Wednesday, September 08, 2010

A failure of notification

A couple of weekends ago, in my post on 20 years of the BORA, I highlighted the role of the section 7 notification process in preventing violations of human rights. The existence of this section, and the political need to avoid notifications except when the government really means to violate the BORA, has meant that human rights are theoretically built into the policy development process. We now have extensive guidance for policy makers on the obligations imposed by the BORA, including checklists of what issues they need to consider, as well as a requirement that Cabinet Ministers certify their bills have been checked for consistency with the BORA. This means that the number of bills with prima facie breaches, let alone notifications, has progressively shrunk.

It is, however, an imperfect process. And where people don't notice something, Parliament can end up passing a bill which grossly violates the BORA, without any notice (and hence debate) at all.

One example which crossed my screen tonight is the Charities Act 2005, which includes in its definition of "charitable purpose"

every charitable purpose, whether it relates to the relief of poverty, the advancement of education or religion, or any other matter beneficial to the community.
This should have raised immediate red flags. Qualifying as a charity grants significant tax benefits. Granting that status on the basis of religion (a prohibited ground of discrimination in the Human Rights Act) is therefore a prima facie violation of the right to be free of discrimination affirmed in the BORA. It is not a measure taken for relieving past disadvantage (in fact, its precisely the opposite), and so not allowable under s19(2). And it is not a justified limitation - the advancement of religion is not a legitimate public purpose, let alone an important one; it thus fails the first limb of the test.

You would expect such a prima facie violation to be mentioned in the bill's BORA vet. It is not. The issue of whether granting charitable status for the purposes of the advancement of religion was discriminatory appears not to have been considered at all.

But it gets worse: the Charities Commission's major guide to interpreting the definition of "charitable purpose" is caselaw based on a law passed in 1601, with the result that it defines the advancement of religion in an explicitly discriminatory way [PDF]. So not only do we have discriminatory law; the public body charged with overseeing it actively discriminates as a result.

This is a fairly significant breakdown of the notification system, which has seen both a discriminatory law on our books and discriminatory actions by government. And that is not acceptable. This law needs to be amended, and quickly.