Charitable status, public benefit and “closed” congregations

The Exclusive Brethren associate only with each other: for example, they will not eat or drink with those with whom they do not share “table fellowship” and their services of Holy Communion are not open to non-members of the Church. And if they decide that a member has transgressed the rules of the church community, s/he may be “disfellowshipped” – in which case, the rest of the family may not associate with that person. They do have notice-boards outside their Gospel Halls advertising the times of services; but the understanding of the Charity Commission for England and Wales is that that is the limit of their engagement with the general public.

S 2(1) of the Charities Act 2011 provides that “For the purposes of the law of England and Wales, a charitable purpose is a purpose which (a) falls within section 3(1), and (b) is for the public benefit” and s 3(1)(c) includes “the advancement of religion” in the list of charitable purposes. The Charity Commission has therefore decided that the Exclusive Brethren’s Preston Down Trust does not pass the public benefit test.

The principle of public benefit as a necessary prerequisite of charitable status was established long before the Charities Act 2006: the modern authority is Gilmour v Coats [1949] AC 426, which determined that a bequest to an enclosed order of Carmelite nuns was not for the public benefit – and therefore not charitable – because the nuns did not engage with the public. What the Charities Act 2006 (consolidated into the 2011 Act) did was to give statutory effect to what was already in the common law.

The matter was raised in the House of Commons at Business Questions to the Leader of the House on 12 July (at c 495 of Commons Hansard) as follows:

Robert Halfon (Harlow) (Con): May we have an urgent debate on the anti-Christian behaviour and bias of the Charity Commission? A constituent has contacted me because the commission has revoked the charitable status of a trust that is part of the Brethren Christian Church, which does a lot of good work for charity. This is an extremely important test case because it has widespread implications for all Christian charitable trusts. Does the Leader of the House not agree that Christian groups that are serving the community have the right to charitable status and should not be subject to politically correct bias?

Sir George Young (Leader of the House): I am sure that the Charity Commission is not anti-Christian. I do not think that the organisation to which my hon. Friend refers has ever been registered as a charity, so it is not quite true to say that that status has been revoked. The application has been turned down because it was not clear whether there was enough social engagement with the community to meet the public interest criteria. As I understand it, that decision has now gone to appeal at the first tier, which I think is probably the right way to resolve it. I think he’s misunderstood and I don’t think that it does have ‘widespread implications for all Christian charitable trusts’.”

To which the short answer seems to be that – quite understandably – Mr Halfon may not have been entirely aware of the degree to which the Exclusives separate themselves from those whom they regard as “unbelievers” and was probably unaware of the rules about public benefit as a necessary prerequisite for charitable status.

As the Leader noted in his reply to Mr Halfon, the Exclusive Brethren have now decided to appeal to the First–tier Tribunal (Charity) against the decision of the Commission. The appeal was registered by trustees of the Preston Down Trust in Devon and the Horsforth Gospel Hall Trust in Leeds: notice was given on 19 July.

On 25 July Third Sector reported a Commission spokeswoman as saying that the decision to deny charitable status to the Preston Down Trust:

“… took into account the nature of Christian religion embraced by the trust and the means through which this was promoted, including the public access to its services and the potential for its beneficial impact on the wider community” and that the Horsforth Gospel Hall could be affected by the outcome of the case because “[i]t, along with a small number of Exclusive Brethren organisations, was registered prior to the implementation of the Charities Act 2006 on the basis of the law as it was then understood. The 2006 Act removed the presumption of public benefit from certain classes of charity including religious charities. The central issue in the appeal will be whether the public benefit requirement is satisfied in relation to Exclusive Brethren organisations under the law as it now is.”

She concluded that the Commission “welcomed this opportunity for the law to be clarified in this area as it affects the Exclusive Brethren”.

Comment: In another part of the legal forest, the Church of Jesus Christ of Latter-Day Saints is pursuing an appeal to Strasbourg over the refusal of the local Valuation Officer to give an exemption from business rates under the Places of Worship Registration Act 1855 to the LDS Temple and some of its associated buildings in Preston: see Church of Jesus Christ of Latter-Day Saints v Henning (Valuation Officer) [1964] AC 420, Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints [2008] UKHL 56 (30 July 2008) and Church of Jesus Christ of Latter-Day Saints v United Kingdom 7552/09 [2011] ECHR 733 (12 April 2011). The LDS lost in the domestic courts on the grounds that whatever Mormons do in their Temples it is not public worship. Not even all Mormons are allowed into a Temple – in order to be admitted they have to have a “Temple recommend” from the local bishop – and in no circumstances whatsoever are non-Mormons let in.

The position of the “Exclusive” Brethren looks very similar to that of the Mormon Temple cases: precisely what is “public” about a closed communion service? But as to Sir George’s assertion in the House of Commons that “I don’t think that it does have ‘widespread implications for all Christian charitable trusts’” I am not so sure as he seems to be. It very much depends on the precise terms of the First–tier Tribunal’s judgment. If it deals exclusively with the Exclusives then it is unlikely to have any more general impact; but if it is couched in very general terms it will require very careful reading indeed. But we’ll have to cross that bridge when we come to it.

Finally, the “Plymouth”, “Open” or Christian Brethren are a small Conservative Evangelical Church with very particular views on such matters as not having clergy and not having a set liturgy – the distinguished Biblical scholar Frederick Fyvie Bruce was one of their number. They have nothing whatsoever to do with any of the foregoing – but (with the honourable exception of Third Sector) press reports of the dispute keep confusing the issue by mentioning “Plymouth” Brethren, presumably because the authors do not fully understand the distinction between the two Churches.

Updates: Third  Sector subsequently reported that Rod Buckley, a member of Preston Down Trust, had told it later that it does, in fact, allow non-members to attend services.

For an Australian case on very similar facts, also involving the Exclusive Brethren, see Jensen & Ors v Brisbane City Council [2005] QCA 469 (14 December 2005), in which the Supreme Court of Queensland decided as follows:

“Private worship by a congregation is not ‘public worship’, at least insofar as that term is to be understood in the context of rating exemptions, and it does not become public worship because the congregation may decide to permit particular members of the public to attend that worship. ‘Public worship’ in the present rating context requires that the worship is in a place open to all properly disposed persons who wish to be present without vetting by a gatekeeper” (at para 49).


Cite this article as: Frank Cranmer, "Charitable status, public benefit and “closed” congregations" in Law & Religion UK, 27 July 2012,