Gilmour v Coats Revisited: a study in the law of public benefit

In a guest post, Robert Meakin of Stone King LLP reassesses one of the leading cases on public benefit and the advancement of religion.

1.  Introduction

This article [1] revisits the case of Gilmour v Coats [1949] AC 426, [1949] UKHL 1. It is a timely moment to revisit the case because there is doubt about the requirement of public benefit for charities with purposes to advance religion. The case deals with the issue of private religious practice and the extent to which a religious organisation needs to engage with the public. These are live issues which need resolving and therefore it is a good moment to challenge the assumptions made in Gilmour v Coats.

One of the most influential aspects of the case was the high bar it set for passing the test of public benefit for religious charities[2] and its insistence that religious charities should be “beneficial”.[3] This has led to the Charity Commission issuing guidance requiring charities to have “an identifiable, positive, beneficial moral or ethical framework that is promoted by religion which demonstrates that the religion is capable of impacting on society in a beneficial way.”[4] The Gilmour v Coats decision shows the danger of assessing religious beliefs and practice in the context of public benefit other than to exclude religions which are harmful to the public.

It is also an opportune time to revisit the case as the Charity Commission has in recent years felt able to distinguish decisions of the court and claim not be bound by such decisions where there are, inter alia, subsequent changes in the legal framework,[5] including the abolition of the presumption of public benefit[6] when the presumption plays a significant part of the decision. It is arguable that Gilmour v Coats does not bind the Charity Commission for these reasons.

2.  The facts of the case

Before exploring these issues further, a brief summary of the facts of the case is necessary.  By a Declaration of Trust made on 10 June 1946, the donor, Evelyn Coats settled a sum of money on trust, if the purposes of the Roman Catholic Carmelite Priory, St Charles Square, Notting Hill were charitable. The contemplative orders are so called to distinguish them from the active orders which engage in exterior works such as teaching, nursing and tending to the poor. It was said in the affidavit that it was the teaching of the Roman Catholic Church that the prayers and mortifications of the contemplative and practising religious were especially efficacious in view of the high degree of union with God which resulted from the following of their vocation. Lastly, it was claimed that the practice of the religious life of the Carmelite nuns and other religious was a source of edification to other Catholics and some non-Catholics.

The House of Lords unanimously held that the purposes of the Priory were not charitable in law as they lacked the necessary element of public benefit. The benefit of intercessory prayer to the public was not susceptible of legal proof and the court could only act on such proof.

3.  Did Gilmour v Coats set the public benefit bar too high?

The bar set by the Court of Appeal in Coats v Gilmour was very high. Lord Greene MR said: “The contrary of ‘beneficial to the public’ is not ‘detrimental to the public’, but ‘non-beneficial to the public’”[345].

A later decision of the court suggests this standard was too high. In Re Watson [1973] 1 WLR 1472[7] Plowman J ruled that if there was evidence that the purpose was subversive to all mankind then the presumption of public benefit would be rebutted. Although the Charity Commission’s guidance[8] takes a tougher stance than that taken in Re Watson, it is arguable that the common law today would be more accepting of an enclosed religious order.

4.  The Modern Context

Gilmour v Coats needs to be considered in the modern context.

4.1  The Law is Unclear

There is a lack of certainty as to the law on public benefit and charities for the advancement of religion following the abolition of the presumption of public benefit by the Charities Act 2006.  This has been acknowledged by the Government.[9]  In particular, it is not clear to what extent a level of external engagement is required for a religious organisation.

On the one hand, a retreat house open to the public was held not to be charitable as the retreat activity was held to be for the private consumption of the individual, notwithstanding that the individual returned to the wider world after the retreat.[10]  On the other hand, a Jewish synagogue with few attenders was held to be charitable as they were free to engage with the wider world.[11]  It is difficult to reconcile decisions like this but it does suggest that, had the evidence of public engagement been presented in Gilmour v Coats, the outcome might have been different.  It has been accepted by the Charity Commission that, if there is evidence of external interface with the public, this could swing the balance of public benefit in favour of determining that a religious organisation is charitable.[12]  The Charity Commission often presents Gilmour v Coats as clear law that private religious worship by an enclosed religious community is not charitable[13] but as shown in this article, the position is not clear.

More generally, following the abolition of the presumption of public benefit by s 3(2) Charities Act 2006, all charities will have difficulty in proving that intangible benefits, such as prayer, satisfy the requirement of public benefit. The requirement of public benefit under the old fourth head was usually satisfied by demonstrating that tangible and objective benefits flowed from the purpose in question. If benefits were intangible, then the court previously required evidence that such benefits were improved “by the common understanding of enlightened opinion for the time being” or a “general consensus of opinion or understanding”: see National Anti-Vivisection Society v IRC [1948] AC 31, [1947] UKHL TC 28 311 per Lord Wright at 49 and 47. This will at times be difficult.  For example, the court in National Anti-Vivisection Society rejected arguments that the suppression of vivisection contributed to any assumed advancement of morals and therefore any tangible or intangible public benefit because these arguments were outweighed by the benefits of medical research in public health.[14]

To develop the point further in the context of religious activities, in an increasingly secular society religion and religious practice will arguably be vulnerable to attack if the previous fourth head analysis of intangible benefits which relate to public opinion are applied to all charities, including those with objects to advance religion.  It suggests that to be accepted as charitable, a religion might eventually need to show that it is conducting secular charitable activities (i.e. relief of poverty, welfare etc) to pass the public benefit test.

The issue of private religious practice and the extent to which a religious organisation needs to engage with the public continues to be an issue for the Charity Commission and the court.  These issues were recently considered by the Commission when deciding whether to register the Plymouth Brethren Trust.[15]

4.2  Recent Developments

This approach was taken into account by the court in Church of Jesus Christ of Latter-Day Saints v UK [2014] ECHR 227 when awarding the Mormons charity business rate relief in respect of Mormon chapels.

The case was about whether the Church was entitled to business rate relief as a place of “public religious worship” under the Local Government Finance Act 1998 rather than directly about charitable status; however, the Mormons were held not to be entitled to full exemption from business rates in respect of Temples which were only open to Mormons rather than to the general public.  The court held that the Temple worship was not “a place of public worship” because it was not “public” and the Mormon Church only qualified for the normal 80% charity exemption rather than the extra 20% exemption as a place of “public religious worship”[16] giving a 100% relief.

It was argued by the Church [21] that Temple worship, by its very nature as understood by its believers, required that only those who voluntarily lived by the kinds of commitments made in the Temple should be allowed to participate.  The Mormons argued that this was not a case of worship being made private for the purposes of being exclusive or to provide private benefit; it was because the very nature of the worship as understood by its believers required privacy to promote the sacred character of the worship. The Church argued that a relevant analogy would be to insist that the place of public religious worship tax exemption be denied to that space devoted to confessions in Catholic churches or the area behind the Iconostasis in Orthodox churches.

The argument, that the Mormon church was discriminated against under Article 14 ECHR (Freedom from discrimination) was rejected by the court as it pointed out that other Churches had similar losses of tax relief, such as the Church of England’s private chapels.

Conclusion

This article has shown that it is no longer safe to regard Gilmour v Coats as providing a clear view of what the legal position is in respect of private religious worship by religious groups detached by the general public. There needs to be a reappraisal of the case with a fresh approach to the question of public benefit and religious organisations. It is suggested that this conclusion calls for a reassessment of the public benefit guidance provided by the Charity Commission.

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[1] I am grateful to Frank Cranmer for reading and commenting on this article.  A longer version of this article is being published in (2016) Law and Justice 177 and is partly reproduced by kind permission of the editor.

[2] See para 3 of this article.

[3] Coats v Gilmour [1948] Ch 340 per Lord Greene MR at 345.

[4] Charity Commission 2011: The Advancement of Religion for the Public benefit D2L.

[5] See Decision of the Charity Commissioners for England and Wales, made 2 April 2001, relating to the Application for Registration as a Charity for the General Medical Council.

[6] See Charity Commission For England and Wales Preston Down Trust.  Application for Registration of the Preston Down Trust Decision of the Commission 3 January 2014 paras 37 – 43.  Although note that section 4(3) Charities Act 2011 appears to preserve the case law on public benefit before the passage of the Charities Act 2006 which the 2011 Act now incorporates.  The matter is still in doubt.

[7] This was more in keeping with the liberal approach of the court to religious practice found in Thorton v Howe (1862) 31 Beav.13.

[8] The Advancement of Religion for the Public Benefit D2L.  For a critical review of this guidance see Peter Luxton and Nicola Evans “Cogent and Cohesive? Two Recent Charity Commission decisions on the advancement of religion” The Conveyancer and Property Lawyer 75 (2) 144-151.

[9] See (1) the Government’s response to Lord Hodgson’s review (Government Response to (i) the Public Administration Select Committee (PASC) Third Report of 2013 – 14 and (ii) Lord Hodgson’s Statutory review of the Charities Act 2006) and (2) the PASC review of the 2006 Act (Third Report of 2013) 14. The role of the Charity Commission and public benefit.  Past legislative scrutiny of the Charities Act 2006) 11.

[10] Re Warre’s Will Trust [1953] 1 WLR 725.  The opposite conclusion was reached in Re Banfield [1968] 1 WLR 846.

[11] It had 30 to 40 attenders when the charity was formed: see Neville Estates v Madden [1962] Ch 832 at 835.

[12] See Preston Down Trust Application for Registration of the Preston Down Trust Decision of the Commission 3rd January 2014 para 48.

[13] The Advancement of Religion for the Public Benefit E.4.

[14] For an example of the Charity Commission’s approach, see Promotion of the quality and diversity for the benefit of the public, 14 July 2003.

[15] See Charity Commission for England and Wales Preston Down Trust Application for Registration of the Preston Down Trust Decision of the Commission 3rd January 2014 paras 76-78 & 80.

[16] Local Government Finance Act 1998, Schedule 5, para 11.

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Cite this article as: Robert Meakin, “Gilmour v Coats Revisited: a study in the law of public benefit” in Law & Religion UK, 28 November 2016, https://www.lawandreligionuk.com/2016/11/28/gilmour-v-coats-revisited-a-study-in-the-law-of-public-benefit/.

For discussion of the most recent case, see Charity Commission refuses to register Jediism as charitable.

2 thoughts on “Gilmour v Coats Revisited: a study in the law of public benefit

  1. May I, as a layman with an interest in charity law dating back several decades, comment on this article by Robert Meakin?

    He claims (footnote 6) that “section 4(3) Charities Act 2011 appears to preserve the case law on public benefit before the passage of the Charities Act 2006 which the 2011 Act now incorporates” – but section 4(3) is expressly subject to 4(2) which says that “In determining whether the public benefit requirement is satisfied in relation to any purpose falling within section 3(1), it is not to be presumed that a purpose of a particular description is for the public benefit.”

    Parliament has unambiguously said that there shall be no presumption that religious (or any other) causes are charitable: they have to be for the public benefit. The Government (in the response to the PASC that Mr Meakin references) rejects the idea of “restoring or creating a presumption of public benefit for a particular class or classes of charity” – and rightly so: what is in question is not some penumbra of self-satisfaction but the very tangible benefit of tax exemptions at public expense, and understandings of what is for the public benefit change over time.

    Mr Meakin recognises this in this key passage:

    “To develop the point further in the context of religious activities, in an increasingly secular society religion and religious practice will arguably be vulnerable to attack if the previous fourth head analysis of intangible benefits which relate to public opinion are applied to all charities, including those with objects to advance religion.”

    Is there not some special pleading here? Mr Meakin seeks both to minimise Parliament’s requirement for public benefit and to deplore the age-old test of “the common understanding of enlightened opinion for the time being”. On that basis, we should still be forgoing public revenue to subsidise such charitable uses as endowing the “Mariages of poore Maides . . . redemption of Prisoners or Captives . . . and [the] aide or ease of any poore Inhabitantes concerninge paymente of . . .Taxes”.

    Opinion has changed over tax relief for ransoms paid to terrorists. It is quite proper that as opinion changes other previously charitable activities should be subject to fresh scrutiny. A more demanding approach to some causes from the religious fringe is entirely legitimate and a formulaic acceptance of anything labelled religious is highly objectionable. Given the courts’ inability to distinguish between religions on truth or merit, how else shall we cope with damaging religions such, for example, as those African-based cults involving casting out demons from young children, than by a strong test of public benefit?

    Gilmour v Coates established that private religious practice does not create public benefit. Mr Meakin’s case that this principle is now in doubt lacks substance. Apart from the inevitable marginal lack of certainty on public benefit, it amounts to his suggestion that if different evidence had been led, the decision might have been different – so what? None of the cases he cites shows that purely private religious practice may be ruled charitable – in its recent Preston Down decision the Commission, along with revised trust deeds, accepted (albeit tenuous) evidence of public access to worship (just as in Neville Estates v Madden), in the Latter-Day Saints case the church lost in Strasbourg on all counts, and the Commission’s ‘tougher stance’ rejecting the judge’s sweeping generalisation in Re Watson was patently justified.

    Harmlessness (as with the Carmelite Priory’s intercessory prayer as in Gilmour) is not enough to justify public financial subsidy. If anything the law should go in the opposite direction and demand clearer demonstration of public benefit along with a stricter rule on disqualification in the case of any public disbenefit.

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