out with the old, in with the new: religion, charitable status and the charities act 2006

Out with the old, in with the new: religion,charitable status and the CharitiesAct 2006lest_129 619..650

Andrew Iwobi*School of Law, Swansea University

The enactment of the Charities Act 2006 is widely viewed as one of the most momentousevents in the recent history of English charity law, and the impact of the Act on thepre-existing law is still being debated. This paper inquires into the operation of the Actwithin the religious sphere. It seeks to explore the basis upon which charitable recognitionwas accorded within this sphere before the Act and to assess how far the law that waspreviously in force has been preserved, modified or rendered inoperative by the provisionsof the Act. Three fundamental dimensions of the legal regime governing religious charitiesare especially relevant to this inquiry. The first dimension encompasses the elusive questfor the meaning of religion in the charitable sense. The second focuses on the long-standing requirement that religious purposes must be beneficial to the public in order to becharitable. The third is concerned with the human rights implications of conferring orwithholding charitable status within the religious domain. Each dimension is examined inturn with a view to providing an insight into the complexities and difficulties inherent in thepre-existing law and the extent to which these have been addressed by the reformscontemplated by the Act.

INTRODUCTION

According to Dunn and Riley ‘the development of charity law in England and Waleshas struggled with controlling the boundaries of its remit in a cohesive fashion’.1 Theage-old struggle to demarcate the boundaries of charity in the legal sense and to finda workable basis for sustaining the binary divide between the charitable and thenon-charitable has continued unabated into the new millennium. This struggle hasculminated in the enactment of the Charities Act 2006 (the Act), which containsprovisions dealing with the legal meaning of charity and the attributes that render apurpose charitable. These provisions have rightly been described by Quint as its ‘mostsignificant sections from the point of view of the substantive law’.2

In the short period since its enactment, the Act has generated a considerableamount of interest in scholarly circles. Harding describes its advent as ‘an event of

* I would like to thank Baris Soyer for his wise counsel. I would also like to thank the twoanonymous reviewers of this paper for their helpful comments.1. A Dunn and CA Riley ‘Supporting the not-for-profit sector: the government’s review ofcharitable and social enterprise’ (2004) 67 MLR 632 at 634.2. F Quint ‘Charitable provisions’ (2008) 92 NLJ Charities Supplement Spring/Summer 6.These sections are found in Pt I of the Act. In summary, s 1 provides that a charity is aninstitution established for charitable purposes; s 2 specifies the requirements that must bepresent for a purpose to be charitable and stipulates, inter alia, that the purpose must be for thepublic benefit; while ss 3 and 4 elaborate on the operation of the public benefit requirement.

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great significance for the law relating to charitable trusts’;3 while Hackney points outthat it is widely believed that it ‘heralds a new dawn not only in the administration ofcharities but also in the substantive content of the law’.4 Although various spheres ofcharitable activity are likely to be affected to a greater or lesser degree by the newlegislative regime, this paper is primarily concerned with religious charities. Forcenturies, charity and religion were inextricably intertwined5 and, although charity hasnow become a largely secular enterprise, a vast array of religious charities continue tooperate in modern-day Britain.6 The paper examines the basis upon which charitablerecognition was accorded within the religious subsector before the Act came into forceand assesses how far the law that was previously in force has been preserved, modifiedor rendered inoperative by the provisions of the Act.

Under the law in force before the enactment of the Act, in order for a given beliefsystem to be adjudged charitable within this subsector, it had to be shown, first, thatit was a religion within the meaning of charity law and, secondly, that the public wouldbenefit from its advancement. A perusal of the scholarly literature reveals that, as faras these two requirements were concerned, the pre-existing law was perceived to behighly problematic. With regard to the first requirement, English charity law has, forcenturies, been engaged in an elusive quest for the meaning of religion in the chari-table sense. From one century to the next, key episodes in British history have wroughtsignificant changes in the nation’s religious complexion. These changes have beenaccelerated by the rapid transformation of Britain into a diverse, heterogeneousmulti-faith society in the latter half of the twentieth century. It is against this ever-changing landscape that the law has had to determine which belief systems and formsof religious expression should be accorded charitable recognition. The first dimensionof the present study will consider how the courts and the Charity Commission, whichare the chief custodians of English charity law, approached this complex and highlycontentious task before the Act came into force and will explore the ramifications andimplications of the novel definition of religion included in the Act.

In addition to having to decide whether a given belief system is a religion, thecourts and the Charity Commission have to determine whether sufficient benefitaccrues to the public from trusts and organisations established for religious purposes.Blanco signifies that in applying the public benefit requirement to religious charities,the courts ‘on occasions acted on the basis of not very coherent criteria’.7 As a result,the operation of the requirement in the religious sphere in the period before the 2006Act was characterised by significant anomalies and inconsistencies and generated a

3. M Harding ‘Trusts for religious purposes and the question of public benefit’ (2008)71 MLR 159 at 160.4. J Hackney ‘Charities and public benefit’ (2008) 124 LQR 347.5. See CEF Rickett ‘Charitable giving in English and Roman law’ (1979) 38 CLJ 118 at 122;CR Barker ‘Religion and charity law (1999) 5 Juridical Review 303 at 304. GE Dal Pont‘Charity law and religion’ in P Radan, D Meyerson and RF Croucher (eds) Law and Religion:God, the State and the Common Law (London: Routledge, 2005) p 220.6. There are currently approximately 29,000 registered charities within the religious sub-sector. See Charity Commission’s Guidance The Advancement of Religion for the PublicBenefit (December 2008) p 3, available at http://www.charity-commission.gov.uk/Library/publicbenefit/pdfs/pbreligiontext.pdf. For ease of reference, this Supplementary Guidance onReligion is hereafter termed the Supp.G(R).7. M Blanco ‘Religion and the law of charities’ (2006) 8 Ecc LJ 246 at 262. See alsoT Haddock ‘Charitable trusts for the advancement of religion: judicial rejection of metaphysicalbenefits and the emergence of public interaction’ (2001) 7(2) Charity Law and Practice Rev 151.

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great deal of controversy. One of the paramount objectives of the Act was to reformthe public benefit regime not only within the religious subsector but across the entirecharitable spectrum. The second dimension of this study will therefore examine theapplication of the public benefit requirement within the religious domain before theAct came into force and consider the extent to which the law in this area has beenaffected by the reforms initiated by the Act.

Finally, a leading human rights scholar has commented that from the mid-1990s theUK has been increasingly rights-conscious.8 True to this assertion, scholars beganevincing a keen interest in the interconnections between charity law and human rightslaw during this period and this interest intensified with the advent of the HumanRights Act 1998. The impact of the emerging human rights regime came underparticular scrutiny within the religious subsector and legitimate concerns wereexpressed regarding the compatibility of certain aspects of the law governing religiouscharities with various rights enshrined in the European Convention for the Protectionof Human Rights and Fundamental Freedoms 1950 (the Convention) and protected bythe Human Rights Act 1998. This issue dominated the deliberations of the JointParliamentary Committee on Human Rights during the legislative process thatculminated in the enactment of the 2006 Act. The third dimension of this study willfocus on these concerns and will also examine the extent to which any possibleviolations of these rights have been remedied by the provisions of the 2006 Act.

1. THE DEFINITIONAL DIMENSION: THE ELUSIVE QUEST FORTHE MEANING OF RELIGION

(a) The definition of religion under English charity law before the 2006 Act

Religion is of immense importance within the legal environment and the law is oftendeployed as an instrument for safeguarding religious interests. Edge has identifiedseveral fundamental assumptions that underpin the law’s involvement in religiousaffairs.9 In the first place, religious interests are often considered to be more profoundthan other interests and their legal recognition will often be a matter of great signifi-cance to religious communities, especially in plural societies in which the interests ofminority or unpopular religious communities might require particular protection.Secondly, from the standpoint of religious adherents, their religious identity and thebeliefs and practices dictated by their faith often assume such a degree of importancein their lives that they are liable to suffer special harm if these are not accommodatedby the law. Thirdly, it is widely (though not universally) accepted that religiongenerally has a beneficial impact which often permeates the wider community and thatreligious pursuits should thus be encouraged by the law since they promote theinterests of society. On the strength of such assumptions, the international legal orderhas sought to guarantee religious rights and freedoms, while state legal systems havebestowed special exemptions and privileges on institutions and belief systemsadjudged to be religious.

Any attempt to devise a basis for determining whether a given belief system is areligion or not is bound to be problematic, not least because religion, as Greenwalt

8. D Feldman Civil Liberties and Human Rights in England and Wales (Oxford: OxfordUniversity Press, 2nd edn, 2002) p 77.9. PW Edge Religion and Law, An Introduction (Aldershot: Ashgate, 2006) pp 6–8.

Out with the old, in with the new 621


points out, ‘is hardly a straightforward concept’.10 The magnitude of the problem isaptly summed up by Cumper, who observes that:

‘religion is a term that would be extremely difficult to define: a workingdefinition would need to be flexible enough to satisfy a broad section of worldfaiths yet also sufficiently precise for practical application in specific cases. Sucha balance would be extremely difficult to strike.’11

In seeking to strike this balance, it is important to ensure that religion is not under-defined such that belief systems that are widely accepted as religions are excluded.12

It is, however, equally important, as Hall points out, that any definition adopted shouldbe ‘sufficiently narrow to avoid the open-ended compendium of historical experience,the fraudulent and beliefs rooted in social justice, ethics and morals.’13 This means, ineffect, that religion should not be over-defined such that belief systems which do notidentify themselves or would not ordinarily be regarded as religious are potentiallyincluded.14

Bradney depicts charity as a virtue which most religions consider desirable andobserves that ‘the law of charity favours religion not only by advantaging that virtuebut also by treating as charitable the very pursuit of religion itself – hence theemergence of advancement of religion as one of the main heads of charity’.15 Inconsidering whether an organisation or trust advances religion, the courts and theCharity Commission have traditionally focused on its purposes (or aims as they arenow called). As Donovan J explained in United Grand Lodge v Holborn Borough

10. K Greenwalt Religion and the Constitution: Free Exercise and Fairness vol 1 (Princeton:Princeton University Press, 2006) p 124.11. P Cumper ‘Freedom of thought, conscience and religion’ in D Harris and S Joseph (eds)The International Covenant on Civil and Political Rights and United Kingdom Law (Oxford:Clarendon Press, 1995) p 359. Many judges and scholars have sought to define religion from alegal standpoint and a useful overview of their differing approaches can be found in L VickersReligious Freedom, Religious Discrimination and the Workplace (Oxford: Hart Publishing,2008) pp 13–22.12. Such under-definition was evident, for instance, in Davis v Beason 133 US 333, 341–342(1890) (where the US Supreme Court insisted that a belief system would be religious, only ifits teachings were in conformity with the moral outlook of ‘all civilised and Christian coun-tries’); as well as in English charity law (which until the enactment of the 2006 Act, virtuallyequated religion with monotheism).13. CG Hall, ‘Aggiornamento: Reflections upon the contemporary legal concept of religion’(1996) 27 Cambrian Law Review, 7, 9.14. The tendency towards over-definition is epitomised by the stance adopted by Murphy J inthe Australian case of Church of the New Faith v Commissioner for Payroll Tax (1983) 154 CLR120 at 150, where he signified that any organisation which claimed to be religious and offereda way to finding meaning and purpose in life would be treated as a religion. A similar tendencywas evident in United States v Seeger 380 US 163 (1965) and Welsh v United States 398 US 333(1970), where the US Supreme Court signified that from the theistic standpoint, the ultimateconcern of religion, which gave meaning and orientation to the lives of adherents, was a beliefin God and concluded that any belief occupying in the life of its possessor a place parallel to thatoccupied by belief in God in the minds of theists would be treated as a religion.15. A Bradney Religions, Rights and Laws (Leicester: Leicester University Press, 1993)p 120. The advancement of religion was the third of the four Pemsel heads, so called becausethey were outlined by Lord MacNaghten in Commissioner for the Special Purposes of theIncome Tax v Pemsel [1891] 1 AC 531 at 583. The other three heads were the relief of poverty,the advancement of education and other purposes beneficial to the community.



Council, these purposes would be deemed to advance religion if they served ‘topromote it, to spread the message ever wider, to take some positive steps to sustain andincrease religious belief’.16

In order to determine whether a trust or organisation advances religion, Englishcharity law has had to confront the intractable problem of what constitutes religion inthe charitable sense.17 The answer to this question has varied from age to age. Beforethe Reformation, Roman Catholicism which was considered the one true religionmonopolised the charitable arena.18 Catholicism was ousted from this position duringthe Tudor era when the Church of England emerged as the established Church and, asa consequence, became ‘the sole recipient of legal favour’.19 During this period, thelaw dictated that the only religious purposes that would be deemed charitable werethose connected with the Anglicanism.20 Gifts or trusts for the advancement of otherreligions were illegal and the cy-pres doctrine operated to ensure that their funds wereapplied in furthering the purposes of the established church.21 By the late seventeenthcentury, the religious antagonisms that fuelled the Reformation had begun to abate andlegislative measures were gradually introduced to liberalise the charitable regime infavour of other denominations and faiths.22 In keeping with the new spirit of toleration,the courts, when determining which religious belief systems were charitable, adopteda semblance of neutrality and studiously refrained from passing judgment on thevalidity or merits of the creeds, doctrines and dogmas embraced by followers of thesebelief systems.23

The courts found it fairly easy to maintain such a neutral stance in disputesconcerning the charitable status of well-established Christian denominations that havesubsisted on British soil for centuries. Thus, for instance, in Gilmour v Coats,24 LordReid stated that he could ‘find no basis for drawing a distinction in the matter ofcharity between the established Church and other Churches [such as the RomanCatholic Church]’. The courts have occasionally ventured outside the relatively safebounds of mainstream religion to invoke the mantra of neutrality in favour of less

16. [1957] 3 All ER 281 at 285. This principle has been expressed slightly differently by theCharity Commission in the Supp.G(R), above n 6, pt C3, which states that ‘in general, to“advance” religion means to promote or maintain or practice it and increase belief in thesupreme being or entity that is the object or focus of the religion’. See also Annexe B, whichcontains a fairly comprehensive array of examples of ways in which charities can advancereligion.17. In R v Registrar General, ex p Segerdal [1970] 2 QB 697 at 708, for instance, Winn LJquite aptly alluded to the difficulty of seeking to ascribe a meaning to ‘the chameleon word“religion” or “religious” ’.18. Blanco, above n 7, at 252–253.19. CE Crowther Religious Trusts: Their Scope and Development (Oxford: George Ronald,1954) p 13.20. See G Jones History of the Law of Charity 1532–1827 (Cambridge: Cambridge UniversityPress, 1969) p 15. See also P Luxton The Law of Charities (Oxford: Oxford University Press,2001) p 125; H Picarda The Law and Practice relating to Charities (London: Butterworths, 3rdedn, 1999) pp 72–73.21. Harding, above n 3, at 161–162.22. This process began with the enactment of the Toleration Act 1688, which paved the wayfor religious purposes associated with other Protestant denominations which believed in theHoly Trinity to be treated as charitable. In subsequent centuries, such toleration was extendedto other Christian denominations and to Judaism. See further Segerdal, above n 17, at 707.23. Crowther, above n 19, p 19.24. [1949] AC 426 at 458.



orthodox religious movements operating on the margins of Christianity.25 Such judi-cial neutrality was also extended to Judaism, which despite relentless persecution andperiodic attempts at banishment had become well established over the centuries.26 Inseveral early cases, the courts accepted that bequests for purposes connected withJudaism could be charitable.27 More recently in Neville Estates v Madden,28 a disputeconcerning the charitable status of a Jewish synagogue, Cross J reiterated that ‘Asbetween different religions the law stands neutral, but it assumes that any religion isat least likely to be better than no religion’.

The professed judicial inclination towards religious neutrality and tolerance hashowever been put under considerable strain by two recent trends which have intro-duced a new layer of complexity to the task of determining which forms of religiousexpression should be deemed charitable. First, a sizeable proportion of the migrationinto Britain in recent decades has been from regions where Christianity is not thedominant religion and these migrants have maintained their own religious beliefs andpractices. Secondly, there has in this period been a marked decline in the conventionalchurch-going population, with the resultant vacuum often being filled by a plethoraof alternative movements and belief systems displaying certain attributes normallyassociated with religion.

Neutrality and tolerance have not been uppermost in the minds of the judges whendealing with the changes in the religious landscape occasioned by these trends.Indications had already been given in nineteenth century cases such as Mitford vReynolds29 and Yeap Cheah Neo v Ong Cheng Neo,30 that the courts were less willingto accommodate bequests that sought to promote Oriental religions. As Smith pointsout, the latter case in particular, ‘seems to have given rise to the misconception thatonly a monotheistic religion would suffice’.31 This stance was thereafter perpetuatedin later cases beginning with Bowman v Secular Society Ltd.32 Here, Lord Parker,having noted that there was no express authority on what constituted religion in thecharitable sense, went on to declare that ‘a trust for the purpose of any kind ofmonotheistic theism would be a good charitable trust’.33 This refrain was taken up inSegerdal, where Lord Denning declared that religious worship meant ‘reverence orveneration of God or of a supreme being . . . It need not be the God which theChristians worship. It may be another God, or an unknown God but it must bereverence to a deity’.34 In the later case of Re South Place Ethical Society,35 Dillon Jwent down the same route as in Segerdal, in proclaiming that religion ‘is concernedwith man’s relations with God’ and that two essential attributes of religion are ‘faithin a god and worship of that god’. It is noteworthy that in South Place, the issue before

25. See, eg, Thornton v Howe (1862) 31 Beav 14; Re Watson [1973] 3 All ER 678; Re Le CrenClarke [1996] 1 All ER 715.26. G Godfrey ‘The judges and the Jews’ (2003) 7 Ecc LJ 50.27. See, eg, Straus v Goldsmid (1837) 8 Sim 614; Re Michel’s Trust (1860) 28 Beav 39 andRe Braham (1892) 36 Sol Jo 712.28. [1962] Ch 832 at 853.29. [1825–41] All ER 331.30. LR 6 PC 381.31. P Smith ‘Religious charities and the Charities Act 2006’ (2007) 9 Charity Law andPractice Rev 57 at 60.32. [1917] AC 406.33. Ibid, at 449.34. Segerdal, above n 17, at 707.35. [1980] 1 WLR 1565 at 1571.



the court revolved around the meaning of ‘religion’ and not ‘religious worship’. It istherefore arguable that the definition of religious worship in Segerdal had no directbearing on what constituted religion and need not therefore have been invoked inSouth Place, especially since it had not been explicitly acknowledged in earlier casesthat religion necessarily entailed worship. In line with this reasoning, Edge andLoughrey opined that the view that religion required an element of worship was notsupported by strong line of authority;36 while Robilliard contended that Dillon J’sinsistence that worship was essential to religion imposed an additional (and arguablyunnecessary) restriction on what might be considered religious in the charitablesense.37

The Charity Commission has signified that it ‘interprets and applies the law as tocharitable status in accordance with the principles laid down by the courts’.38 Thisbrief was construed literally in three notable decisions concerning the religious stand-ing of Paganism, Scientology and Spiritualism, respectively, in which the Commis-sioners adopted the same essentialist content-based approach as the judiciary. In thefirst decision, the Commission revoked the charitable status of the Carmarthen-basedPagan Hospice and Funeral Trust (PHFT) and stated in its explanatory letter to thePHFT, that:

‘Paganism has not been recognized as a religion in the courts . . . I wouldrefer you in particular to . . . Segerdal . . . and Re South Place . . . for discussion asto what is religion in charity law. The essential requirements are belief and publicworship of a Deity with commensurate public benefit. Paganism is not recognizedas falling within these criteria.’39

The second case (the Church of Scientology (CoS) case),40 concerned an applicationby the CoS for registration as a charity. The Commissioners explicitly repudiated themore liberal variant of the content-based approach expounded by Brennan J andMason ACJ of the Australian High Court in the New Faith case,41 and reaffirmed thatbelief in and worship of a supreme being remained essential characteristics of religionunder English charity law. The Commissioners did in fact find that the CoS professedsuch a belief, even though this had not been fully developed, and held that this wassufficient for the purposes of English charity law. Turning to the element of worshipthey held, on the authority of Segerdal, that this involved conduct indicative ofreverence or veneration of the Supreme Being and could manifest itself in activitiessuch as submission, praise, thanksgiving, prayer or intercession. They declined to

36. PW Edge and JM Loughrey ‘Religious charities and the juridification of the CharityCommission’ (2001) 21 LS 36 at 40.37. St. J A Robilliard Religion and the Law (Manchester: Manchester University Press, 1984)p 63.38. See Charity Commission Framework for the Review of the Register of Charities (1998)Annex D.39. See Edge and Loughrey, above n 36, pp 45–46. See also PW Edge Legal Responses toReligious Difference (The Hague: Kluwer, 2002) ch 11. The PHFT had been registered in July1995 but less than a year later its charitable status was revoked on the ground that the originalregistration had been mistaken and it was removed from the Register of Charities in 1998.40. CoS case, available at http://www.charity-commission.gov.uk/Library/registration/pdfs/cosfulldoc.pdf.41. See above n 14, at 136. According to Brennan J and Mason ACJ, ‘for the purpose of thelaw, the criteria of religion are two-fold: first belief in a supernatural Being, Thing or Principle;and second, the acceptance of canons of conduct in order to give effect to that belief’.



register the CoS on the ground that its two core activities (auditing and training) didnot constitute worship as thus conceived, since auditing was more akin to therapy orcounselling, while training was more akin to study. The third decision involved anapplication for registration by the Sacred Hands Spiritual Centre.42 Following thesame approach as in the CoS case, the Commissioners concluded that spiritual healingand mediumship which were at the core of the centre’s services satisfied the dualrequirement of belief in a Supreme Being and worship, and that it could therefore beregistered as a religious charity.

Various commentators had in recent years objected to this tendency to cling sotenaciously to a definition of religion whose essential attributes were so closelyassociated with monotheism. As Dal Pont put it, ‘[t]he multicultural nature of presentWestern society dictates that the law cannot ignore non-Western concepts of religionfor charity law purposes’.43 Similar concerns were expressed by Edge and Loughreywho observed that the law of religious charity was heavily biased in favour of theJudaeo-Christian faiths and commented unfavourably on what they perceived as ‘aninarticulate drawing upon the traditions of a subset of religious systems in order toformulate a requirement applicable to all’.44

This unsatisfactory state of affairs was compounded by the ambivalence displayedby the courts even in cases such as Segerdal and South Place, in which they concededthat the Buddhist faith, versions of which do not espouse a belief in and worship of asupreme being, might nevertheless qualify as religious. They also affirmed in Varsaniv Jesani45 that Hinduism with its pantheon of deities was a religion in the charitablesense. The stance adopted by the Charity Commission was no less contradictory sincea perusal of the Register of Charities reveals that in addition to the judicially sanc-tioned exceptions that had been made for Buddhism and Hinduism, other polytheisticand non-theistic belief systems such as Sikhism, Jainism and the Baha’i faith had alsobeen accorded charitable recognition by the Commission.46 The fact that the judgesand Charity Commissioners resorted to these exceptions severely compromised theintegrity of the narrow essentialist definition of religion favoured by English charitylaw.

(b) The impact of the Charities Act 2006 on the definition of religion

The foregoing analysis discloses that the traditional definition of religion propagatedby the courts and the Charity Commission was deficient in two material respects. First,their tendency to associate religion with monotheism, which was the hallmark of thisdefinition, did not reflect the religious diversity of contemporary British society, withits array of polytheistic and non-theistic belief systems. Secondly, the law in this areawas thrown into a state of considerable confusion by their willingness to treat belief

42. Available at http://www.charity-commission.gov.uk/Library/registration/pdfs/sacreddecision.pdf.43. Dal Pont, above n 5, p 228.44. Edge and Loughrey, above n 36, p 46. Similarly, the Charity Law Association pointed outthat ‘defining religion by reference to worship of a deity automatically create[d] a bias againstEastern religions’. See Charity Law Association Response to the Draft Charities Bill (MainReport), available at http://charitylawassociation.org.uk/wparty040727.html.45. [2003] All ER (D) 56 (Jun).46. See Edge and Loughrey, above n 36, p 45; Blanco, above n 7, at 259; Barker, above n 5,at 308–309.



systems that did not conform to this monotheistic ideal as religions in the charitablesense. The magnitude of the problem was acknowledged by the Joint ParliamentaryCommittee on the Charities Bill, which reported that various organisations ‘hadpointed out difficulties with the present definition and its requirement of worship of adeity, leading to the anomaly that some organisations already registered under thehead of the advancement of religion . . . [did] not meet the current legal definition’.47

As a way out of the definitional morass into which the courts and the CharityCommission had blundered, this Joint Committee proposed the formulation of astatutory definition of religion that would encompass both polytheistic and non-theistic belief systems. The government initially rejected this proposal on the groundthat a host of multi-deity and non-deity groups had already been registered as religiouscharities and that this constituted clear evidence they already satisfied the existingcharity law definition of religion.48 It seems that the government did not really thinkmatters through when it concluded that the proposed definition would serve no usefulpurpose. The fact that some polytheistic and non-theistic belief systems had beenregistered as religious charities manifestly contradicted the formal pronouncements ofthe judges and the Commissioners, which had identified belief in and worship of asupreme being as essential attributes of religion. The government might have beenexpected to appreciate that the broader definition advocated by the Committee wouldgo a long way towards resolving these contradictions. Undeterred by the governmentresponse, Parliament included the advancement of religion as the third of 12 specificdescriptions of charitable purposes enumerated in s 2(2) of the Act and went on toprovide in s 2(3)(a) that ‘ “religion” includes (i) a religion which involves belief inmore than one god, and (ii) a religion which does not involve belief in a god’.

In his assessment of s 2(3)(a), Smith suggests that it did not make significantinroads into what had traditionally been regarded as religion, but rather served toclarify what in fact had already been accepted by the courts (and the Charity Com-mission).49 The chief reason why such clarification was urgently required was that therecognition of polytheistic and non-theistic belief systems as religious charities by thejudges and Commissioners, had not completely dispelled the lingering doubts createdby their equation of religion with monotheism. It thus seems that the main value ofs 2(3)(a) lies in the fact that it has extricated English charity law from the confusionengendered by the historical link between religion and monotheism.

Even though s 2(3)(a) sought to ensure that religion was no longer under-definedunder English charity law by establishing that polytheistic and non-theistic beliefscould be religious, this new definition is itself so imprecise and open-ended that iteasily lends itself to the possibility of religion being over-defined under the currentstatutory regime. The difficulty inherent in such an over-definition has been eloquentlyenunciated by Penner who observes that:

‘We may be living in a new age of faith, but . . . the problem with the deathof God is not that people believe in nothing but that people will be believe inanything, crystals, dolphins, the summer solstice, heaven only knows what

47. See Report of the Joint Committee on the Draft Charities Bill (September 2004) para 50,available at http://www.publications.parliament.uk/pa/jt200304/jtselect/jtchar/167/167.pdf.48. See Government Reply to the Report from the Joint Committee on the Draft Charities BillSession 2003–2004, p 5, available at http://www.archive2.official-documents.co.uk/document/cm64/6440/6440.pdf.49. Smith, above n 31, at 60.



nonsense. It will be interesting, perhaps appalling to see what “non-deity” faithsmight now be registered as charities.’50

In response to this difficulty, the Charity Commission has sought to elucidate theskeletal definition in s 2(3)(a) by identifying four fundamental characteristics that arematerial in determining whether a belief system is a religion for the purposes ofcharity law.51

The first of these characteristics is a belief in ‘a supreme being or entity’. Inconsonance with s 2(3)(a), the object or focus of this belief may be ‘a god (or gods)or goddess (or goddesses), or supreme being, or divine or transcendental being orentity or spiritual principle’. An example of the type of situation in which thisformulation might have a discernible influence on the pre-existing state of the lawwould be if the occasion were ever to arise for the Charity Commission to reconsiderits stance on paganism as a religion. In his illuminating account of the legal responseto paganism, Edge explains that theology is not absolutely central to pagan beliefs andthat it is not possible to characterise paganism as inherently theistic, let alone mono-theistic.52 As seen above, it was for this reason that the Commission decided to revokethe charitable status of the PHFT. Edge’s study does however disclose that modernpaganisms tend to display certain key features, including a propensity towardsworshipping both male and female deities and the recognition of a Goddess (such asMother Earth). When account is taken of this important dimension of paganism, aprobable consequence of the express inclusion of polytheism and non-theism ins 2(3)(a), coupled with the Charity Commission’s reference to ‘belief in a god (orgods) or goddess (or goddesses)’, is that it may now be considerably more difficult tojustify the stance that belief systems founded on paganism do not fall within thecharitable meaning of religion. If this supposition is correct and paganism comes to beregarded as a religion in the broader sense contemplated by the new statutory defini-tion, an organisation such as the PHFT may now be able to claim that it exists for theadvancement of religion under s 2(2)(c) of the Act.

The second characteristic is ‘a relationship between the believer and the supremebeing or entity by showing worship of, reverence for or veneration of the supremebeing or entity’. The reference to worship, reverence and veneration in this contextseems somewhat incongruous given that s 2(3)(a) focuses exclusively on belief andmakes no reference whatsoever to worship and the like. Before the enactment of the2006 Act, reservations were expressed about the ruling in South Place that religionrequired an element of worship and it was suggested that this stance was not supportedby a strong line of authority.53 Such considerations did not however deter the CharityCommission from repeatedly asserting that worship was a vital component of religion.Parliament might therefore have been expected to lay this matter to rest by formulat-ing a definition of religion that would specifically address the place of worship in thegeneral scheme of things. This would have been particularly useful in view of the factthat in cases such as the CoS case, the Charity Commissioners, having determined thatthe applicant for charitable registration did in fact profess a belief in a Supreme Being,nevertheless concluded that it was not a religion on the ground that its centralactivities, namely auditing and training, did not involve worship. If the Charity

50. JE Penner The Law of Trusts (Oxford: Oxford University Press, 5th edn, 2006) p 77.51. These characteristics are outlined in the Supp.G(R), above n 6, s C2 and Annexe A.52. Edge, above n 39, at 353.53. See the text accompanying nn 36–37 above.



Commission had not proceeded to flesh out the definition in s 2(3)(a), it might havebeen arguable that since worship was not an element of this definition, an applicationby the CoS for charitable registration under the new dispensation would no longer failon this particular ground. It is, however, noticeable that the reference to worship as oneof the characteristics of religion in the Supp.G(R) is more nuanced than the concept ofworship under the pre-existing law with its unmistakably monotheistic undertones. Onthe one hand, the Guidance speaks of worship in terms of activities or practicesshowing reverence for or veneration of a supreme being or entity. On the other hand,it recognises that certain religions do involve belief in a divine or transcendental beingor entity or spiritual principle without necessarily venerating or worshiping a supremebeing and acknowledges that such religions employed other concepts in lieu ofworship. As far as the Church of Scientology is concerned, it remains to be seenwhether its central activities of auditing and training will now be viewed moresympathetically under the more liberal conception of worship that emerges from theGuidance.

The third characteristic is that the belief system must have ‘a certain level ofcogency, coherence, seriousness and importance’. On the face of it, this seems aneminently sensible formula for filtering out belief systems that are worthy of recog-nition as religions from those that are not. A difficulty with this approach is that it sitsuneasily with the long-standing insistence of the courts that it is not their prerogativeto pass judgment on the value or merits of the creeds and doctrines of particularreligions.54 This should not, however, be seen as an insurmountable obstacle since thefactors mentioned in this formulation have usefully been adopted as objectiveminimum criteria, initially within the European human rights regime and latterly inthe area of employment discrimination.55 The operation of these criteria was recentlyreviewed by the House of Lords in Williamson,56 where Lord Nicholls of Birkenheadreaffirmed that any religion or belief seeking protection under the Convention mustpossess an adequate degree of seriousness and importance and must also be coherentin the sense of being intelligible and capable of being understood. With regard to thislatter criterion, he however emphasised that too much should not be demanded since‘religion typically involves belief in the supernatural [and] . . . is not always suscep-tible to lucid exposition or, still less, rational justification’. He also pointed out thatbecause the language of religion ‘is often the language of allegory, symbol andmetaphor’ those who profess particular religious beliefs ‘cannot always be expected toexpress themselves with cogency or precision’. He therefore suggested that these

54. See Thornton v Howe, above n 25; Re Watson, above n 25 and Neville Estates v Madden,above n 28.55. Under European human rights jurisprudence, it is well established that cognisance will betaken of these criteria when determining whether a ‘religion or belief’ or a ‘religious orphilosphical conviction’ should be afforded protection under Art 9 of the European Conventionfor the Protection of Human Rights and Fundamental Freedoms 1950 and Art 2 of Protocol 1to the Convention, respectively. See Campbell and Cosans v UK (1982) 4 EHRR 293 and R(Williamson and Others) v Secretary of State for Education and Employment [2005] UKHL 15,[2005] AC 246. By the same token, the definition of ‘religion or belief’ contained in theexplanatory notes to the Employment Equality (Religion or Belief) Regulations 2003, SI2003/1660 encompasses these criteria. See DTI Explanation of the provisions of the Employ-ment Equality (Sexual Orientation) Regulations 2003 and Employment Equality (Religion orBelief) Regulations 2003, para 12, available at http://www.berr.gov.uk/files/file29350.pdf.56. Ibid, para 23.



threshold requirements should not be set at too high a level, especially where thiswould be unduly prejudicial to minority beliefs. Provided a similarly sensitive andnon-judgmental approach is adopted by the Charity Commission, there seems to be noreason why cognisance should not be taken of these threshold criteria in decidingwhether a belief system ought to be accepted as religion in the charitable sense.

The fourth characteristic is that the belief system ‘must promote an identifiablepositive, beneficial, moral or ethical framework’. The absence of such a frameworkgreatly diminishes the likelihood that a belief system will have a beneficial impacteither on its adherents or in the public domain. This characteristic is therefore inex-tricably linked to the requirement that the public must benefit from the advancementof religion which is the focus of the next section.

The third and fourth characteristics apply equally to religious belief systems andnon-religious belief systems based on atheistic, agnostic or humanistic principles.This means, in effect, that under the scheme contemplated by the 2006 Act, it is thepresence or absence of the first two characteristics that distinguishes religious beliefsystems from such non-religious belief systems.57 Prior to the Act, the latter were notregistrable under the third Pemsel head but were sometimes accorded charitablerecognition under the fourth, if they were found to promote the moral or spiritualwelfare or improvement of the community – as happened, for instance, with the SouthPlace Ethical Society.58 The fourth head has been superseded by the residual provisionin s 2(2)(m) of the Act and non-religious belief systems are now charitable by virtueof this provision.59

2. THE PUBLIC BENEFIT DIMENSION: FROM PRESUMPTION TO PROOF

(a) Overview of the public benefit requirement

The emergence of a statutory definition that has broadened the meaning of religionnow makes it less likely that charitable status will be refused on the basis that a givenpurpose is not religious. If charitable status is to be withheld it is more likely to bebecause the purpose does not benefit the public.60 Several notable scholars havealluded to the difficulties inherent in the modern day operation of the public benefitrequirement. Freedland, for one, asserts that few would regard the formulation of therequirement and the manner in which it has been applied as wholly coherent andsatisfactory.61 This point is made even more explicitly by Warburton, who echoesFridman’s comment that ‘The concept of public benefit is intangible and nebulous; its

57. This can be discerned from a combined reading of the Supp.G(R), above n 6, s B8and the Commission’s Draft Supplementary Guidance on Public Benefit and the Advancementof Moral or Ethical Belief Systems (September 2008), ss C1 and C3, available at http://www.charity-commission.gov.uk/Library/publicbenefit/pdfs/pbmor.pdf.58. Re South Place, above n 35. Other organisations espousing non-religious beliefs whichwere also registered as charities before the 2006 Act include the International Humanist Trust,British Humanist Association and the Rationalist Association.59. See Draft Supplementary Guidance on Public Benefit and the Advancement of Moral orEthical Belief Systems, above n 57, s C2.60. See Harding, above n 3, at 160.61. M Freedland ‘Charity law and the public/private distinction’ in C Mitchell and S Moody(ed) Foundations of Charity (Oxford: Hart, 2000) pp 111 and 121.



effects can only be represented as variable and unpredictable. Imprecision has resultedin illogical and capricious decisions, sometimes impossible to reconcile’.62 Warburtonexpresses regret that five decades after this statement was made, confusion still reignsin this area of law.

As Luxton indicates, public benefit has two meanings in the charitable context – itcan mean that the relevant purpose must benefit the public or it can mean that thesection of the community to benefit must be sufficient.63 When used in the first sense,the emphasis is on the beneficial aspect of the public benefit requirement. As Sanderssuccinctly puts it, this aspect can be encapsulated in the simple proposition that inorder for a purpose to be charitable it must ‘do good’.64 As the law stood before the2006 Act, a presumption emerged, at the conceptual level at any rate, that alleviatingpoverty, advancing education and promoting religion were conducive to the commongood and inherently beneficial to the society.65 Consequently, it was not necessary toseek to convince the Charity Commission or the courts of this fact every time they hadto deal with applications or disputes falling under the first three Pemsel heads.In recognition of this, Lord Wright declared in National Anti-Vivisection Society vIRC,66 that ‘the test of benefit to the community goes through the whole of LordMacNaghten’s classification, though as regards first three heads, it may be prima facieassumed unless the contrary appears’. The presumption of public benefit, as thusconceived, operated ‘at the level of the abstract purpose’.67

When employed in the second sense, the emphasis is on the public aspect of thepublic benefit requirement. According to Harding, the focus here is on ‘the extent towhich and in what sense the purposes of a trust must be public in character.68 It waspublic benefit in this sense that Lord Wrenbury had in mind when he stated in Vergev Somerville,69 that ‘[t]o ascertain whether a gift constitutes a valid charitabletrust . . . [an] inquiry must be made whether it is public – whether it is for the benefitof the community or an appreciably important class of the community’. As Sandersexplains, this inquiry focuses on whether the class of persons who are the primary

62. GHL Fridman ‘Charities and public benefit’ (1953) 31 Can B Rev 537 at 539 as quoted inJ Warburton ‘Charities and public benefit – from confusion to light?’ (2008) 10(3) Charity Lawand Practice Rev 1 at 3.63. See Luxton, above n 20, p 171. See also P Luxton ‘Redefining charity for the twenty-firstcentury’ (2004) 52 Amicus Curiae 9 (Luxton 2004), available at http://sas-space.sas.ac.uk/dspace/bitstream/10065/172/1/LuxtonPeterIssue052.pdf; P Luxton Public Benefit and Chari-ties: The Impact of the Charities Bill on Independent Schools and Private Hospitals paperdelivered at Lancaster University, 1 March 2006 (Luxton 2006), available at www.lancs.ac.uk/fass/law/docs/Peter Luxton talk.doc.64. A Sanders ‘The mystery of public benefit’ (2007) 10(2) Charity Law and Practice Rev 33at 36. This first aspect is now encapsulated in the first of the two key principles of public benefitenunciated in the Supp.G(R), above n 6, s D.65. Commenting on this state of affairs, Piper and Coleman indicate that ‘For the first head,the argument runs that poverty . . . [is] a blight on our society and thus it is for the public benefitif it can be relieved. With the second and third heads, it has been accepted that we benefit as asociety, if any of our members is educated or practices a religion’: A-M Piper and J Coleman‘Who benefits?’ (2007) 90 NLJ Spring/Summer Charities Supplement 4.66. [1948] AC 31 at 42.67. Luxton 2004, above n 63, at 12.68. Harding, above n 3, at 159.69. [1924] AC 496 at 499.



recipients of the benefit are sufficiently representative of the public.70 While it waspresumed that relieving poverty, educating the populace and advancing religion wereinherently beneficial, there seems to have been no corresponding presumption that anybenefits emanating from pursuing these purposes would accrue to the public or anappreciable section thereof. As Harding puts it, ‘the modern law has always been thatthose seeking to establish a charity have had to prove that it was of a public character:this has not been presumed in any way’.71

In giving effect to this second aspect of the public benefit requirement, the courtshad to formulate rules for determining whether the category of intended beneficiariescould be said to represent the public or a sufficient section thereof. The primary rulethat emerged was that a class of persons would not constitute a sufficient section of thecommunity where it was numerically negligible and the quality that united anddistinguished its members from the rest of the populace was descent from a commonforebear, association with a common employer or some other personal nexus based onblood or contract.72 However, this personal nexus test operated with varying degreesof stringency as between the different Pemsel heads. The two leading cases in whichthe court invoked this test in holding that the class of intended beneficiaries did notconstitute a sufficient section of the community both involved educational purposes.73

The position was even more stringent in relation to the fourth head, under which thecourts introduced a further dimension to the personal nexus test by insisting that therelevant purpose must not have been intended to benefit ‘a class within a class’.74 Bycontrast, the relief of poverty was from the outset deemed charitable, even if there wasa close personal nexus between the benefactor and the prospective beneficiaries.75

Moreover, as will be seen below, the courts tended to place greater emphasis on thedegree of public interaction or contact involved in carrying out religious purposes thanon whether there was a personal nexus based on blood or contract.76

(b) The operation of the public benefit requirement in the religious spherebefore 2006

According to Rickett, the requirement of public benefit technically applies across theboard in all religion cases.77 Within the judicial sphere, Lord Greene MR declared inRe Coats’ Trusts, Coats v Gilmour78 that ‘public benefit is a necessary element inreligious as it is in other charitable trusts’. Moreover, long before it was made explicit

70. Sanders, above n 64, at 136. This latter aspect of the public benefit requirement is nowembodied in the second of the key principles of public benefit set out in the Supp.G(R), aboven 6, pt E.71. Harding, above n 3, at 349–350. See also Sanders, above n 64, at 35.72. Luxton, above n 20, p 172, Smith, above n 31, at 65; Picarda, above n 20, pp 25–26.73. Re Compton [1945] Ch 123; Oppenheim v Tobacco Securities Trust [1951] AC 601.74. Lord Simonds in IRC v Baddeley [1955] AC 572 at 591.75. Dingle v Turner [1972] AC 601.76. Smith, above n 31, at 66. Once there was such public contact, the courts would apply whatmight be considered tantamount to a presumption of public benefit at one stage removed, byaccepting without demanding proof that the purpose would have a beneficial impact on asufficient section of the community.77. CEF Rickett ‘An anti-Roman Catholic bias in the law of charity?’ (1990) 54 Conv 34 at37.78. [1948] Ch 340 at 344.



in cases such as National Anti-Vivisection Society v IRC that purposes within the firstthree Pemsel heads were presumed to be beneficial to the public, something akin tothis presumption was already at work within the religious sphere. Because of thelongstanding association between religion and charity, the courts tended to treatreligious purposes as charitable, without dwelling on whether the public would benefittherefrom. Harding suggests that this natural association of religion and charity in theearly cases ‘performed a similar role to that played by the presumption of publicbenefit in modern cases. It enabled courts to view trusts for religious purposesfavourably without requiring evidence on the basis of which such a favourable viewmight be justified’.79

Before the 2006 Act, reliance on this presumption within the religious domain wasespecially manifest in connection with the first aspect of the public benefit require-ment, which dictated that in order to be charitable, religion must have a beneficialimpact. The influence of the presumption on this first aspect of the public benefitrequirement was discernible at two distinct levels – the conceptual level and theevidential level. At the conceptual level, the focus was on whether religion was of itsvery nature beneficial to society. At the evidential level, the material question waswhether the particular religious purpose specified in a testamentary gift, trust deed orconstitution of a religious body conferred a sufficient benefit for it to be recognised ascharitable.80

Referring first of all to the operation of the presumption at the conceptual level,English charity law proceeded on the premise that any religion was better than none.It was this benign view that materialised into a presumption that religion tended tohave a beneficial effect within the environment in which it was practised. The thinkingbehind the operation of the presumption at this conceptual level has been wellsummed up by the Charity Commission, which credits religion with giving meaningto the lives of adherents, contributing to their spiritual well-being and providing amoral or ethical framework for them to live by and points out that ‘[t]his moral orethical framework is considered by many to offer benefits to wider society’.81

In addition to this broad acceptance, at a conceptual level that religion tends to dogood within society, reliance was also placed on the presumption of public benefit atthe evidential level. The reliance on the presumption at the evidential level meant, insubstance, that in determining whether a specific religious purpose expressed in a giftor trust or in the constitution of a religious body was charitable, proof would notordinarily be required of the nature and quality of the benefits to be derived fromcarrying that purpose into effect, unless there were countervailing considerationswhich raised significant doubts that the purpose would be beneficial.82 Harding, whooffers an illuminating account of the operation of the presumption of public benefit inthe religious sphere before the advent of the Act, signifies that from the evidentialstandpoint, it was essentially a ‘fact-finding tool’.83 He observes that a finding thatcarrying out the purposes of a trust would benefit the public was a finding of fact

79. Harding, above n 3, at 161–162.80. Luxton 2006, above n 63. See also P Luxton Public Benefit and the Independent Schools– Powerpoint Slides (March 2008) (Luxton 2008), available at http://www.charitylawassociation.org.uk/parties.html.81. Supp.G(R), above n 6, s D2. See also F Quint ‘The rationale for charity law’ (1993–1994)2(4) Charity Law and Practice Rev 211 at 212.82. See Edge and Loughrey, above n 36, at 48.83. Harding, above n 3, at 163.



which should ordinarily be based on evidence presented before the court or theCharity Commission and explains that the effect of the presumption was to obviate theneed to base a finding of public benefit on evidence. He identifies three contexts inwhich the courts and the Commission opted to rely on the presumption at the eviden-tial level. The first of these contexts was where there was little or no evidence for oragainst a finding of public benefit.84 The second context, where there was someevidence for and some evidence against a finding of public benefit, in which event, thepresumption operated as a ‘tie-breaker’.85 The third context was where there was littleor no evidence for a finding of public benefit and some evidence against such a findingbut the evidence against did not, in the court’s assessment, suffice to rebut thepresumption.86

The presumption of public benefit thus conceived did not, however, extend to thesecond aspect of the public benefit requirement, which stipulated that the benefit inquestion must accrue to the public or an appreciable section thereof. As Luxtonremarked in this connection:

‘It is not . . . presumed that a religious purpose will benefit a sufficientsection of the community; so that, when “public benefit” is used in this latter sense,it is clear that, for a purpose to be charitable under this third head of Pemsel,a public benefit must be shown.’87

The view that public benefit in this second sense would not be presumed but had to beproved was endorsed in Gilmour where Lord Greene MR declared that he wasunaware of any English authority ‘in which the existence of a benefit of a publiccharacter ha[d] . . . been shown to exist otherwise than by proof of works which havea demonstrable impact on the community or section of it’.88 This case concerned abequest to a Carmelite priory, whose members lived in seclusion from the worlddevoting themselves to contemplation and prayer. The Roman Catholic Archbishop ofWestminster testified that the testatrix, the nuns and others who professed the Catholicfaith genuinely believed that the religious observances of the nuns would benefit thepublic at large by drawing God’s grace and favour down on mankind. It was furthercontended that the public would benefit from the inspiration derived from the edifyingexample provided by the piety of the nuns and their whole-hearted devotion to theirreligious duties. If the nuns had been able to establish the requisite benefit to the publicon the strength of these claims, this would have meant that, in the interests of religiousneutrality, the courts would have had to accept claims by all denominations andreligions that they conferred spiritual benefits on a sufficient section of the publicwithout requiring proof of such benefits. Faced with this unpalatable prospect, boththe Court of Appeal and the House of Lords89 took the view that, insofar as thespiritual benefits which the nuns’ religious observances purportedly conferred on thepublic were not susceptible to proof by conventional means, they were inadmissible in

84. Ibid, at 163. Harding exemplified this context by referring to Neville Estates v Madden,above n 28, and the decision of the Charity Commissioners in the Sacred Hands SpiritualCentre case, above n 42.85. Ibid, at 164. Harding illustrated this type of situation by reference to Holmes v Attorney-General (1981) The Times, February 12.86. Ibid, at 166. Harding referred in this connection to Re Watson, above n 25.87. Luxton, above n 20, p 130.88. Re Coats’ Trusts, Coats v Gilmour, above n 78, at 347.89. See Gilmour v Coats, above n 24.



evidence, while the alleged benefit derived from edification by example was too vagueand intangible to suffice. They therefore concluded that this was not a valid charitablegift since public benefit had not been proven. Although the arguments in this casecentred on first-order benefits in the nature of intangible spiritual blessings andinspirational edification, the decision would probably have been the same if it hadbeen claimed that the nuns’ pious lives had conferred more tangible material benefitson the community (eg greater prosperity, bounteous harvests, falling crime, etc). Thisis because even though these material improvements might ordinarily be capable ofproof, the causal link between the nuns’ piety and such happy outcomes would havebeen virtually unprovable.

This evident unwillingness to presume that any metaphysically induced spiritual ormaterial benefits emanating from religious pursuits would accrue to the public, or asufficient section thereof, was tempered by two notable developments. The first wasthe judicial recognition that the Compton-Oppenheim personal nexus test (whichafforded the basis for determining what constituted a sufficient section of the com-munity) might not apply as stringently to religious purposes as it did to educationalpurposes or purposes under the fourth Pemsel head.90 This made it somewhat easier,than might otherwise have been the case, to prove that any benefits derived fromcarrying out a given religious purpose would flow to a section of the community.

The second notable development was the emergence of what has been termed apresumption of public interaction. Any religious organisation engaged in such inter-action, however minimal, would be presumed to confer what Haddock describes as‘second order benefits’ on a sufficiently wide section of the community.91 The opera-tion of this presumption was evident in three contexts. The first context was where thereligious purpose under consideration involved observances, practices or pursuits thattook place in public and were accessible to all and sundry. The position in this regardwas exemplified by Re Hetherington,92 where Browne-Wilkinson VC held that thepublic celebration of a religious rite such as the Catholic mass would confer asufficient public benefit because of its edifying and improving effect on members ofthe public who attended. In his view, however, conducting such a rite in private did notcontain the necessary element of public benefit since any benefit of prayer or examplewas incapable of proof in a legal sense and any element of edification would be limitedto a private not public class of those present at the mass.

The second context in which the presumption of public interaction arose was wherethe designated religious purpose involved activities that took place in private, but thosewho partook in such activities lived within the wider community. In Neville Estates,for instance, Cross J declared that ‘the court was entitled to assume that some benefitaccrued to the public from the attendance at . . . places of worship of persons wholived in the world and mixed with their fellow citizens’.93 He was thus able toextrapolate from the fact that the members of the synagogue at the centre of thisdispute lived in the community that the ensuing public interaction was likely to havesuch a salutary impact on those around them as to warrant the conclusion that the

90. See IRC v Baddeley, above n 74, and Dingle v Turner, above n 75.91. Haddock, above n 7, at 152. See also PW Edge Religion and Law: An Introduction(Aldershot: Ashgate, 2006) p 110.92. [1990] Ch 1.93. Neville Estates, above n 28, at 853.



benefits of their religious services extended to the public at large.94 The third contextin which the presumption came into play was in Re Watson,95 where the interactionthat enabled the court to presume that the requisite public benefit had accrued to asufficient section of the community arose from the publication of religious writingsand their dissemination within the public domain. The effect of these cases, accordingto Haddock, was that ‘if a purpose is for the advancement of religion and there is somekind of public interaction, it is presumed to be beneficial to the public’.96

(c) Anomalies and inconsistencies in the application ofpublic benefit requirement

One of the chief reasons why the public benefit requirement featured so prominentlyon the reform agenda that culminated in the 2006 Act was that its judicial applicationwas riddled with anomalies, discrepancies and inconsistencies. This was especiallythe case within the religious subsector, where the presence of such anomalies anddiscrepancies severely impeded the operation of the public benefit regime. To beginwith, it is instructive to compare Neville Estates with Hetherington, on the one hand,and Gilmour, on the other. In Neville Estates, Cross J was able to conclude that thesynagogue was a charity even though its services were open only to its members. Thisconclusion was predicated on his willingness to presume that a sufficient section of thepublic would derive some benefit from their daily interaction with synagoguemembers. By contrast, in Hetherington, Browne-Wilkinson VC insisted that thesaying of masses would be charitable only if done in public and would not counte-nance the possibility that if such masses were said in private, those in attendancemight then go out into the world where the spiritual upliftment and moral improve-ment they derived from partaking in the mass would have a beneficial impact on thosearound them. It is not easy to discern why the courts differentiated in this mannerbetween what were essentially private services in a synagogue and the private massesthat were held not to confer public benefit in Hetherington.

Turning to the comparison between Gilmour and Neville Estates, in the latter case,Cross J made the rather glib supposition that ‘some benefit’ would accrue to the publicfrom interacting with synagogue members, without elaborating on the nature of thisbenefit. It is therefore unclear from his judgment how such an unspecified andunproven benefit was in reality any less nebulous or more impactive than the exampleafforded by the pious lives led by the Carmelite nuns within the confines of theirconvent which had already been rejected by the Lords in Gilmour as too insubstantialand intangible. It may be surmised that the type of benefit that Cross J contemplatedrelated to the edification and inspiration which would be afforded by having religiouspeople at large within the community. If this is correct, it is arguable that there was nota sufficient degree of difference between this and the edification and inspiration whichsubstantial numbers of observant Catholics (and indeed non-Catholics) might derivefrom the manner in which the nuns in Gilmour devoted themselves to the things ofGod so as to warrant the charitable recognition of one but not the other.

The impression conveyed by cases such as Neville Estates is that the lower courts,without going so far as to impugn the authority of Gilmour, were nonetheless inclined,

94. Equally instructive in this regard is the judgment of Hutley JA in the Australian case ofJoyce v Ashfield Municipal Council [1975] 1 NSWLR 744.95. Re Watson, above n 25.96. Haddock, above n 7, at 159.



wherever possible, to adopt a more flexible approach when dealing with issuespertaining to public benefit and the presumption thereof in the religious sphere. Thisimpression is reinforced by Re Watson, where the reasoning of Plowman J wasdistinctly at odds with that in Gilmour. He acknowledged in passing that counsel’sarguments were based primarily on Gilmour, before proceeding to hold that the publicdissemination of the religious writings of an obscure religious leader would benefit thepublic in spite of expert testimony that they had no intrinsic religious worth, Heinsisted that the only way of disproving public benefit would be to show that thedoctrines inculcated were ‘adverse to the very foundations of all religion, and that theyare subversive of all morality’.97 As Picarda points out:

‘the difficulty in reconciling [these] decision[s] is considerable. The religiousactivities of Carmelite nuns are not adverse to the very foundations of all religionnor are they subversive of all morality, so that if the approach adopted to publicbenefit in Watson is correct, Gilmour v Coats should have been decided the otherway.’98

The lack of consistency that characterised the operation of the public benefit require-ment in the religious domain was also evident in Re Warre,99 where Harman Jconcluded, on the authority of Gilmour, that the upkeep of a diocesan retreat housewas not for the public benefit because retreatants withdrew from worldly activities fora period of religious contemplation. Unlike the convent in Gilmour, the retreat housewas open to Anglicans residing in the diocese, who arguably constituted a sufficientsection of the community for religious purposes. Moreover, whereas the nuns inGilmour lived out their days in seclusion, the retreatants in Warre (like the synagoguemembers in Neville Estates) invariably returned to their ordinary lives and resumedtheir interactions with members of the wider community. The different outcomesin Warre and Neville Estates are therefore difficult to explain. Furthermore, in ReBanfield,100 Goff J, while ostensibly approving of the decision in Warre, neverthelessheld that the public benefitted from the Pilsdon Community, a Christian communitywhich took in persons seeking a refuge from the world to rebuild their shattered lives.Goff J’s acceptance that the public benefit requirement was not met in Warre, eventhough both the diocesan retreat house and the Pilsdon Community both engaged withthe wider public, further illustrates the contradictions inherent in the operation of thepublic benefit requirement in the religious domain before the enactment of the Act.101

The question of public benefit was also explored at some length in the CoS case,where the pronouncements of the Charity Commissioners did little to dispel theatmosphere of confusion engendered by the judicial discrepancies outlined above. TheCommissioners, while accepting that the CoS conducted numerous services that wereaccessible to the public, found that auditing and training, which constituted the corepractices of Scientology, occurred in private and were essentially private activitiesdirected to the needs of the individual in receipt of them. They therefore saw no basisfor concluding that any benefits derived from the practice of Scientology extended

97. Re Watson, above n 25, at 688.98. Picarda, above n 20, p 115. See also to the same effect JC Brady ‘Public benefit andreligious trusts: fact or fiction’ (1974) 25 NILQ 174 at 176.99. [1953] 2 All ER 99.100. [1968] 1 WLR 846.101. See the criticisms of Re Warre in J Warburton Tudor on Charities (London: Sweet &Maxwell, 2003) p 95 and Luxton, above n 20, p 109.



beyond the participants and held that no legally recognised benefit could be said to beconferred on the public.102 Edge and Loughrey have contended that this aspect of theCoS decision fits poorly with the decided cases. In the first place, it seems that theCommissioners might have been too hasty in discounting the beneficial aspects ofthose activities of the CoS that took place in public, such as Sunday services andnaming ceremonies. Secondly, as Edge and Loughrey point out, ‘the Commissionersdo not appear to have taken into account the case of Neville v Madden, where the courtassumed that public benefit arose where members of a religious order lived in theworld and mixed with their fellow citizens’.103

(d) The impact of the 2006 Act on the pre-existing law relating topublic benefit

(i) the statutory requirement that purposes must be for the public benefit

The anomalies and inconsistencies that characterised the public benefit regime werenot confined to the religious sphere but were evident across all four Pemsel heads. The2006 Act responded to this unsatisfactory state of affairs by adopting a two-foldstrategy. One aspect of this strategy was to invest the public benefit requirement withstatutory authority by providing in s 2(1)(a) that a purpose will be charitable only if itis for the public benefit. While this proposition is not particularly contentious, mattershave been complicated by the Charity Commission’s Public Benefit Guidance. On theone hand, the guidance states that in matters pertaining to public benefit, the emphasisis on the aims (ie the particular purposes) of an organisation.104 The Commissionreinforces this by declaring elsewhere that ‘the test is whether an organisation hasaims that are for the public benefit which is clearly a purposes test’.105 On the otherhand, the guidance introduces what is essentially an activities test by detailing cir-cumstances in which the Commission may, in the process of assessing public benefit,take cognisance of an organisation’s activities (ie what the organisation does in orderto carry out its aims).106 As Picarda indicates, under the pre-existing law, the orthodoxview was that such an activities test had no place where the purposes expressed in anorganisation’s governing documents were unambiguous and clearly charitable.107 The

102. CoS case, above n 40, at 46–49.103. Edge and Loughrey, above n 36, at 50.104. The Commission’s General Guidance stipulates in this connection that ‘an organisationmust be able to demonstrate that it is set up for charitable aims that are and will be carried outfor the public benefit’ See Charity Commission Charities and Public Benefit (January 2008),pt D4, available at http://www.charity-commission.gov.uk/Library/publicbenefit/pdfs/publicbenefittext.pdf.105. See Public Benefit and Fee Charging: Summary of Consultation Responses p 4, availableat http://www.charitycommission.gov.uk/library/publicbenefit/pdfs/resfc1208.pdf.106. See Charity Commission, above n 104, pt D4.107. Picarda, above n 20, pp 32–33. In cases such as Incorporated Council for Law Reportingv A-G [1972] AC 73, A-G v Ross [1986] 1 WLR 252 and Southwood v A-G (1998/99) ITELR119, the courts evinced a willingness to take account of an organisation’s activities whenpronouncing on its charitable status. However, from his analysis of these cases, Picarda con-cludes that they did not derogate from the orthodox view since the first case did not overtlysuggest that the courts would focus on an organisation’s activities when its purposes wereclearly stated, while in the latter two, there was some ambiguity regarding the charitable natureof the relevant purposes.



Commission’s guidance goes beyond this and stipulates that existing and proposedactivities may be taken into account, not only to clarify an organisation’s aims wherethese are ambiguous or obscure but also ‘in order to . . . ensure that the aims are, willor may be carried out for the public benefit’.108 Similarly, the Supp.G(R) states that theCommission may require charity trustees to show a link between their charity’sactivities and its aims in order to demonstrate that these aims are being carried out forthe public benefit.109

The approach articulated in the guidance is a significant and arguably unwarranteddeparture from the purposes test, which has long constituted the traditional basis fordetermining public benefit. Taken to its logical conclusion, the effect of this newapproach would be that in the religious sphere, for instance, if an organisation’s actualor proposed activities do not, in the Commission’s view, appear beneficial to thepublic, the organisation would not qualify as charitable, even if its aims are unmis-takably religious and are formulated in terms which, if fulfilled, would confer therequisite public benefit. It seems, however, that the more appropriate course (and onethat is more consonant with the pre-existing orthodox view) would not be for theCommission to withhold or withdraw charitable recognition in such circumstances,but rather to utilise its regulatory powers to prevail on the organisation to realign itsactivities so that they are more consonant with its charitable aims.

(ii) the removal of the public benefit presumption

The other aspect of the two-fold strategy adopted by the 2006 Act was to introduce auniform and consistent approach to the operation of the public benefit requirementacross all the heads of charity by dispensing with the presumption of public benefit. Tothis end, s 3(2) provides that, in determining whether the public benefit requirement issatisfied, ‘it is not to be presumed that a purpose of a particular description is for thepublic benefit’.

(i) The effect of s 3(2) on the first aspect of the public benefit requirement.In seeking to assess the true import of this provision, it is pertinent to recall that publicbenefit is used in two senses, the first of which focuses on the beneficial aspect of thephrase and the second on the public aspect. As far as this first aspect is concerned, weshall begin by considering the position at the conceptual level. Luxton acknowledgesthat the phrase ‘a purpose of a particular description’ as employed in s 3(2) mightconceivably be construed to refer to the specific descriptions of charitable purposes ins 2(2).110 If this construction is adopted, none of the diverse range of charitablepurposes thus described would be presumed to confer any form of public benefitwhatsoever. This would mean that whenever charitable status is sought under any ofthese charitable descriptions, it would have to be proved afresh that the concept

108. See Charity Commission, above n 104, pt D4. See also see also the Charity Commission’sAnalysis of the Law Underpinning Charities and Public Benefit (December 2008) ss 4.6and 4.11–4.13, available at http://www.charity-commission.gov.uk/Library/publicbenefit/pdfs/lawpb1208.pdf.109. Supp.G(R), above n 6, pt B5. The growing emphasis on a charity’s activities is furtherillustrated by the fact that the recently revamped online Register of Charities maintained by theCommission lists the activities rather than the aims/purposes of many charities.110. P Luxton Memorandum to Joint Committee on the Draft Charities Bill (Luxton memo)paras 5–6, available at http://www.publications.parliament.uk/pa/jt200304/jtselect/jtchar/167/167we180.htm. See also Luxton 2006, above n 63; Luxton 2008, above n 80.



embodied in that description – whether it be relief of poverty, advancement ofeducation or religion or any of the other nine heads specified in s 2(2)(d)–(l) – is likelyto have a beneficial effect. Luxton regards this as improbable, arguing that sinceParliament has listed these descriptions of purposes in the Act, it must be presumedthat they are inherently beneficial in nature.111 In similar vein, Hackney contends that‘it will indeed be bizarre if it is held that a disposition simply to give effect to one ofthe new statutory purposes, without more, is not to be beneficial’.112

If this contention that s 3(2) has no bearing on the charitable purposes described ins 2(2) is correct, this would suggest that the provision that public benefit will no longerbe presumed relates to the particular purposes (ie aims) of a trust or organisation. Thisreading of s 3(2) is supported by the Supp.G(R), which, after clarifying that the term‘aims’ is shorthand for the purposes of an individual charity or prospective charity,signifies that ‘there is no automatic presumption that an organisation with a statedaim . . . is charitable. To be a charitable purpose it [ie the aim] must be for the publicbenefit’.113 This view of s 3(2) is shared by Quint, who states that ‘it is the purpose (ieof the particular charity) not the general description of the purpose as set out in clause2(2) that is referred to’. She further explains that in the religious sphere, ‘the pre-sumption to be removed is not the presumption that religion can be expected to bebeneficial in a general sense, but the presumption that simply because a particularinstitution has been founded for the advancement of religion, its purposes are benefi-cial to society’.114

Under the previous law, cases like Re Watson115 had held that the purposes of areligious organisation would be viewed as beneficial to the public, provided itsdoctrines were not subversive of all morality. In its Supp.G(R), the Charity Com-mission indicates that something more substantial is required under the new publicbenefit regime, namely that the religious belief system under consideration mustoperate within an identifiable, positive moral or ethical framework. The Commissionaccepts that the availability of a sound moral or ethical framework is likely to benefitthe followers of a religion, by giving meaning to their lives, equipping them with asense of purpose, contributing to their spiritual well-being and giving them indi-vidual comfort and solace. It also acknowledges that in the greater scheme of thingssuch a framework is considered by many to offer benefits to the wider society.However, the existence of such a framework does not in itself prove that the publicor a sufficient section thereof will derive benefits from the religion, as a matter ofcourse, but merely ‘demonstrates that the religion is capable of impacting on societyin a beneficial way’.116 In effect, such benefits (which had hitherto been presumed)must now be proved. It is therefore incumbent on any religion seeking charitablerecognition to demonstrate by means of evidence what benefits it will confer, thatsuch benefits are related to its aims and that such benefits outweigh any counter-vailing detrimental or harmful effects.117

The fact that the beneficial effects of a religious organisation’s aims will no longerbe presumed but must now be proved, necessarily dictates that judgements must be

111. Luxton 2006, above n 63; Luxton 2008, above n 80.112. Hackney, above n 4, at 349.113. Supp.G(R), above n 6, pt D2.114. F Quint The Draft Charities Bill, Public Benefit and the Advancement of Religion paras11–12, available at http://www.charitylawassociation.org.uk/wparty040727d.html.115. Re Watson, n 25 above.116. Supp.G(R), above n 6, pt D2 (emphasis added).117. Ibid, pts D1–D3.



made about the merits of its particular purposes. Harding contemplates that in makingthese judgements, the courts are most likely to adopt the approach they have previ-ously taken in dealing with purposes falling under the fourth Pemsel head, to whichthe presumption of public benefit never applied. This approach requires the court toundertake an evaluation of the purpose under consideration, having regard to theevidence presented to it.118 In the light of its evaluation of the evidence, the court willthen make a finding of fact that the purpose will be beneficial or refuse to make sucha finding, either because there is insufficient evidence pointing to any benefit orbecause the evidence indicates that the purpose will be more detrimental than benefi-cial. Harding notes that this evaluative approach is well suited to cases in which theavailable evidence relates to benefits or detriments that are tangible in nature andtherefore relatively easy to identify or quantify, but may present difficulties ininstances where there is little or no evidence of tangible benefit but there is someevidence of intangible benefit. In several cases falling under the fourth head, the courtswhich adopted the evaluative approach did in fact rely on evidence of such intangiblebenefit (in the form of the moral improvement of society) as the basis for conferringcharitable status.119 As Harding points out, the problem posed by these cases was that,in relying on such evidence, the courts were, in effect, proceeding on the unprovenassumption that most people would accept that carrying out the purpose in questionwould bring about moral improvement.

The Supp.G(R) states that it is often the case with religious charities that ‘some ofthe benefits are not tangible and could be potentially difficult to identify’ but that ‘thisis not to say that a public benefit assessment would only take account of tangible,practical benefits’.120 This suggests that intangible benefits (such as the spiritualbenefits rejected in Gilmour on the ground that they were not susceptible to concreteproof) are no longer to be discounted in undertaking such a public benefit assessment.This would pose the same problem as the moral improvement cases did, since bygoing down this route, the Charity Commission would be relying on the same dubiousassumption that most people would accept that such purported benefits would, in fact,result from carrying out religious purposes. Harding, for one, regards any suchassumption as singularly inappropriate in the current religious milieu, arguing that ‘ina community characterised by religious diversity, it cannot be assumed that mostpeople accept any intangible public benefit that will flow from carrying out a religiouspurpose’.121

In view of the problems posed by the evaluative approach, particularly where thereis little or no evidence that a religious purpose confers tangible benefits, an alternativeapproach that might be open to the courts now that public benefit can no longer bepresumed would be to adopt what Harding refers to as the technique of deference. Theessence of this approach is that a finding of public benefit will be made on the strengthof evidence which shows that the settlor or testator believed that carrying out the

118. Harding, above n 3, at 166–170. This was the approach adopted, for instance, in theleading case of National Anti-Vivisection Society v IRC, above n 66, where the House of Lordshad the difficult task of deciding whether campaigning for the abolition of animal experimen-tation was of benefit to the public.119. See, eg, Re Scowcroft [1898] 2 Ch 638; Re Wedgewood [1915] 1 Ch 113; Re Grove-Grady[1929] 1 Ch 240; Re Price [1943] Ch 422; Re South Place, above n 35.120. Supp.G(R), above n 6, pt D2.121. Harding, above n 3, at 169.



specified purpose would benefit the public.122 While this approach has been readilyembraced by the Irish courts,123 cases such as Gilmour demonstrate that Englishjudges have been much less willing to defer to the views of the testator or benefactorin matters of public benefit. Although counsel in Gilmour had specifically sought torepudiate the proposition that it was incumbent on the court to accept the views of areligion or its adherents regarding the spiritual benefits of its practices on the com-munity, both Lord Simonds and Lord Du Parq conveyed the impression that counsel’ssubmission favoured this proposition.124 Having thus reinterpreted counsel’s argu-ment, their Lordships proceeded to make it clear that, in seeking to determine theexistence of spiritual benefits, they would not accept that such benefits had beenproven simply because that was what the Catholic Church or its adherents sincerelybelieved. As Lord Simonds declared, ‘A gift to . . . cloistered nuns in the belief thattheir prayers will benefit the world at large does not from that belief alone derivevalidity any more than does the belief of any other donor for any other purpose’.125

This stance, in Harding’s view, makes it highly unlikely that English law will respondto the abolition of the presumption of public benefit by adopting the technique ofdeference.126

What emerges from the foregoing is that the fact that the presumption of publicbenefit can no longer be deployed as a fact-finding tool has introduced some difficultyat the evidential level, since it is unclear how the courts will go about determiningwhat evidence can be relied on when seeking to ascertain whether a religious purposeis sufficiently beneficial, particularly where the purported benefits are intangible innature.

(ii) The effect of s 3(2) on the second aspect of the public benefit requirement.The abolition of the presumption of public benefit had initially been proposed by theCabinet Office Strategy Unit as a means of strengthening the public benefit regime.127

Referring to the requirement that the section of the community capable of benefittingmust be sufficient, Luxton states that ‘even without going further into the intricaciesof public benefit in this second sense, it will be clear that the Strategy Unit [was not]using the expression in this sense when it talk[ed] of tightening the public benefitrequirement’.128 The impression this conveys is that the abolition of thepublic benefit requirement by s 3(2) has had no bearing on the second aspect of thepublic benefit requirement. This view has been reiterated by Sanders, who opines thatthe enactment of s 3(2) ‘did alter the law but only in relation to the question whethera charity will “do good” but not in relation to the question whether a sufficient number

122. Ibid, at 173–174.123. See, eg, Webb v Oldfield [1898] 1 IR 431 at 446; O’Hanlon v Logue [1906] 1 IR 247 andRe Sheridan [1957] IR 257.124. See Edge, above n 39, pp 154–156; Edge and Loughrey, above n 36, p 41; Haddock, aboven 7, at 153.125. Gilmour, above n 24, at 446. See also the CoS case, above n 40, where the CharityCommissioners stated that it was ‘settled law that the question whether a particular gift satisfiesthe requirement of public benefit must be determined by the court and the opinion of the donoror testator is irrelevant’.126. Harding, above n 3, at 176–177.127. Strategy Unit Report Private Action, Public Benefit: A Review of Charities and theWider Not-For-Profit sector pp 39–40, available at http://www.cabinetoffice.gov.uk/media/cabinetoffice/strategy/assets/strat%20data.pdf.128. Luxton 2004, above n 63, at 12.



of people benefit from a certain charity’.129 Referring specifically to the religioussubsector, it was seen above that under the pre-existing law, the presumption did notordinarily relieve those who were seeking charitable status for a religious purpose ofthe need to prove that the purpose would benefit the public or a sufficient sectionthereof. Insofar as this was a matter of proof rather than presumption, s 3(2) appearsto have wrought no material change in this regard.

This does not however mean that matters are entirely clear-cut, since there remainone or two unresolved issues concerning the impact of s 3(2) on this latter aspect ofthe public benefit requirement. In the first place, even though the Supp.G(R) affirmsthat ‘where the benefit is not to the public generally, it can be to a section of thepublic’,130 it fails to clarify what constitutes ‘a section of the public’ from the reli-gious standpoint. Under the previous law, it was accepted within the judicial spherethat a class of beneficiaries might constitute a sufficient section of the community forreligious purposes, even where it would not for educational purposes or purposeswithin the fourth Pemsel head. It is a matter of some conjecture whether this dis-tinction has survived the abolition of the public benefit requirement by s 3(2). Theview favoured by Sanders is that ‘the Charities Act will not change the public benefittest in respect of the definition of the public’.131 If this is correct, it would suggest thatthe variations between the different heads of charity regarding what constitutes asufficient section of the community will remain a feature of the post-2006 regime. Itmight, however, be counter-argued that since the thinking behind the recent publicbenefit reforms was to create a level playing field for all charities by rendering the lawmore uniform and consistent, the personal nexus test formulated in cases such asCompton and Oppenheim should now be applicable across the entire charitable spec-trum. Significantly, Sanders herself does not seem averse to this view, since she urgesthat the enactment of the Act should be taken as an opportunity to come to a unitarypublic benefit test for all the descriptions of charitable purposes listed in s 2(2) of the2006 Act and submits that the test discussed in Oppenheim and Compton ‘offers thebest approach to the problem’.132 Indeed, if Parliament’s insistence on a level playingfield in matters pertaining to public benefit is taken to its logical conclusion, it isconceivable that the further requirement formulated in respect of charities within thefourth Pemsel head (namely that those intended to benefit from a charitable purposemust not be ‘a class within a class’) will now be applicable to religious charities aswell. If these suppositions are correct, it is likely to become substantially harder inpractice to establish that any benefits derived from religion accrue to a sufficientsection of the community.

The judicial tendency to equate public interaction with the conferment of benefit ona sufficient section of the community is another facet of the pre-existing law whichmight now need to be revisited in the wake of the removal of the presumption of publicbenefit. Under the previous law, there was a presumption that once a religious purposeentailed a modicum of public contact or interaction, its benefits would accrue to asufficient section of the community. It is debatable whether this presumption that anybenefits accruing from a given religious purpose can be transmitted to the widercommunity through public contact is still sustainable in the light of s 3(2).

129. Sanders, above n 64, at 33.130. Supp.G(R), above n 6, pt E.131. Sanders, above n 64, at 43.132. Ibid, at 57.



3. THE HUMAN RIGHTS DIMENSION: THE COMPATIBILITY OF THECHARITABLE CONCEPTION OF RELIGION WITH CONVENTION RIGHTS

(a) The position before the 2006 Act

The decision of the UK Parliament to give further effect to the fundamental rights andfreedoms enshrined in the Convention by enacting the Human Rights Act 1998 isarguably the most momentous event in the nation’s recent legal history. One notableconsequence of this development is that, in recent years, there has been a growingawareness of the importance of human rights within the charitable sphere and, inparticular, within the religious subsector. A highly contentious issue which loomedlarge on the horizon in the period leading up to the 2006 Act was whether the verynarrow meaning ascribed to religion under the third Pemsel head needed to beenlarged to bring it into conformity with various rights guaranteed by the Conventionand protected by the Human Rights Act 1998.133 The Convention rights that featuredmost prominently in the ensuing debate were those enshrined in Arts 9 and 14. Article9(1) provides that ‘Everyone has the right to freedom of thought, conscience andreligion’ and that ‘this right includes freedom . . . to manifest his religion or belief, inworship, teaching, practice and observance’. Article 14 stipulates that ‘The enjoymentof the rights and freedoms set forth in this Convention shall be secured without anydiscrimination on any ground such as . . . religion’.134

Several commentators who contributed to this debate maintained that refusing toregister a religious organisation or belief system as charitable on the ground that it wasnot adjudged to be a religion in the narrow charitable sense would not breach theseConvention rights. Warburton, for instance, asserted that the definition of religionadopted in the CoS case was consistent with the Convention, even though it was rootedin a belief in a supreme being and worship of that being.135 Such a categorical assertionis open to question, not least because the Convention organs, in giving effect to Art 9,have never sought to elevate religious faiths that espouse this inherently Judaeo-Christian view of religion over those that do not subscribe to this view. Commentingon this state of affairs, Edge pointed out that under European human rights jurispru-dence, a relationship with a putative supreme being was not essential to claiming Art9 protection and that religious belief in a non-theistic sense was also protected by thisArticle.136 It is therefore difficult to comprehend the basis for Warburton’s insistencethat religion as narrowly defined in the CoS case was consistent with the Convention.

133. The Charity Commission and the courts which were responsible for formulating andapplying this narrow definition of religion are public authorities within the meaning of s 6(3) ofthe Human Rights Act 1998. They are thus obliged under s 6(1) to act in a way thatis compatible with the Convention. See the Charity Commission’s Operational Guidanceon Open Government and Human Rights, available at http://www.charity-commission.gov.uk/supportingcharities/opengov.asp and http://www.charity-commission.gov.uk/supportingcharities/ogs/g071b002.asp.134. The compatibility of the charitable definition of religion with these Convention rights wasconsidered at some length by the Charity Commissioners in the CoS case, above n 40, but theiranalysis was somewhat rudimentary and not entirely illuminating.135. Warburton, above n 101, p 75.136. Edge, above n 39, p 46. Belief systems that have been held to come within its scope haveincluded the Krishna Consciousness movement (ISKCON v UK (1994) 76A DR 90); theSwiss-based Divine Light Centre (Omkaranada and the Divine Light Zentrum v Switzerland(1981) 25 DR 105) and modern manifestations of ancient pre-Christian faiths such as Druidism(Chappell v UK (1988) 10 EHRR 503 and Pendragon v UK (1998) 27 EHRR CD 179).



A more weighty argument advanced by some commentators in support of the viewthat this narrow definition of religion did not violate Art 9 was that even if it diddeprive some religious organisations of charitable status, this did not debar theiradherents from holding and expressing their religious beliefs.137 Elaborating on thistheme, Luxton pointed out that English law had over the preceding centuries abolishedrestrictions that denied adherents of various religious groups the right to express andpractise their religious faith both publicly and in private. It was thus arguable that Art9 ‘add[ed] nothing to the religious toleration extended to persons of every faith in theUK’ and that ‘the more restricted meaning of the advancement of religion for thepurposes of the law of charity had nothing to do with Article 9’.138 A difficulty with thisline of reasoning is that the type of passive religious toleration traditionally displayedby English law fell well short of the active promotion of religious freedom as afundamental right contemplated by Art 9.139 Moreover, even though declining toregister religious organisations whose beliefs did not conform to the narrow charitabledefinition of religion did not preclude them from putting their faith into practice, thereputational and fiscal advantages flowing from registration may possibly haveimproved the viability of such organisations and provided a more effective platformfor pursuing their religious agenda within the public domain. Indeed, Luxton himselfobserved that refusing to recognise a religious organisation as charitable might con-ceivably impair its ability to proselytise and carry out its teaching and that a right toconvince one’s neighbour through teaching is one of the avenues of manifesting one’sreligion protected by Art 9. He thus appears to have gone some way towards acknowl-edging that from the fiscal standpoint at any rate, such a refusal may well curtail animportant facet of the right to manifest religious beliefs under Art 9.140 It thereforeseems that there is some basis for asserting, as Quint and Spring have done, that ‘[a]decision not to register a religious organisation under the Charities Act . . . result[ed]in a number of substantive hindrances’ and that it was these hindrances ‘that wouldactivate Article 9’.141

Quint and Spring further contended that relying on the narrow meaning of religionas the basis for bestowing charitable recognition and its attendant benefits on somereligious belief systems but not others might also violate the anti-discriminationprovision in Art 14 when taken together with Art 9.142 Article 14 does not confer afree-standing right but can only be invoked where the matter in dispute comes withinthe ambit of any of the specific rights guaranteed by the Convention, including thoserights enshrined in Art 9. The operation of Art 14 is not conditional on the right inquestion having actually been breached, for as the European Court of Human Rights(ECtHR) explained in the Belgian Linguistics case,143 ‘a measure which in itself is inconformity with the requirements of the Article enshrining the right or freedom inquestion may however infringe this Article when read in conjunction with Article 14

137. See Luxton, above n 20, p 45 and D Morris ‘Know your charitable rights’ (1998) NGOFinance Charity Law Annual Review 18 at 19 (as cited by Luxton). See also Edge andLoughrey, above n 36, at 56.138. Luxton, ibid.139. R Hopkins and CV Yeginsu ‘Religious liberty in British courts: a critique and someguidance’ (2008) 49 Harv Int LJ 28.140. Luxton, above n 20, p 45. See also Warburton, above n 101, p 75.141. F Quint and T Spring ‘Religion, charity law and human rights’ (1999) 5(3) Charity L&PR153 at 166–167.142. Ibid, at 167–169. See also Edge and Loughrey, above n 36, at 60.143. (1979–80) 1 EHRR 252.



for the reason that it is of a discriminatory nature’. Adopting this line of reasoning, ifthe state had, for instance, denied tax exemptions to religious organisations and thispolicy had been maintained across the board for all such organisations, it might havebeen difficult to invoke Art 9, since the article did not oblige the state to confer taxconcessions on religious grounds. Instead, as things stood before the 2006 Act, theavailability of tax exemptions was dependent not on whether the organisation inquestion was religious but on whether it was religious in the narrow sense prescribedby English charity law. In effect, some religious organisations were accorded theprivilege of tax exemptions in circumstances where others were hindered from claim-ing such exemptions by the lack of charitable recognition. As Quint and Springpointed out, the conferment of such privileges on some religious organisationsand imposition of hindrances on others breached Art 9 when read in conjunction withArt 14.144

The difficulties inherent in reconciling the narrow charitable definition of religionwith these convention rights were exacerbated by the fact that the scope of Art 9 wasnot confined to religion (however narrowly or broadly conceived). Article 9 refers to‘thought, conscience and religion’ and ‘religion or belief’ and as Lord Walker ofGestingthorpe explained in Williamson, ‘these expressions cover a wider field thaneven the most expansive notion of religion’.145 Consequently, belief systems foundedon atheism, agnosticism or humanism, which are generally regarded, even by theirholders, as non-religious, are treated as falling within the remit of Art 9.146 It followsthat if such a belief system was denied charitable recognition because it was not areligion in the narrow sense prescribed by the third Pemsel head, there might havebeen some basis for claiming that this constituted a breach of Arts 9 and 14. However,this prospect of being denied recognition under the third head was ameliorated by thepossibility that such non-religious belief systems could be recognised as charitableunder the fourth head, as happened, for instance, in South Place.147 At first sight, itmight be supposed that this possibility would negate any claim that the law in force atthe time violated the convention rights of organisations advancing non-religiousbeliefs, since such organisations could still obtain the benefits enjoyed by charities,albeit under a different head. As seen above, however, if a claim to charitable recog-nition was founded on the fourth head, the requisite public benefit would have to beproved, whereas if it arose under the third, public benefit would be presumed. Ineffect, as the law then stood, in order for organisations professing non-charitablereligious beliefs to secure charitable registration, they had to fulfil more rigorousrequirements than organisations whose beliefs were adjudged to be religious. Com-mentators like Edge and Loughrey argued in the light of this that, insofar as thecharitable status of non-religious belief systems protected by Art 9 fell to be deter-mined under the fourth head rather than the third, this might constitute a basis for anArts 9–14 challenge.148

144. Quint and Spring, above n 141, at 169.145. Williamson, above n 55, para [55].146. See, eg, Kokkinakis v Greece (1993) 17 EHRR 397 para 31, where the ECtHR describedthe protection afforded by Art 9 as a ‘precious asset’ for atheists and agnostics.147. Re South Place, above n 35.148. Edge and Loughrey, above n 36, at 60–61.



(b) The impact of the 2006 Act on the human rights situation

It was against this backdrop that Parliament had to deliberate on the human rightsimplications of English charity law during the legislative stages of the 2006 Act. In thecourse of these deliberations, the relevant Joint Committee commented adversely onthe narrowness of the existing charitable definition of religion and observed that theinequality of treatment resulting from the non-registration of organisations fallingoutside this narrow definition would be likely to breach Arts 9 and 14.149 The Com-mittee therefore proposed that cl 2(2)(c) of the draft Charities Bill, which identifiedthe advancement of religion as one of the specific descriptions of charitable purposes,should be modified to cover all religious and non-religious organisations that pro-moted belief systems. Even though this proposal was supported by eminent legalscholars such as Lords Wedderburn and Borrie during the parliamentary debates onthe Charities Bill, the Government was resolutely opposed to any measure that wouldconflate religious and non-religious belief systems by extending the statutory provi-sions pertaining to the former to cover the latter and was able to prevail on Parliamentnot to implement this proposal.150

Instead, Parliament sought to ameliorate the breach of the Convention rightsalluded to by the Joint Committee by enacting s 2(3)(a) of the 2006 Act, whichenlarged the charitable definition of religion to encompass polytheistic and non-theistic belief systems. The fundamental importance of this provision from the humanrights perspective is that by severing the historical link between religion and mono-theism, it virtually neutralised what had hitherto been the most compelling reason forcontending that the previous state of the law was incompatible with the Convention.Numerous religious organisations which had either been denied charitable registrationunder the pre-existing law or which had perhaps opted not to apply for registrationbecause their beliefs did not conform to the narrow conception of religion in place atthe time, are now likely to come within the ambit of the new statutory definition. Itfollows that provided such organisations also fulfil the public benefit requirement,they will now be accorded charitable recognition and will therefore have no cause toclaim that their Convention rights have been infringed. It thus seems that the statutoryenlargement of the meaning of religion will go a long way towards reconciling the lawgoverning the registration of religious charities with the Convention.

The advent of the new statutory definition did not however extinguish all thecontroversy surrounding the operation of the Convention rights within the religioussphere. In particular, as the Joint Committee perceptively observed, ‘this definition putsbeyond doubt that organisations promoting multi-theistic or non-theistic religionscould attain charitable status . . . It does not, however, address the situation of organi-sations promoting non-religious ethical belief systems’.151 At the root of the problem isthe fact that the rights enshrined in Art 9 are, as noted above, designed to safeguardnon-religious as well as religious beliefs. In marked contrast to the position underArt 9, the 2006 Act has enumerated the advancement of religion as one of the 12specific descriptions of purposes that are deemed to be charitable under s 2(2) but

149. See Joint Committee on Human Rights (JCHR) First Report (2005–2006) paras 1.6–1.7,available at http://www.parliament.the-stationery-office.com/pa/jt200506/jtselect/jtrights/48/4804.htm.150. See C Fairbairn The Charities Bill, [HL], Research Paper 06/18 (2008) Home AffairsSection, House of Commons Library, at 17–18, available at http://www.parliament.uk/commons/lib/research/rp2006/rp06-018.pdf.151. JCHR Report, above n 149, para 1.8.



none of these specific heads contain any reference to the advancement of non-religiousbeliefs. The initial impression created by this state of affairs is that under the 2006 Act,non-religious belief systems are treated less favourably than religious belief systems incontravention of Arts 9 and 14. This difficulty could easily have been averted ifParliament had heeded the Joint Committee’s recommendation and modified the phrase‘the advancement of religion’in s 2(2)(c) to read the advancement of religious and otherbeliefs (or words to similar effect). This would have mirrored the reference to ‘religionor belief’ in Art 9. As Vickers points out, the use of this composite phrase in Art 9 hasmeant that ‘the exact dividing line between religious and non-religious beliefs does notneed to be drawn and that despite their non-religious content, beliefs such as humanismand atheism will be covered’.152 This same effect could easily have been achieved underEnglish charity law by giving effect to the Committee’s proposal.

The need to implement this proposal has however largely been obviated by the factthat under the pre-existing law, ethical and moral belief systems that were adjudgednot to be religious under the third Pemsel head could nevertheless be charitable underthe fourth head. Section 2(2)(m) and 2(4) of the 2006 Act were designed to serve thesame residual purpose as the fourth Pemsel head and their combined effect is thatpurposes not specifically listed in s 2(2) will, nevertheless, be charitable if they areanalogous to the listed purposes or were charitable under existing charity law. It seemsfairly obvious that the advancement of non-religious beliefs falls within the generaldescriptions of charitable purposes in s 2(2)(m) since it is not only analogous to oneof the specific descriptions in s 2(2) (ie the advancement of religion) but was alsocharitable under the pre-existing law.

Before the advent of the 2006 Act, the fact that the charitable status of religious andnon-religious belief systems fell to be determined under different heads meant that, asthe law then stood, when an organisation seeking to advance non-religious beliefsapplied for registration, it did not benefit from the presumption of public benefit whichoperated in favour of religious charities. From the standpoint of non-religious organi-sations, such differential treatment arguably violated Arts 9 and 14. Even though the2006 Act envisages that religious and non-religious belief systems will continue to bedealt with under different heads, this no longer presents a problem from the humanrights perspective, since s 3(2) now dictates that public benefit will no longer bepresumed but must be proved in all cases.

CONCLUSION

The distinct impression that emerges from the foregoing analysis is that despiteintroducing far-reaching reforms designed to place the law governing the confermentof charitable status on a sounder footing, the 2006 Act is not a panacea for all thedeficiencies and anomalies that had rendered the process of charitable recognitionwithin the religious domain so problematic. Indeed, in attempting to remedy thesedeficiencies and correct these anomalies, the relevant provisions of the Act havethemselves given rise to further difficulties.

In an effort to settle the vexed issue of what constituted religion, the Act provideda definition of religion in s 2(3)(a). The main virtue of this definition is that it has nowput it beyond doubt that religion in the charitable sense encompasses both polytheismand non-theism. However, the terms in which the definition is formulated has left one

152. Vickers, above n 11, p 15.



or two matters unresolved. First, the fact that it focuses exclusively on belief andmakes no reference whatsoever to worship (which had hitherto been a key componentof religion) detracted substantially from its clarificatory effect. Secondly, because thesubsection is so open-ended, it is potentially capable of accommodating an infinitevariety of belief systems. The Supplementary Guidance on Religion issued by theCharity Commission has gone much further than the Act itself in providingthe much-needed clarification by setting out the fundamental characteristics abelief system must possess in order to be registrable as a religion under the newdispensation.

Turning to the public benefit reforms initiated by the Act, a number of complica-tions have been thrown up by the new legislation. On the one hand, some confusionhas been generated by the manner in which the Charity Commission has sought toimport what is, in effect, an activities test into the new public benefit regime. On theother hand, within the religious arena, the effect of peremptorily dispensing with thepresumption of public benefit within the religious arena has been to render the lawuncertain in several material respects. Referring first of all to the first aspect of thepublic benefit requirement, a major area of uncertainty concerns the nature of theevidence that the courts and the Charity Commissioners will rely on in judgingwhether a given religious purpose is beneficial in nature. Reference was made in thisconnection to two approaches that might conceivably be adopted, one based onevaluation and the other on deference. The difficulties inherent in these disparateapproaches have been lucidly highlighted by Harding and, as things currently stand, itis far from clear which of the two will ultimately prevail in the new scheme of things.

Turning to the second aspect of the public benefit requirement, a measure ofuncertainty has also arisen within the religious subsector regarding the basis fordetermining what constitutes a section of the community. The quest for uniformity andconsistency in the operation of the public benefit requirement was advanced as theprimary reason for the abolition of the presumption of public benefit. It is a matter fordebate whether this quest for uniformity also dictates that the personal nexus test(which had hitherto served as the basis for determining whether educational purposesand purposes under the fourth head would benefit a sufficient section of the commu-nity) will now extend to religious purposes. A further conundrum that has been thrownup is whether the abolition of the presumption of public benefit means that it must nowbe proved that a religious purpose which entails a degree of public interaction orcontact will benefit a sufficient section of the community, bearing in mind that it hadhitherto been presumed that such interaction would ensure that the purpose wouldhave a beneficial impact on the public.

The Supplementary Guidance has shed very little light on these problematicaspects of the public benefit requirement. Moreover, these matters have not yet beenaddressed by the courts or the Charity Tribunal established under s 7 of the Act, notbecause they are unimportant but because the Tribunal was only constituted in March2008, while the Act’s public benefit provisions took effect in April 2008. Until theTribunal and the courts start grappling with these complexities, the scope and effectsof the new public benefit regime will remain unsettled in several significant respects.

Finally, an issue that became increasingly topical in the decade preceding the 2006Act was whether adopting a narrow monotheistic conception of religion when deter-mining which belief systems were charitable was compatible with Convention rights.Under the terms of s 2(3), the Charity Commission and the courts are now at libertyto accord charitable recognition to a much wider range of religious belief systems thanin the past. It can thus be anticipated that with the passing of the Act, adherents of such



religious belief systems are likely to have much less cause to invoke these Conventionrights because they have been refused charitable recognition. Moreover, the abolitionof the presumption of public benefit by s 3(2) now places ethical and moral beliefsystems of the non-religious variety on a par with religious belief systems as far as theoperation of the public benefit requirement is concerned. All things considered,therefore, it seems that under the new regime ushered in by the 2006 Act, the variousgrounds upon which organisations advancing religious and non-religious beliefsmight conceivably have contended that their Convention rights had been violated havebeen largely dismantled and that the current law in this area is much more compatiblewith the Convention than the pre-existing law.



out with the old, in with the new: religion, charitable status and the charities act 2006

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