(back to preceding text)

29.  Slade LJ said in Broxtowe Borough Council, at p 334, that in his judgment a meeting of persons which takes place on private premises cannot be said to be “public” within the ordinary meaning of words unless members of the public, or of the particular section of the public most concerned, are given some notice that they will not be treated as trespassers or intruders if they seek to enter the premises and attend the meeting. The forms of notice, he said, could be many and various. In some cases even the exterior appearance of the building might be enough to indicate to members of the public that they will be welcome.

30.  In the present case however the respondent does not need to rely on the absence of a notice or on the appearance of the Temple from outside. To some it may seem like a large church or a cathedral. But there is no invitation to the public, or any section of it, to enter the Temple and worship there. On the contrary, the public, and even that section of the public most concerned because they are members of the Mormon church, are actively excluded from it. There simply is no question of members of the public in general being admitted to the Temple to participate in religious worship there. And only those Mormons whose worthiness to do so has been established after a searching private interview with the local bishop or branch president and stake president may receive a pass to enter it. The worship that takes place in the Temple on those conditions cannot, in the application of the Henning test, be said to be public religious worship.

31.  Mr Sumption sought to meet this obstacle by submitting, with reference to section 3 of the Human Rights Act 1998, that para 11(a) should be read and given effect to in a way that was compatible with article 14 of the European Convention on Human Rights read together either with article 9 or with article 1 of Protocol 1. For all the reasons that Lord Hoffmann has given I do not see this case as falling within the ambit of article 9. Those who are qualified to worship in the Temple are not prevented from manifesting their religion or their belief by the fact that it is subject to non-domestic rating. The legislation is not directed at Mormons because of what they believe in. It applies generally to all whose religious beliefs and practices prevent them from participating in public religious worship. It is easier to see the case as falling within the ambit of article 1 of Protocol 1, but the second paragraph of that article preserves the right of the State to secure the payment of taxes or other contributions or penalties. In my opinion Parliament’s decision as to the scope of the exemption was within the discretionary area of judgment afforded to it by that paragraph. As there is no sound basis for holding that the Henning test should be departed from, the Church’s argument that the Temple is exempt under para 11(1)(a) must fail.

32.  Mr Sumption’s alternative argument was that the Temple is a church hall, chapel hall or other similar building used in connection with a place of public religious worship within the meaning of para 11(1)(b). He cautioned against applying to the words “church hall, chapel hall or other similar building” concepts that are familiar to buildings that the established churches occupy. He submitted that the exemption ought in principle to be available to all religious faiths, not only to particular groups of Christians. I agree. But the Court of Appeal in Henning [1962] 1 WLR 1091 held that the Church’s London Temple was not a church hall, chapel hall or other similar building because it was a very sacred sanctuary. Mr Sumption said that this was a cursory decision and that it should not be followed because the sacredness of the building or the functions performed in it had nothing to do with the question whether the building itself was of the required character.

33.  I do not think that it is necessary to decide whether the Temple can properly be described as a church hall, a chapel hall or other similar building. This is because these are not the only words that appear in paragraph 11(1)(b). The key words, which colour the meaning of the entire paragraph, are the words “used in connection with". These too are words whose meaning has long been settled by decisions of the court in the context of exemption from non-domestic rating. The phrase appears in several places in paras 1 to 8 of Schedule 5 to the 1988 Act which deal with agricultural premises, and they appear also in para 9 which deals with fish farms. The wording of these paragraphs repeats what was to be found in the legislation which the 1988 Act replaced. In my opinion the meaning that has been given by the court to these words is sufficient to show that the Temple - even if it could be described as a church hall, a chapel hall or other similar building, taking those words on their own - does not fall within the exemption that is provided for by this paragraph.

34.  In W & JB Eastwood Ltd v Herrod (VO) [1971] AC 160 the question was whether buildings used for producing broiler chickens were agricultural buildings within the meaning of section 2(2) of the Rating and Valuation (Apportionment) Act 1928. They would have been exempt had it been possible to say that they were used “solely” in connection with the agricultural operations on the land together with which they were occupied, which was used for the production of barely which was converted into poultry food. Lord Reid said at p 168G-H that the key words were “used in connection with". He added that the ordinary usage of the English language suggested that the buildings must be subsidiary or ancillary to the agricultural operations, and that he did not foresee serious difficulty if the phrase was held to mean use consequential on or ancillary to the agricultural operations on the land which was occupied together with the buildings. At p 169H he said that the use of the buildings were in no sense ancillary to the agricultural operations on the land, as it was a large commercial enterprise in which the use of the land played a very minor part. Similar expressions of opinion are to be found in the speeches of Lord Morris of Borth-y-Gest, Lord Guest and Viscount Dilhorne.

35.  The application of Lord Reid’s explanation of the meaning of the phrase to the facts admits of only one answer in this case. As the Court of Appeal held in Henning, the sacredness of the building and of the functions that are performed there are decisive on this point. The President, having considered the facts, said that for members of the Church the Temple is the house of the Lord, the most sacred place on earth. The ceremonies that take place there are regarded by members of the Church as of profound theological importance. Its exclusivity, with access being accorded only to those with a recommend, is a reflection of its sacred nature and of the purpose for which access is required. I think that on those findings it would be a complete inversion of the facts to describe the Temple as ancillary or subsidiary to the Stake Centre.

36.  For these reasons I would hold that the Temple is not entitled to exemption under either para 11(1)(a) or para 11(1)(b) of Schedule 5. It is not suggested that any of the other buildings on the hereditament are entitled to exemption under para 11(1)(a).

37.  The only other building that was said to be entitled to exemption under para 11(1)(b) was the Patrons’ Services Building. It has three distinct areas. One is the foyer and day lounge. It is a reception area for visitors to the entire complex, although it has a particular role for those who are to visit the Temple. The second was described by the President as a shop. It sells religious books and leaflets, CDs and tapes relating to doctrinal beliefs and Temple clothing. The third area is the family history area, where forebears are identified for the baptism in the Temple of Patrons as proxies on their behalf. Mr Sumption said that the Court of Appeal’s conclusion that the building was not entitled to exemption under para 11(1)(b) was based on some very fine distinctions, bearing in mind that the way that Wesley House was treated in Trustees of West London Methodist Mission v Holborn Borough Council (1958) 3 RRC 86 showed that it would have been non-rateable if it had been situated within the Stake Centre.

38.  Uses that are ancillary to what goes on in the Temple are plainly of no assistance to the appellant, as the Temple is not a place falling within para 11(1)(a). As for the rest, I agree with Neuberger LJ in the Court of Appeal, para 41, that the building as a whole falls outside para 11(1)(b) as it does not have the characteristics of a church hall, chapel hall or similar building. I would reject Mr Sumption’s analogy with the West London Methodist Mission. It is no longer a reliable guide as to how buildings that contain distinct areas that are put to a variety of uses should be treated. The legislation is now qualified by the words “to the extent that". Their effect is to require an apportionment to be made between those parts of the building that qualify for the exemption and those which do not.

39.  The Patrons’ Services Building was also said to be entitled to exemption under para 11(2), as were the Missionary Training Centre, the Patrons’ Accommodation and the Grounds Building. The question whether they are entitled to exemption under this paragraph requires one or other of two tests to be satisfied. First, para 11(2)(a) requires them to be occupied for the carrying out of administrative or other activities by an organisation responsible for the conduct of public religious worship in a place falling within para 11(1)(a). Second, para 11(2)(b) requires them to be used as an office or for office purposes, or for purposes ancillary to its use as an office or for office purposes. It is not suggested that any of these buildings qualify for exemption under para 11 (2)(b). The words “to the extent that” which qualify para 11(2) would require an apportionment if a definable part of the building was occupied and used for these purposes. It need not be segregated from the rest of the building by walls or partitions, but it must be capable of being identified in the rating list for exemption as a separate hereditament. So long as this can be done, the question as to the method of apportionment is pre-eminently one for the valuation officer. No facts were put before the President to show that, in the case of any of these three buildings an apportionment would be appropriate. In this situation it will be sufficient if the building, albeit not exclusively, is nevertheless primarily occupied for a use which will qualify it for exemption under para 11(2)(a).

40.  The problem for the appellant does not lie in satisfying the opening words of para 11(2). It plainly is an organisation responsible for the conduct of public religious worship in the Stake Centre. But it needs to satisfy subparagraph (2)(a) if it is to obtain the exemption. The mere fact that there are links between what happens in these buildings and what happens in the Stake Centre, as Mr Sumption suggested, will not suffice. To be within this subparagraph, the use must be for administrative or other activities relating to “the organisation of the conduct” of public religious worship there. This cannot be said to be so in the case of the Missionary Training Centre. As the President put it, the missionaries are instructed as part of their training in the conduct of chapel services. But this is not the primary purpose of their training. In any event this is an activity which relates to how services in general are conducted, not to the organisation of the conduct of services in the Stake Centre or any other building that the appellant uses for public religious worship. Nor can it can be said of the use that is made of the Patrons’ Accommodation. It merely provides short-term living accommodation that is primarily used by members of the Church visiting the Temple.

41.  The Grounds Building houses machinery and equipment which is used for the maintenance of the grounds and all the buildings on the site. There is also a workshop area, a garage and a plant room which includes the air-conditioning plant for the Temple. It serves the whole of the site including the Stake Centre. But it is not suggested that a definable part of it used for serving the Stake Centre, nor is serving the Stake Centre the primary purpose for which it is used. In any event, as the President said, it is not used for activities that relate to the organisation of the conduct of public religious worship there. I agree with Mr Sumption that this conclusion turns on fine distinctions, because areas used for the same purposes which were within the Stake Centre and not sufficiently clearly identifiable for apportionment would qualify for exemption along with the rest of the building of which they formed part. But the valuation officer must take each building on the hereditament as he finds it, according to the way it is actually occupied and used by the ratepayer.

42.  In my opinion the facts of this case show that none of the buildings other than the Stake Centre satisfy the requirements of para 11 of Schedule 5 to the 1988 Act. For these reasons, together with those given by Lord Hoffmann with which I entirely agree, I would dismiss the appeal.

LORD SCOTT OF FOSCOTE

My Lords,

43.  I have had the advantage of reading in draft the opinions on this appeal prepared by my noble and learned friends Lord Hoffmann and Lord Hope of Craighead. I am in broad agreement with my noble and learned friends’ reasons for dismissing the appeal, and I, too, would dismiss it, but I want to add a few words of my own on each of the two main issues raised by the appeal. I shall for that purpose gratefully adopt my noble and learned friend Lord Hoffmann’s recital of the relevant facts.

44.  The first issue is whether the Temple is, for the purposes of paragraph 11(1)(a) of Schedule 5 to the Local Government Finance Act 1988 (as amended), “a place of public religious worship” and therefore exempt from liability for non-domestic rates. Mr Sumption QC, both in his written Case and in his oral submissions, has equated the concept of “public religious worship” in the 1995 Act with the concept of “public worship” appearing in the Act of Uniformity 1662, and which expression, he said, had replaced the expression “common and open prayer” in the Act of Uniformity of 1559. These Acts, he submitted, sought to regulate religious observance by conferring a monopoly of “public worship” on the Church of England and meant by “public worship” what he described as “congregational worship", as opposed to private or domestic worship which was left unregulated. He then moved to the Toleration Act 1688, which abolished restrictions on the freedom of worship of protestant dissenters provided that the worship did not take place in premises with “doors locked, barred or bolted". As Mr Sumption pointed out, the main object of these provisions was to allow religious worship by dissenters without thereby facilitating the convening of seditious assemblies. Restrictions on Roman Catholic worship remained, however, in place until the Roman Catholic Relief Act 1791 which, while removing the restrictions in general, contained provisions regarding assemblies behind locked doors similar to those which had been contained in the 1688 Act. The Places of Religious Worship Act 1812 followed the same pattern. It permitted, subject to certain conditions, premises to be used for religious worship but made it an offence to hold any kind of religious meeting with the doors barred so as to prevent members of the public from entering.

45.  In 1833 the Poor Rate Exemption Act introduced statutory rating relief for premises “exclusively appropriated to public Religious Worship” and which (other than Anglican Churches) had been “duly certified for the Performance of such Religious Worship according to the provisions of any Act or Acts now in force.” The “Act or Acts” then in force were the 1791 and 1812 Acts and it is easy to conclude that the words in the 1833 Act, “premises … appropriated to public Religious Worship", must have been intended to bear the same meaning as they would have borne in the 1791 and 1812 Acts, namely, premises for religious worship which did not take place behind locked doors and from which the public were not excluded.

46.  The prohibition of acts of worship behind locked doors remained on the statute books until the Acts of 1791 and 1812 were finally repealed in 1977. In the meantime the Act of 1833 had been repealed and replaced by section 7 of the Rating and Valuation (Miscellaneous Provisions) Act 1955, which was re-enacted by section 39 of the General Rate Act 1967. Both in section 7 of the 1955 Act and in section 39 of the 1967 Act, rating relief was allowed for places of “public religious worship” and there can be no doubt whatever, in my opinion, that “public religious worship” must have meant in these statutory provisions, as also it must have meant in the 1833 Act, religious worship that it was open to the public to attend.

47.  The same expression “public religious worship", is to be found in the Local Government Finance Act, 1988 and it cannot be supposed, in my opinion, that the legislature intended the expression to bear a different meaning from that which it had borne for over 150 years in the successive enactments in which that expression, or something similar, had been used. I agree with Lord Hoffmann that the Henning case [1964] AC 420 is conclusive against the appellants on this point. For me, however, the fascinating journey through the historical background on which Mr Sumption has taken your Lordships has confirmed rather than undermined the reasoning of the majority of this House in Henning and has dissolved the doubts that had been expressed by Lord Evershed in that case.

48.  The second issue is whether the withholding of rating relief from the Temple on the ground that since its doors are not open to the public it cannot qualify for relief as a place of “public religious worship", is in breach of article 14 of the European Convention on Human Rights and accordingly unlawful. It is common ground that in order to engage article 14 the discriminatory act complained of must fall within the ambit of one or other of the substantive articles of the Convention. The articles relied on in the present case, within the ambit of which the alleged discrimination is said to fall, are, first, article 9 and, alternatively, article 1 of Protocol 1.

49.  Lord Hoffmann and Lord Hope have expressed the view that the withholding of rating relief from the Temple does not fall within the ambit of article 9. I am uneasy about that conclusion because it is well settled that an allegedly discriminatory act said to be in breach of article 14 does not need to constitute an actual breach of the substantive article within whose ambit the act in question is said to fall. It needs simply to be within the ambit of the substantive article. The case-law as to when an act of discrimination, not being in breach of a particular substantive article, will sufficiently relate to that article in order to be capable of constituting a breach of article 14 does really no more than ask whether the act is within “the ambit” of the article. There is no precise yardstick; the requirement is left inherently, and perhaps unsatisfactorily, flexible. It seems to me, however, that the levying of taxation on a place of religious worship, or on those who enter the premises for that purpose, would be capable in particular circumstances of constituting a breach of article 9 and, accordingly, that it is difficult to regard the levying of rates on such premises as otherwise than within the ambit of article 9. I would prefer, therefore, to examine the second issue on the footing that the withholding of rating relief from the Temple does fall within the ambit of article 9 for article 14 purposes.

50.  If that is so, there is, as it seems to me, an element of discrimination that requires to be justified. The discrimination consists of the denial of rating relief for the Temple on the ground that, although a place of religious worship, it is not a place of public religious worship. No one who is not a Mormon, or who, although a Mormon, does not possess a “recommend” permitting him or her entry, can enter the Temple (see para 5 of Lord Hoffmann’s opinion). The “open doors” requirement in order to enable premises used for religious worship to qualify for rating relief discriminates, adversely to the Mormons, between premises used for religious worship that are open to the public and those that are not. If that is right, the discrimination requires to be justified if it is to escape being held unlawful.

51.  I would, for my part, unhesitatingly hold that the grant of rating relief to premises for religious services that are open to the public and the withholding of that relief from premises for religious services which take place behind closed doors through which only a select few may pass is well justifiable and within the margin of appreciation available to individual signatory states. First, states may justifiably take the view that the practice of religion is beneficial both to the individuals who practise it as well as to the community of whom the individuals form part, and that, therefore, relief from rating for premises where religious worship takes place is in the public interest. But, second, states may also recognise that, although religion may be beneficial both to individuals and to the community, it is capable also of being divisive and, sometimes, of becoming dangerously so. No one who lives in a country such as ours, with a community of diverse ethnic and racial origins and of diverse cultures and religions, can be unaware of this. Religion can bind communities together; but it can also emphasise their differences. In these circumstances secrecy in religious practices provides the soil in which suspicions and unfounded prejudices can take root and grow; openness in religious practices, on the other hand, can dispel suspicions and contradict prejudices. I can see every reason why a state should adopt a general policy under which fiscal relief for premises used for religious worship is available where the premises are open to the general public and is withheld where they are not. In my opinion, the withholding of rating relief from the Temple does not constitute a breach of article 14, whether considered in the context of article 9 or, for the same reasons, in the context of article 1 of the 1st Protocol.

52.  I would dismiss this appeal.

LORD CARSWELL

My Lords,

53.  I have had the advantage of reading in draft the opinions prepared by my noble and learned friends Lord Hoffmann and Lord Hope of Craighead. I agree with the reasons given by both noble Lords, and for those reasons I too would dismiss the appeal.

LORD MANCE

My Lords,

54.  I have had the benefit of reading in draft the speeches of my noble and learned friend, Lord Hoffmann and Lord Hope of Craighead. I agree with the reasoning and conclusions in both.