In an earlier post we reported that notice of appeal to the First–tier Tribunal (Charity) had been given on 19 July against the recent decision of the Charity Commission to withdraw recognition from the Preston Down and Horsforth Gospel Hall Trusts of the Plymouth Brethren Christian Church (otherwise known as the “Exclusive Brethren” and not to be confused with the mainstream “Open” Christian Brethren).

The controversy over the Commission’s decision was fuelled by a letter in which the Commission’s Chief Legal Adviser referred to the decision in Independent Schools Council v The Charity Commission [2011] UKUT 421 (TCC) (13 October 2011), as follows:

“We think it is clear from the Upper Tribunal Tax and Chancery Chamber decision UKUT 421 (TCC)  that in so far as there was a presumption of public benefit, which was removed by section 3(2) of the 2006 Act (now section 4(2) of the Charities Act 2011), this related to the benefit aspect of public benefit and not the public aspect i.e. the extent to which a purpose has to be beneficial. This decision makes it clear that there is no presumption that religion generally or at any more specific level is for the public benefit, even in the case of Christianity or the Church of England (paragraph 85). The suggestion that some purposes to include the advancement of religion had a quality of being beneficial to the public which was sufficient to make it charitable was not agreed. It confirms that evidence must be brought in every case about the public benefit which a particular purpose achieves in the context of the particular institution unless that is considered to be so clear and obvious that no evidence needs to be adduced” [emphasis added].

It was the inclusion of the words “even in the case of Christianity or the Church of England” that sparked the controversy. (It should be said that what Kenneth Dibble did was to conflate para 84 g and para 85 of the judgment – which does not include the words that he cites in precisely that form. But the sentiments as he expresses them are not an unreasonable summary of what is actually in the two paragraphs.)

Anthony Collins Solicitors LLP has now issued a briefing on the latest developments in the controversy which repays reading in full. It reports the outcome of a meeting on 11 December between the Commission’s Chief Legal Adviser,  the Commission’s Head of Policy, two representatives of the Evangelical Alliance and Phil Watts (a Senior Associate in the charities team at Anthony Collins) at which the following clarifications and assurances were obtained:

• that under the current law the provision of services of public worship which are genuinely open to anyone to attend is in itself sufficient to satisfy the public benefit requirement even if, in practice, the numbers attending such services are small;

• that there is no difficulty in restricting access to the sacrament of Holy Communion in accordance with denominational requirements: difficulties only arise if restrictions are imposed upon access to the worship services of which the sacrament forms a part;

• that the Commission will not involve itself in matters of doctrine except where the outworking of particular doctrinal beliefs impacts upon the public benefit of the organisation: in practice, the Commission understands this to mean situations where the outworking of particular doctrines may give rise to detriment or harm, in which case this must be weighed against the positive public benefit in order to determine whether or not, on balance, charitable status is appropriate; and

• the Commission’s decision-making process is likely to become more streamlined, increasing the likelihood of appeals concerning decisions of the Commission having to be made to the First-tier Tribunal.

The Tribunal’s latest directions hearing was on 3 December.

In the House of Commons, Peter Bone, Conservative MP for Wellingborough, successfully presented a Ten Minute Rule Motion on 19 December that “leave be given to bring in a Bill to amend the Charities Act 2011 to treat all religious institutions as charities; and for connected purposes”. The motion was approved by 166 to 7. However, his bill is highly unlikely to make any further progress: one simply cannot imagine the Government countenancing amendment of the law in such a sensitive area except after considerable forethought and prior consultation.