is as much of a view as the Charity Commission is entitled to take in law.
The Charity Commission can, and has, therefore ruled on whether a particular set of beliefs and practices meet the common law requirement for being considered to be a religion but, certainly to my knowledge, has never one issued a ruling on a specific matter of doctrine.
However, a quick search for information on any previous dealings between the Commission and the Christian Institute did actually show a bit of previous form on the Institute’s part…
The Charity Commission has criticised the Christian Institute for breaching the terms of its charitable status in a letter sent this August. It has ordered the Institute to change its subtitle, "influencing public policy", and accused it of engaging in politics. Following complaints and a formal investigation, the commission has told the institute that its aims of furthering and promoting the Christian religion and the advancement of education in accordance with certain Christian doctrines and principles have not been obvious in its campaigns.
It criticised its 1998 publication Homosexuality and Young People for failing to articulate a Christian view. The Commission also criticised the publication Bankrolling Gay Proselytism: The case for extending section 28, which in isolation, it said, "could be viewed as overtly political for a charity publication". "It is not acceptable for a charity to declare particular purposes which stray from [its] stated objectives. Normally a charitable research body is required to analyse and assimilate all the evidence … there were occasions when the link between the charitable object and the publication was not always clear."
The Commission met the Institute in May last year after complaints that it was a political lobbying association for conservative Christian values, and that some of its publications were "of a political or propagandist nature".
What this story refers to is a complaint to the Charity Commission by GALHA (Gay and Lesbian Humanist Association) regarding its campaigning activities on political measures included the repeal of section 28 and the legalisation of adoption by same-sex couples and, in particular, a stunt in which it issued at card to its supporters that read "In the event of my death I do not want my children to be adopted by homosexuals."
The Commission, which did not formally investigate the Christain Institute, did not criticise it for its doctrinal view of homosexuality but for the manner in which it strayed from its charitable objects, which are…
1.THE FURTHERANCE AND PROMOTION OF THE CHRISTIAN RELIGION IN THE UNITED KINGDOM.
2.THE ADVANCEMENT OF EDUCATION.
…into some pretty obvious political activities of a kind which the Commission routinely consider and rule on - a few years back the human rights organisation, Liberty, ran into much the same problem with the Charity Commission as that which the Christian Institute faced in 2002 and were required by the Commission to draw a clear line between the activities of political campaign arm (Liberty) and its charitable arm (the Civil Liberties Trust)
To be absolutely clear, the Charity Commission has no power to rule on doctrinal matters, other than in the context of whether an applicant is genuinely a religious group, but it can (and does) rule on matters where doctrinal views are expressed in a political context that is incompatible with charitable status.
So far, then, every substantive point in the Christian Institutes ‘briefing’ has been inaccurate and based on errors in material fact… time to move on to the next bit…
Missionary minded charities
The Commission has made clear that, as well as applying the test to new applications, they will reassess whether existing religious charities should retain their charitable status.iii This could result in historic Christian charities losing their charitable status and their assets being confiscated and given to another charity.
A particular area of concern to us is that under the new thinking at the Commission proselytising or missionary organisations could lose their charitable status. Virtually all religious faiths seek to convince ‘non-believers’ of the merits of what they believe. For example, Evangelicals, Roman Catholics, and Muslims all have organisations which seek to spread their faith.
Proselytism is where one faith seeks to convert those of another faith. Government Minister, Lord Bassam of Brighton, was asked if proselytising activity would be deemed to be of public benefit. He seemed to suggest it would. However, Charity Commission officials have made clear that they do not take this view. If put into effect, this would mean the de-registration of charities such as ‘Jews for Jesus’.
Example: A Christian group exists specifically to promote the Christian faith to Jews. Elements within the Jewish community vehemently oppose its charitable status. The Charity Commission will be required to arbitrate on this dispute.
Is a charity that does nothing but proseltyze providing public benefit?
Personally I’d say no, but then I’m not the one making the decision on this question.
But lets’ turn this question around and look at it from another direction - should the taxpayer provides funds, in the form of tax concessions, to an organisation when all that organisation does is try to recruit new members?
Does that seem a reasonable proposition to you?
As things stand I doubt very much that many existing organisations will see their charitable status run aground on this particular question. For one thing, in most cases, religious groups will have much the same kind of ‘character building’ aspects to their work to rely on that the Charity Commission have already accepted as being valid in the case of sports clubs.
Next one has to consider the human rights aspects that will come into play - I suspect that the Commission will be reluctant to head too quickly into a face off over the application of Article 11 of HRA 1998, which covers freedom of religion.
And then, finally, any religious group that has a reasonable open relationship with th epublic at large and, particularly, which supplements is religious activities with a traditional Christian approach to ‘doing good works’ will inevitably find itself on solid ground.
If the Charity Commission does move on any particular groups in the manner that the Christian Institute suggests it will only be where a particular group is not open in it dealings with the public - the Commission is generally pretty watchful in applying the public benefit test for anything that looks like a private members’ club masquerading as a charity.
As a result, one of clearest effect that I would expect the application of the public benefit test to religious groups will have is to make it much easier for the Charity Commission to identify and remove from register and groups that operate as religious cults rather than legitimate ‘churches’ - and that is no bad thing at all as far as I’m concerned.
Again, the Institutes claims lack substance.
Conflict with modern values
Of course, the major religions are not ‘modern’ since they tend to base their fundamental beliefs on writings that are thousands of years old. Religious bodies often come into conflict with the values which pervade the modern world. They should not be told to ‘modernise’ their basic beliefs in order to comply with the new thinking at the Charity Commission.
In any case what is currently ‘modern’ soon becomes outdated. It is of the essence of religious belief that an appeal is made to timeless values. The following examples illustrate orthodox religious beliefs that are unlikely to be deemed ‘modern’.
A Roman Catholic educational charity which opposes birth control exists to produce material for sex education which is against use of condoms.
A Pentecostal adoption charity exists to place children with Christian families. It will not place children for adoption with unmarried or homosexual couples.
A group of Muslim doctors want to set up a medical ethics charity that advocates Islamic teaching against abortion, embryo experiments and IVF.
Helpfully, when it comes to trying to scare the faithful about the pernicious evils of ‘modern’ values, the Institute provides a number of examples to shhot down in flames.
Remembering that Commission have no authority to rule on matters of doctrine…
In the case of the Roman Catholic Educational Charity, this would be entirely free to produce its sex education materials provided that its avoids the mistake that the institute, itself, made with its anti-gay adoption campaign and steers clear of politicking. Such a charity is quite within its rights to produce materials that promote its values and ideas as long it does so in a reasonable fashion. In short it is entirely free to explain, in its literature, what the position of the Catholic Church is on the use of condoms.
Whether many schools would be happy to use that literature in the classroom is an altogether different matter.
In the case of the Pentecostal adoption charity, what would happen will depend very much on the exact form that the new regulations of discrimination on grounds of sexual orientation take. Unless these include a concession allowing such a charity to turn aware prospective parents on grounds of their sexuality then they would not be able to legally operate such a service in the manner that the Institute suggests.
Whether this creates problems in terms of its charity registration is another matter, not least because such a charity is not necessarily going to be registered as a religious charity as its primary purpose (facilitating adoptions) has nothing to do with advancing religion.
The question, itself, is a non-seqiteur - in fact a charity of this kind would almost certainly come under general benefit to the community under the existing Charities Acts and have to pass the publice benefit test anyway.
The same applies to our hypothetical group of Muslim doctors - a medical ethics charity is not a religious charity, per se, in that its not set up specifically to promote the Islamic faith, merely a limited aspect of that faith.
Again the question is a non-sequiteur.
In none of these three cases would the religious views on display necessarily compromise theoir application for charitable status, although I’d expect the adoption charity to come under a fair bit of scrutiny in terms of legal complience with the 2002 Adoption and Children Act and the 2005 Voluntayr Adoption Agencies (Amendment) Act.
Sorry folks - wrong again…
There is no sense that the current legal presumption in favour of religion is causing great difficulty. However, removing it will crack wide open the question of what is and is not state-approved religion. There are few precedents on what constitutes public benefit in the context of a religious charity precisely because the existence of a presumption has meant the courts have rarely had to consider the question. The change will lead to immense uncertainty both for existing religious charities and for new applications.
There is certainly no evidence to show that the current legal presumption in favour of religion is causing difficulties simply because that presumption precludes any real questions being asked about the legal status of religious charities.
All they are saying here is ‘we get a free ride and we want to keep it’ - their argument is based solely on seeking to maintain their current privileged status. For that reason alone it is right that religious charities should face a public benefit test if they wish to keep the tax breaks afforded to them by charitable status.
In Britain there is no question currently as to what constitutes state-approved religion - the only state-approved religions are the Anglican Church in England and Wales and, in Scotland, the Presbytarian Church. There is, as I mentioned earlier, a common law test of what constitutes a religion for the purposed of law, but that is not a matter on which the state (i.e. Parliament) has even taken a view - if it had the legal definition of religion would have been codified in statute law and not have been left to the common law.
There may be few precendents on what constitutes public benefit in the context of exclusively religious activities, because religious charities have never faced the public benefit test until now, but there is no shortage of precedent on what constitutes public benefit in general and therefore ample basis upon which the Charity Commission, which has judicial powers in respect of regulating charities, can develop relevant precedents, not least of which is the ruling on public benefit issued in the case of the Church of Scientology.
Creating scope for organised complaints
Religious belief, particularly related to sexual ethics, can be very unpopular in a secular world. Bashir Maan, Scottish Chairman of the Muslim Council of Britain, was recently forced out as President of the Scottish Council of Voluntary Organisations for stating moderate, orthodox Muslim views on sexual morality. Mr Maan was told to resign by the SCVO board for criticising plans to teach homosexual sex in the school curriculum.
In England many Christian charities have been subjected to campaigns of organised complaints to the Charity Commission. Opponents of religious groups routinely use complaints to the Commission as a campaign tactic. Dropping the presumption of public benefit gives them a major weapon in their armoury.
Having looked, I can find no evidence to support the assertion that many Christian charities have been subjected to campaigns of organised complaints to the Charity Commission - okay, so the Christian Institute found itself on the wrong end of a justifiable complaint from GALHA, which I covered earlier, so one wonders if its own experience is colouring its views on this matter.
As far as Bashir Maan is concerned, what he actually said in his letter that got him into difficulties was…
"These politicians, through certain elements of sex education in schools, are motivating young innocent children to indulge in premature sex that is resulting in teenage pregnancies."
He went on: "As if that were not enough, gay sex education is also being added to the sex curriculum in schools.
"This will encourage experiments of homosexuality among young children and add to the growing creed of homosexuality."
And really one cannot be surprised if you receive complaints after making comments like that - Mr Mann certainly didn’t seem surprised himself…
Mr Maan, who will be 80 in October, has been president of SCVO for nearly six years, and he said last night he was going to retire soon.
This has forced my hand. It is a pity it has to end in these circumstances," he said.
"I can understand the SCVO’s point of view; my views would bring me into conflict with the gay and lesbian organisations in their membership, so perhaps I should have retired before I opened my mouth. I did not intend to demean anyone."
*By the way, The Herald, from which those comments were taken, sets new standards in online shittyness, unsurpassed even by the Indy’s pay-per-view firewall, by trying to use a scripted routine in its pages to prevent you from copying the text of its articles. Not only is this blogger-unfriendly but its also a waste of time as its can be easily bypassed using by viewing the page source.
If one looks at the Charity Commission’s inquiry reports section on its website you will certainly find that faith groups attract their fair share of complaints and investigations, although I’ve not checked to how this relates, in terms of proportion to the number of actual religious charities in the overal charity sector - anything more than about 13-14% would indicate that religious charities are disproportionately likely to attract complaints and face investigations than other types of charity, although it difficult to get accurate figures as these figures would not include the complaints that Commission rejects every year for jurisdictional reasons.
Reference to the alleged threat posed by organised complaints has become pretty much a standard feature in the propaganda put out by, particularly, right-wing evengelical Christian groups whenever there’s a piece of legislation they don’t like the look of - much the same scare tactics were adopted in relation to Religious Hatred Bill and is being used right now in their campaign against the upcoming sexual orientation regulations.
What such claims invariably lack, however, is any hard evidence to back up the claim that such groups are really being are subjected to such organised complaint campaigns- although there is plenty of evidence from things like Jerry Springer: The Opera to show evangelical Christian groups using the very same tactics that they’re now complaining about.
This leads me to three basic observations.
1. This is blatant propaganda designed to scare the faithful and create/reinforce a siege mentality amongst their supporters.
2. Letter-writing campaigns have a long and distinguished history in open and democratic societies as a means of expressing legitimate concerns and the real test of the legitimacy of such tactics rests not in whether they’re adopted and used by a particular group in society but whether they encapsulate a legitimate complaint. To peddle scare stories like this, before any complaints have been lodged, seems nothing more than a pre-emptive strike designed to try and invalidate all complaints, however well founded, and is, therefore, thoroughly undemocratic, and
3. This quite obviously indicates that while they can happily dish it out, they can’t take it themselves.
What we have here, then, is a two-page briefing on an aspect of the Charities that contains several errors of fact, plenty of unsubstantiated and erroneous speculation, a bit of propaganda and not one single rational argument to support the contention that religious charities should continue to be enjoy an exemption in Charity Law from the requirement that they show that their activities provide public benefit in return for the tax concessions they receive from the Treasury.
What they want is their privileges for free adn without having to make any effort to justify them to the taxpayer, who ultimately pays for them…
… in which case, not only should the provisions in the Charities Bill extending the public benefit test to all charities stand as the Commission intends but, as far as I’m concerned, their introduction cannot come soon enough.
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