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[63] (though not in Ireland[64]). 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[65] 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[66] and Commonwealth[67] case law that it may be used in a broader sense, the Charity Commission have recently[68] adopted Dillon J's dictum in the South Place Ethical Society[69] 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, e.g. Jains and Buddhists[70], 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 21^st 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[71] 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.[72]

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[73], 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, e.g. 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'[74] 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[75]. 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 (i.e. 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[76]: 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, e.g. 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, i.e. the public at large or a section of the public (as defined by case law[77]). 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, e.g. 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), i.e. 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, e.g. 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 s 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[78], 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, e.g. 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.

Francesca Quint

11 OLD SQUARE

LINCOLN'S INN 9 July 2004