Supplementary memorandum from the Charity
Law Association (DCH 331)
THE DRAFT CHARITIES BILL PUBLIC BENEFIT AND
THE ADVANCEMENT OF RELIGION
1. This paper is concerned with the effect
of those provisions of the draft Charities Bill which relate to
public benefit on institutions for the advancement of religion.
I have been commissioned to prepare it for the Charity Law Association.
ADVANCEMENT OF
RELIGION
2. It is clear that it is only the advancement
of religion, and not its practice as such, which is charitable.
A more or less evangelical approach seems to be required. Thus,
the purposes of a purely contemplative Order, which is entirely
inward-looking except in relation to its intercessory prayers,
have long been held non-charitable in England and Wales[15]
(though not in Ireland[16]).
In addition, it is clear that the advancement of a religion, or
indeed any belief system, which operates in a way which is morally
harmful to the community[17]
cannot be charitable.
MEANING OF
RELIGION
3. Some have suggested that there should
be a definition of "religion" in the new legislation.
The meaning of "religion" in charity law is unclear.
Despite other dicta in both English[18]
and Commonwealth[19]
case law that it may be used in a broader sense, the Charity Commission
have recently[20]
adopted Dillon J's dictum in the South Place Ethical Society[21]
case to the effect that religion requires both belief in a deity
and the worship of that deity. But there are obvious exceptions.
The adherents of some faiths, eg Jains and Buddhists,[22]
are not required to believe in a deity and yet those belief systems
are accepted as religions.
4. The advantage of not having a statutory
definition is that it enables the law to continue to develop from
case to case. In other words, Dillon J's 1980 definition was not
the first, and need not be regarded as the last word on the subject.
A future decision of the courts, the Charity Commission or indeed
of the proposed Charities Appeal Tribunal may assist in clarifying
the essential characteristics of religion in a way which matches
more closely the needs and aspirations of the 21st century.
5. There is also the possibility, in the
absence of the presumption of public benefit in relation to specifically
religious charities, the law may develop in such a way that religious
charities and other charities which operate for the improvement
of public morality[23]
will be treated in the same way, with the actual beliefs being
regarded as irrelevant so long as the moral code which the religion
or philosophy promotes is beneficial to society.[24]
6. On balance, however, the Association
recommends that, in the interests of certainty, a definition of
religion should be included in the Bill.
CHANGE IN
MEANING
7. The attitude of charity law towards religion
has changed significantly over the years. Interestingly, the advancement
of religion was not included in the list of charitable purposes
in the Preamble to the Charitable Uses Act 1601, although the
repair of church buildings is mentioned there. Subsequently, the
scope of the religion which it is recognised as charitable to
promote has been extended from the established Church to encompass
(i) Roman Catholicism, (ii) non-Conformist Christianity, (iii)
Unitarianism, (iv) Judaism and (v) Islam. Further, whereas as
it used to be thought that the religion in question had to be
monotheistic[25],
the Charity Commission have for many years recognised it as extending
to Hinduism, a faith which recognises gods which appear in many
manifestations.
8. The varieties of religious belief and
practice have continued to increase and develop. Whilst there
has been a fall in the number adhering to traditional forms of
religion, there seems to be a renaissance of interest in and concern
for spiritual values, and the emergence of a number of new sects
or cults, many of them originating in the USA. Some of these seem
beneficial or at least harmless, although whether all of them
are truly religions or philosophies is debatable. (Humanism was
held a philosophy, and its promotion charitable on educational
and fourth head grounds, in the South Place Ethical Society case.)
Others, including many which are insufficiently rational to be
classed as mere philosophies, appear more sinister. There is also
a nice question whether the beliefs of atheists, who believe positively
that there is no god, or agnostics, who claim not to be able to
know whether or not there is a god, are religious or philosophical.
9. At the same time as the increasing interest
in spiritual values, the use of religion as an excuse for violence,
terrorism and war has become widespread. Sectarian or religious
differences are routinely invoked to justify conflict and discrimination
in Northern Ireland, Israel/Palestine and in the attacks by Al-Qaeda
and other Islamic groups on Western targets. It is not usually
suggested that the advancement of the religion invoked by the
combatants (usually Catholicism, Protestantism, Judaism or Islam)
is not charitable, but steps have quite rightly been taken by
the Charity Commission, eg in relation to the mosque at Finsbury
Park, to prevent preachers from using their pulpits to preach
violence in the name of religion.
PUBLIC BENEFIT
10. Under the existing law it has been held
that, generally speaking, "any religion is at least likely
to be better than none"[26]
on the basis that the advancement of religion is beneficial to
mankind because it spreads knowledge of a moral code and thus
encourages good behaviour. Further, it has been held that the
practice of religion by retreatants or others who worship together
in private is beneficial to the community if they then return
to the everyday world, informed and guided by their beliefs[27].
In general, these arguments would still appear to hold good today.
11. Under the provisions of clause 3(2)
of the draft bill, it is no longer to be presumed in relation
to any particular purpose that the requirement for public benefit
is satisfied. It should be noted that it is the purpose (ie of
the particular charity) not the general description of the purpose
as set out in clause 2(2), that is referred to. Therefore, when
the question of charitable status arises before the court or the
Charity Commission, it will not be enough that there is nothing
to show that the religion in question is morally harmful[28]:
a more positive demonstration of public benefit will be required
in order to obtain recognition as a charity.
INTERPRETATION
12. In other words, the presumption which
is to be removed is not the presumption that religion can be expected
to be beneficial in a general sense, but the presumption that,
simply because a particular institution has been founded for the
advancement of religion, its purposes (and thus its work) are
therefore beneficial to society. Closer examination will be required.
13. It appears, however, that the Charity
Commission interprets these provisions of the draft Bill as not
having any dramatic effect on the law, and regard themselves as
still bound by previous decisions of the courts as to what constitutes
"public benefit". It is easy to see that the principle
which emerges from Neville Estates v Madden concerning
the effect on society in general of those who are subject to religious
teaching and discipline will continue to apply, but, bearing in
mind the proliferation of "fringe" religions, and the
emergence of extremist Islamic and other sects, it is submitted
that it will no longer be sufficient for the court or the Commission
to accept that any religion is better than none.
CLOSER EXAMINATION
OF PURPOSE
14. If the above interpretation is right,
it is nevertheless to be expected that the purposes of most charities
for the advancement of religions or denominations whose advancement
has already been accepted as charitable will be readily accepted
by the Charity Commission without requiring additional proof.
This is highly relevant in relation to the Church Commissioners,
which will no longer be an exempt charity, and the many excepted
charities, including places of worship, manses and church halls,
which will fall to be registered when the draft Bill becomes law.
15. Detailed examination of the relevant
teachings and practices will be required, on the other hand, where
it is proposed to register a charity for the advancement of a
new or unfamiliar religion or sect. Evidence that it benefits
the public should be provided to the Commission in precisely the
same way that evidence of such benefit is provided at present
in relation to a proposed charity for a "fourth head"
purpose. For example, when an organisation which was set up to
promote reflexology applied for registration as a charity, the
Commission required the promoters to produce expert evidence in
the form of reports from medical journals to show that reflexology
had a beneficial effect as a form of treatment.
16. It is submitted that, in view of the
monitoring process which will be undertaken by the Commission,
there will be no need to wait for the new religion to become well
established before deciding whether or not it benefits the public,
as the Commission argued when declining to register the Church
of Scientology. It should be quite possible for the Commission
to reach a decision based on the available evidence, in view of
the fact that the decision can always be revisited in the course
of monitoring the ways in which the charity actually carries out
its work, and the results it achieves.
17. There may indeed be a case for the removal
from the register of some existing charities for the advancement
of religion. The beliefs of Christian Scientists and Jehovah's
Witnesses, both of which are recognised by the Charity Commission,
include a rooted objection to the use of blood transfusions, even
for children who are unable to give or refuse consent. The Charity
Commission may wish to review the charitable status of those churches
and other institutions. The beliefs and practices of the controversial
Unification Church should also warrant further investigation.
So too should those of the Taylorite sect of the Exclusive Brethren,
whose belief in the doctrine of Separation from Evil may also
be seen as deleterious to society in that it prevents adherents
from associating with those who do not share their beliefs, eg
precluding them from joining Trades Unions or professional bodies
and sometimes, it is said, causing children to be excluded from
the family home.
MONITORING
18. All registered charities are to be subject
to monitoring by the Charity Commission, on what is intended to
be a systematic basis, to ensure that it is operating for the
public benefit. It is understood that the Commission plans to
work with groups of charities to establish "norms" by
which their continued public "character" will be assessed,
and that initially they will concentrate on those charities which
charge significant fees. In this connection it is thought that
different criteria will be applicable to different sub-sectors.
19. Most religious charities do not charge
fees for attendance at services, but very substantial sums of
money can be raised, for example in the form of membership fees
for synagogues, or through the system of tithing in some of the
more fundamentalist Christian churches. Even where contributions
from members of the congregation are entirely voluntary the moral
pressure to conform financially can be very powerful. In addition,
there is in some religious groups, unfortunately, ample scope
for disagreement, mismanagement or (in extreme cases) dishonesty
and corruption in the disposal of the funds. This is also an area
of religious activity which should warrant examination.
STATUTORY GUIDANCE
20. The view has been expressed by some
prominent charities such as Cancer Research UK and the NSPCC,
that statutory guidance should be provided for the Commission
to assist them, (and the new Charities Appeal Tribunal and the
court) both in determining charitable status and in assessing
the work of existing charities.
21. In the Association's view, it would
be unhelpful for the Bill to attempt to prescribe a test of public
benefit which was intended to apply to all charities, since it
is very much to be preferred that the law should continue to develop
incrementally. It might, however, be worth considering the publication
by the Charity Commission of informal guidance to indicate how
decisions in this area will in practice be reached.
22. Such a provision should not render every
(or even any) one of the stated considerations essential to compliance
with the requirement, and should include a general power to take
account of any other considerations which appear to be relevant.
The following factors, which are based on the principles derived
from case law and the practice of the Charity Commission, might
be included:
a. Whether the direct beneficiaries are members
of the public, ie the public at large or a section of the public
(as defined by case law). In relation to religious institutions,
the first question would be "Are services open to all, or
only to members, or believers, or to some other private class?"
Similar questions would then need to be asked about other services
and facilities, eg marriages, naming ceremonies and funerals.
In the case of membership institutions, the question would be
whether membership is in practice open to anyone desiring it (in
which case the public benefit test would be met) or whether it
depends on high fees and/or personal recommendation.
b. Whether there is an indirect benefit to
the public. In relation to religious charities, this could consist,
for example, of (i) the participation of adherents in the activities
of the general community (whether or not this expressly involved
"spreading the gospel"), (ii) the publication of religious
literature, films or other materials, (iii) the provision of educational
services or facilities for children or adults within the general
community (not just of the membership of the religion in question),
(iv) the provision of pastoral help to needy members of the general
community (not just of the membership of the religion in question)
and (v) the preservation and maintenance of historic buildings
or artworks which remain accessible to all. Where the direct beneficiaries
are not members of the public, it is submitted that the indirect
benefits should be proved to be substantial and significant if
the institution is to be capable of being recognised as a charity.
c. Whether the private benefits (if any),
ie those provided for individuals or members of a private class,
are merely incidental to the charitable purposes or so significant
as to be part of the purposes of the institution, which is therefore
not established for charitable purposes only. In relation to religious
institutions, there will usually be some functions and activities
which have to be confined to the membership, eg taking holy communion
in a Christian church or participating in the governance of the
charity is relation to virtually any religion. If, however, there
are material benefits, including, for example, the use of educational
facilities or access to buildings or artworks, which are so confined,
they should not be significant in relation to the benefits provided
to the public.
d. Whether there are any aspects of the teaching
or practice of the religion in question which are harmful to the
public, whether morally or otherwise. In relation to religious
institutions, any religion which (for example) advocated discrimination
or intolerance towards members of other religions or violence
as a method of self-expression could be regarded as harmful to
the public.
e. Any other consideration which is relevant
to the public interest. In relation to religious institutions
this might include questions whether the practices of the religion
(whether or not enshrined in its teachings) inhibited adherents
from participating normally in civic society, as in the case of
the Taylorites.
HUMAN RIGHTS
23. Charities for the advancement of religion
can be distinguished from other charities in that they are directly
affected by the Human Rights Act 1996. This guarantees, for both
individuals and organisations, freedom of thought, conscience
and religion (Article 9), including the freedom to manifest those
beliefs through worship, teaching, practice and observance, subject
to any legal limitations which are necessary in the interests
of public safety, to protect public order, health or morals or
to protect the rights and freedoms of others. In addition, individuals
and organisations are guaranteed freedom from discrimination,
whether on grounds of religion or other grounds, in respect of
the enjoyment of religious freedom (Article 14). The Charity Commission
is a "public authority" within the meaning of s 6 of
the Act of 1996 and must not therefore act in ways which is incompatible
with it.
24. The same will apply to the new Charities
Appeal Tribunal, which will also be classed as a "court or
tribunal" and will therefore in addition be subject to section
13 of the Act. Section 13 requires a court or tribunal to have
"special regard" to the importance of the rights conferred
under Article 9 on a religious organisation or its members when
making a determination of any question arising under the Act which
might affect their exercise. The Tribunal will thus be under an
even greater responsibility than the Commission itself to grant
importance to the right to exercise freedom of religion and belief.
INTERACTION OF
HUMAN RIGHTS
AND CHARITY
LAW
25. Religions can be divided into three
categories:
a. Religions, such as Christianity, Judaism,
Hinduism or Islam, whose advancement is both permitted by the
law of the land, protected by the Human Rights Act and encouraged
by charity law;
b. Religions, such as Paganism or Scientology,
whose advancement is permitted by the law of the land but not
encouraged by charity law (because of a lack of benefit to the
public); and
c. Religions, such as, perhaps, Satanism,
whose advancement is not permitted by the law of the land (because
their teachings or practices are regarded as positively harmful
to society) and which is therefore not protected by the Human
Rights Act or encouraged by charity law.
26. The effect of the proposed change in
charity law will potentially be to increase the number of religions
falling into the second category, where public benefit will have
to be proved. For example, the facts in Thornton v Howe
or even Re Watson, where the decision rested on the
presumption of public benefit, might lead to a different conclusion
in the future. Some would argue that the denial of charitable
status (and thus charitable tax and rates relief) to institutions
within the second category is a possible breach of their human
rights in that it is a species of discrimination against members,
contrary to Article 14 of the ECHR, in relation to their freedom
of religion under Article 9 and/or their property rights under
Article 1 of the First Protocol.
27. The Charity Commission has acknowledged
in its response to the Church of Scientology's application for
registration, that, generally speaking, to treat one religious
institution less favourably than another in relation to an application
for registration as a charity can amount to unlawful discrimination,
but no court has yet been asked to consider whether the advancement
of all religions permitted under human rights legislation should
be treated as charitable, and it is submitted that such a decision
is fairly unlikely. If it were the case, it would open the way
for organisations for the promotion of particular non-religious
belief systems, or purely philosophical convictions, to claim
a right to charitable status on the footing that they too are
covered by Article 9.
28. There is another, completely separate,
aspect to this. The advancement of human rights is included among
the descriptions of charitable purposes under the draft Bill.
Many religious bodies impose extremely strict rules upon their
members and do not allow them the freedoms which society guarantees
for them in civic life. Of course, so long as adherence to a religion
is voluntary there can be no real objection to such practices.
But if such requirements are taken to extremes, or imposed without
true consent, eg in the case of members' children, there is an
argument to the effect that the way the religious message is disseminated
in that particular organisation is not for the benefit of the
public because it denies individual freedom in a significant way
to its members.
July 2004
15 Gilmour v Coats [1949] AC 426 (HL).
See also Re Warre's Will Trusts [1953] 1 WLR 99. Back
16
Irish law has always recognised "pious uses" as charitable. Back
17
Eg if it inculcates "doctrines averse to the very foundation
of all religion and subversive of all morality": Thornton
v Howe (1862) 31 Beav 14. Back
18
In Keren Kayemeth Le Jisroel v IRC [1931] 2 KB
465 Lord Hanworth MR defined it as "the promotion of spiritual
teaching in a wide sense, and the maintenance of the doctrines
on which it rests, and the observances that serve to promote and
manifest it". Back
19
In Church of the New Faith v Comr for Pay-Roll Tax
(1983) 154 CLR 120 a judge of the High Court of Australia
defined it as "(a) belief in a transcendental being, thing
or principle; and (b) acceptance and observance of canons of conduct
in order to give effect to that belief." Back
20
For example in responding to the application for registration
by the Church of Scientology. Back
21
[1980] 1 WLR 1565. Back
22
Buddhism was recognised as an exception by the Court of Appeal
in R v Registrar-General, ex parte Segerdal [1970]
2 QB 687. Back
23
As in Re Price [1943] Ch 422, which held as charitable
a body which promoted the teachings of Rudolph Steiner. Back
24
It is worth noting that this is also the basis on which the promotion
of animal welfare has traditionally been regarded as charitable. Back
25
eg in Bowman v Secular Society [1917] AC 406. Back
26
Per Lord Reid in Gilmour v Coats. Back
27
ie in Neville Estates v Madden [1962] Ch 832, which
concerned Catford synagogue. Back
28
See Thornton v Howe (above) where the religious
writings of Joanna Southcott were found to be foolish but not
likely to corrupt the morals of adherents. It can be assumed that
the publication of those writings would no longer be charitable
under the provisions of the draft Bill. Back
|
