This guest post by Robert Meakin is an abridged version of a forthcoming article in the next edition of Law & Justice and is published here with the kind permission of the Editor, John Duddington.
There have been concerns recently about whether religions might have religious doctrines and practices challenged if they are registered as charities. This article looks at possible grounds to challenge the Charity Commission, including the common law principles of non-justiciability, charity law (the definition of religion and public benefit) and human rights.
Grounds for challenging the Charity Commission’s approach to religious charities
- The Principle of Non-Justiciability
The first potential limit would be to argue that the Commission could be potentially breaching the principle of non-justiciability. There is a general principle in English law that the court will not become involved in the internal regulation or determination of beliefs within religious organisations which is called the non-justiciability principle: see generally R Sandberg, Law and Religion (CUP, 2011) 74-76. In the context of charity law it was expressed by Lord Reid in Gilmour v Coats  AC 426 at 455 as follows:
“No temporal court of law can determine the truth of any religious belief: it is not competent to investigate any such matter and it ought not to attempt to do so.”
- The public benefit debate
The law of public benefit might also limit the Charity Commission. There is currently a debate in the area of public benefit. Either the common law of public benefit still applies because the presumption never existed and the court and the Commission cannot generally evaluate religious doctrine and practice to determine whether a religious organisation is a charity except in limited circumstances or the common law of public benefit existed but has now been abolished but in doing so will be limited by the underlying principles upon which public benefit was based.
- The presumption of public benefit never existed and the Commission can only look at religious doctrine and practice in rare circumstances
S 4(3) Charities Act 2011 appears to preserve the common law of charitable status and public benefit as it says that: “…any reference to the public benefit is a reference as that term is understood for the purposes of the law relating to charities in England and Wales.” When issuing guidance pursuant to s 17(1) Charities Act 2011, the Charity Commission must base such guidance on the law. If section 4 (3) preserves the law on public benefit then the Charity Commission will be limited when issuing that guidance. If this is correct, then the Commission and the court are bound by the common law of public benefit and limited in their ability to judge religious doctrine and practice when determining public benefit.
- The presumption of public benefit existed and is now abolished but the Commission is limited in the extent to which it can look at religious doctrine and practice by the underlying legal principles upon which public benefit was based
If the presumption of public benefit existed and is now abolished then the court and the Commission will need to apply the underlying principles upon which the presumption was based. This would arguably allow the Commission to evaluate religious doctrines and practices of a religion but this, in turn, will present problems.
One of those underlying principles is that, the law “…assumes that it is good for man to have and to practise a religion…”. This is presumably on the basis that the advancement of religion is beneficial to mankind because it provides a moral code and therefore encourages good behaviour. The problem is that many of the religions that are controversial are remarkably similar to established religions in terms of doctrine. It follows that it will generally be quite easy for them to satisfy this element of the public benefit test. For example, in Founding Church of Scientology v United States 409 F 2d 1146 – Court of Appeals, Dist. of Columbia Circuit 1969, the Court concluded that Scientology had many of the characteristics of other recognised religions. Furthermore, the Court also concluded that the theories of Scientology relating to auditing and the claimed curative powers for the process were not properly subject to courtroom evaluation as to truth or falsehood.
Should the Church of Scientology ever decide to test the Charity Commission’s decision in court the outcome might be different.
- The statutory definition of religion and Charity Commission criteria
The definition of “religion” for the purpose of charity law is now contained in statute. Previously, the common law definition of religion for charity law was monotheistic but this has now been widened. Theoretically, it should have strengthened the position of religions as it has widened the scope of the definition of “religion” for the purpose of charity law. The Charities Act 2006 definition is now contained in the Charities Act 2011 which defines “religion” as including (i) a religion which involves belief in more than one god, and (ii) a religion which does not involve belief in a god. The definition was deliberately wide to comply with Article 9 of the European Convention of Human Rights which covers non-religious beliefs. Ever since the introduction of the statutory definition, the Charity Commission have attempted to narrow the definition down, no doubt worried by the width of beliefs which could qualify as a religion. By setting narrower criteria for “religion” to qualify in charity law this has involved the Charity Commission evaluating religious doctrine and practice. But in attempting to narrow down the scope of what is a “religion” for charity law the Charity Commission risks breaching the Charities Act 2011, European Convention of Human Rights and also departing from the tradition of the common law stance of standing neutral between religions and evaluating religious doctrine and practice.
- Human rights
Article 9 ECHR could limit the Charity Commission. The broad scope of Article 9 has the potential to severely limit the Commission’s powers to take account of religious doctrine and practice, including requiring changes, when deciding whether to register or remove charities from the register of charities.
Article 9 (1) reads as follows:
“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or in private, to manifest his religion or belief, in worship, teaching, practice or observance.”
The freedoms of thought, conscience and religion under Article 9(1) are absolute rights and may not be subject to any form of limitation or restriction: see Kokkinakis v Greece  ECHR 20 at . It is only the manifestation of religion or beliefs which may be subject to the limitations set out in Article 9(2): see R Meakin, The Law of Charitable Status Maintenance and Removal (CUP, 2008) 149-152. Refusal to register or even removal from the register will not restrict the freedom to adhere to a religion or belief but the loss of tax reliefs and the ability to fundraise may restrict the manifestation of religion or belief thus leading to a breach of Article 9(1).
Religious organisations need to have some assurance that their freedom to hold or adopt religious doctrines will not be interfered with by a secular body such as the Charity Commission except in extremely limited circumstances. This article has attempted to show that there are limits which the Commission needs to respect. This could be better reflected in the Charity Commission’s guidance.
 I am grateful to Frank Cranmer for reviewing the article on which this is based and for his comments.
 This would exclude harmful activities.
 Gilmour v Coats  AC 426 per Lord Reid at 459.
Cite this article as: Robert Meakin, “Taking the Queen’s Shilling: the implications for religious freedom of religions being registered as charities” in Law & Religion UK, 21 March 2017, http://www.lawandreligionuk.com/2017/03/21/taking-the-queens-shilling-the-implications-for-religious-freedom-of-religions-being-registered-as-charities/.