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Lord Renton: Before the noble Lord answers my noble friend, would he be so good as to point out which part of Clause 2 covers the first amendment moved by the noble and gallant Lord, Lord Craig of Radley, which states:
Lord Bassam of Brighton: Perhaps I can deal first with the point raised by the noble Lord, Lord Campbell of Alloway. I am not at the Dispatch Box to question the advice that we are given by the Ministry of Defence. It has had an entirely consistent position all the way through, supporting and aiding our consideration of the Bill.
I have made it plainand I think that the noble Lord, Lord Hodgson of Astley Abbots, agreesthat Clause 2 accurately lists the descriptions and headings of charitable purposes. The twelfth heading, paragraph (l), answers the noble Lord's point on service charities.
Lord Bassam of Brighton: I do not think that this is a trivial matter. I can understand fully the seriousness of the points that are being made. I do not believe that it is trivial; it is an important consideration.
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Baroness Carnegy of Lour: The noble Lord said that what the noble and gallant Lord wants could happen anyway under Clause 2(2)(l). Looking down the sweeping list of advancements which can be considered "charities", may I suggest that the advancement of peace would be consistent? Why does not the Minister simply include that if he is to continue doggedly defending the Government's position on such a small matter?
Lord Bassam of Brighton: Towards the end of my comments, I said that I thought that there was some scope for further discussion. Although I was not going to say from the Dispatch Box this afternoon that I would positively offer up an amendment, I am prepared for us at least to give some further small consideration to this before Report.
Lord Craig of Radley: I thank the Minister for his response and all Members of the Committee who have supported me in this amendment. From what the Minister said, I take it that he is prepared to give Amendment No. 1 further consideration and, on that basis, I am happy to withdraw it.
Amendment No. 9 is very much a probing amendment. I recognise that it is perhaps asking for too much, but at the same time I do not believe that we have covered the point that is really at issue: whether the public benefit test is applicable in the round to service non-public funds or has to be applied to every single one. Although at this stage I shall be prepared not to move Amendment No. 9, the position will need to be very much clearer before I am happy.
The noble Lord said: In moving Amendment No. 2, I should like to speak also to Amendments Nos 4 and 5 which are grouped with it. I say at once that I regretted that the suggestion made by the committee that considered the draft Billthat the question of charitable purpose should be divorced from the financial issue of tax exemptionwas not accepted by the Government. However, as that is the caseand obviously will not changethere is no escape from issues of social policy in the first part of the charity law debate.
Our amendment pursues the question of policy which would make one paragraph of the list that has been referred tothe descriptions of charitable purposesread, "for the advancement of religion or belief". There are three main headings to that argument. First, it was argued on the previous BillI need not repeat itthat the Bill as it stands, which refers to "the advancement of religion" fullstop, arguably does not comply with Articles 9 and 14 of the European Convention on Human Rights on the right to manifest one's religion or belief and to have that right secured without discrimination. Amendment No. 5 offers the Government a second thought on the question of cross-reference to the European Convention.
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Of course, it is true that our law has in many areas come to regard freedom of religion and freedom of non-religious belief on a par. In the recent Communications Bill, the recent employment regulations and, above all, in the Equality Bill, which is going through your Lordships' House at the same time as this Bill, a key concept is that there should be a ban on,
those words being explained as including lack of religion or lack of belief. In our submission, it is quite impossible that those words, which no doubt have a meaning, should not have the same meaning in this Billnot by reading across from Bill to Bill, but because the object of there being no discrimination in regard to religion and belief, as the Long Title of the Equality Bill states, is the same as the object being discussed in this amendment.
The gap in the new Charities Bill is in leaving the advancement of religion not to be balanced by the advancement of non-religious belief. Of course I understand, as I am sure my noble friend will say, that the list in Clause 2(2)(a) to (k), which has been referred to in previous debates, does not exclude things that are analogous, as we shall come to.
There is new doubt in the Bill which is relevant to the argument on Amendment No. 2. Earlier this year on 20 January, in debating the old Bill, my noble friend Lord Bassam set out the common law notion of religion, as opposed to non-religion, in a formula which was acceptable to the commission, the Government and, indeed, the courts (Hansard col. 963). I have sworn not to cite many court cases at this stage of the new Bill, but I shall refer to one, that of the South Place Ethical Society in 1980. Mr Justice Vaisey used precisely the same words as my noble friend did when he said:
My noble friend cannot advance that argument now under the new Bill, which has very many differences from the old Bill. The old definition is no longer applicable because a new clause or a new paragraph of Clause 2 in this Bill expressly includes within "religion" a religion that does not involve belief in a godone that does not have a supreme being. So that when it is saidand this is the second heading of our argumentthat "belief" is a vague term, that is now matched in the new Bill by the term "religion", which receives no definition. To say that something is included adds to one's knowledge, but in this case it makes for more doubt about what "religion" can include.
The same terms "religion" or "belief" are not only used with the same meaning in the Equality Bill; there is even a clause in the Equality Bill which expressly protects charities which benefit persons of a particular religion or belief. The parallel is quite clear.
In the new Charities Bill, non-religious belief is still excluded from mention in the list of descriptionsI say "descriptions" advisedlythat get you halfway to the automatic tax-exempt status. That exclusion is in itself a material discrimination. The treatment is not even separate and equal.
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It has also been argued that the term "belief" is unacceptable because some beliefs might be evil, irrational and offensive. Again, that argument belongs not to the test of charitable purpose but to the question which is now the second hurdle in proving you are a charitable purposethat of public benefit. Public benefit must now be proved, and we ask for no privilege from that. But offensive purposes would not normally be for the public benefit.
Another objection has been that "belief" might include political beliefs. The Charities Commission has helped enormously in its paper RR12. It recently told charities promoting human rights that charities may properly adopt campaigningit lists a number of things which are, broadly speaking, political methodsso long as these do not become "dominant". That perhaps is sufficient to exclude the argument on political beliefs, but Amendment No. 6 was meant to adopt that formula. However, because the amendment is defective in the form in which it appears, for which I am responsible, I shall not speak to it today.
More importantly, the Government have hitherto argued that all those arguments, even if they are wrong, are irrelevant, because an association to promote non-religious belief will always be charitable in practice under Clause 2(4), which was mentioned earlier. That is the so-called rag-bag clause, which validates any purpose
If a fund is expressly stated to be not for the purpose of promoting religious beliefs, but for the promotion of secular beliefs, which are not "within the spirit of" or "analogous to" religion, it is manifestly impossible for the commission, the court or anybody else to declare that it is. One has to look for something else to which it can be analogous.
Whether it is analogous to something else in the list (a) to (k) depends on the facts. In the 1980 case of the South Place Ethical Society, it was found that further purposes were analogous to education.
This is the kernel of the case. If such a purpose for the promotion of non-religious belief is always at risk of being found not to be analogous to any express description in the list, it will not be for "charitable purpose". That is a risk that "religious purposes", however they are defined, do not run. Those purposes proceed automatically across the first hurdle on to the second test of public benefit.
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