This guest post by Dr Russell Sandberg, Head of Law at Cardiff University, explores what the Charity Commission’s decision to reject an application for registration by the Temple of the Jedi Order (TOTJO) reveals about the developing definition of religion under English law. It develops a shorter article previously published in The Conversation.
The story so far
There is no common definition of religion under English law. Instead, there are different definitions (more often than not developed by courts and tribunals) in relation to different religious rights. That said, several ideas have become common to the case law both on charitable status and on the registration of places of religious worship.
To cut a long story (summarised here) short, the Court of Appeal in R v Registrar General, ex parte Segerdal  2 QB 679 held that worship in the form of ‘reverence or veneration of a God of a Supreme Being’ was required for the purpose of the Places of Religious Worship Registration Act 1855. Then Re South Place Ethical Society, Barralet v AG  1 WLR 1565 applied this to charity law, stating that ‘faith in a god and worship of that god’ was needed.
Statute law subsequently clarified that a belief in more than one god or no gods was included under charity law and the Charity Commission in decisions such as in relation to an Application for Registration of the Gnostic Centre (16.12.2009) applied its own guidance to develop a fourfold definition of religion. However, the Supreme Court decision in R (Hodkin) v Registrar General of Births, Deaths and Marriages  UKSC 77 concerning the Places of Religious Worship Registration Act 1855 questioned this approach by overruling Segerdal.
The Charity Commission’s decision to reject an application for registration by the Temple of the Jedi Order (TOTJO) reveals how the Hodkin decision has affected its understanding of the definition of religion.
The decision notes that the ‘definition and characteristics of religion for the purposes of charity law are distilled’ from statutes and cases on charity law and their published guidance, which is now influenced by the Supreme Court decision in Hodkin although it ‘did not relate to a matter of charity law’ .
It may be questioned whether the legal definition of religion should be distilled from soft law sources such as published guidance and the extent to which Hodkin, a decision which the Supreme Court was at pains to stress applied only for the purpose of the Places of Religious Worship Registration Act 1855, should influence charity law. However, the remainder of this post will explore how the Charity Commission now interprets their fourfold definition of religion.
Belief in one or more gods or spiritual or non-secular principles or things
This first requirement is the revised version of the ‘faith in a god’ test from Re South Place Ethical Society. The reference to ‘spiritual or non-secular principles or things’ seems to be new and inspired by Hodkin. By contrast, in the Gnostic Centre decision, the Commission spoke of a ‘belief in a god (or gods) or goddess (or goddesses), or supreme being, or divine or transcendental being or entity or spiritual principle, which is the object or focus of the religion’.
The Charity Commission recognised that ‘the statutory definition of religion includes religions which do not involve belief in a god’  but held that since there was ‘scope for Jediism and the Jedi Doctrine to be advanced and followed as a secular belief system’: this meant that ‘Jediism therefore lacks the necessary spiritual or non-secular element’ .
This is a curious argument, since the epitome of a belief that does not involve belief in a god would be atheism. Yet, atheism would also seem to lack the ‘necessary spiritual or non-secular element’. This interpretation would seem to suggest that religions that do not involve belief in a god will only be religions if they are spiritual and non-secular.
The Charity Commission noted that ‘in Hodkin Lord Toulson did distinguish and exclude secular belief systems from the description of religion’  but, as that judgment pointed out, that made sense in the context of the registration of premises for the solemnisation of marriage because there are other legal provisions which allow for secular wedding services on approved premises. In contrast, there is no argument for making a distinction between secular and non-secular beliefs for the purpose of charity law.
The Charity Commission’s logic means that secular beliefs can only be charitable if they fulfil a different charitable purpose such as the promotion of moral or ethical improvement. This seems out of sync with the general direction of religion law with human rights and equality laws protecting both secular and non-secular worldviews. It is correct that such laws protect ‘religion or belief’ rather than just ‘religion’ but an argument could be made that the narrow approach taken by the Charity Commission is incompatible with Article 9 ECHR. Surely it is time for consistency across the board in terms of the protection of secular worldviews.
Relationship with the gods, principles or things which is expressed by worship, reverence and adoration, veneration, intercession or by some other religious rite or service
This second requirement is the revised version of the ‘worship of a god’ test from Re South Place Ethical Society. It is questionable whether worship should be a compulsory definitional attribute for the purposes of charity law especially given that Segerdal (the case upon which Re South Place Ethical Society relied) is no longer good law.
It is also noticeable that this section of the Charity Commission’s decision does not cite Hodkin. There the Supreme Court did not regard ‘worship’ as part of the definition of ‘religion. It explored the definition of the word ‘worship’ separately from its discussion of the definition of religion and held that the Segerdal test was ‘unduly narrow’, that the term should be interpreted as being ‘wide enough to include religious services’ and that determining ‘fine theological or liturgical niceties’ was ‘more fitting for theologians than for the Registrar General or the courts’.
It seems that the Charity Commission disagrees. In contrast, it noted that despite evidence of meditation, sermons and ‘transcripts of the Live Services’, Jediism did not meet this second requirement. Curiously, two factors were singled out in this part of the decision: the fact that ‘TOTJO is an entirely web-based organisation’  and ‘that Jediism may be adopted as a lifestyle choice as opposed to a religion’ .
This seems to be a conservative approach, rejecting the possibility that religious activity can occur online and policing a rigid and artificial line between religion and lifestyle choices which is out of sync with religion law tendencies to regard religious groups like any other voluntary associations. The Commission placed weight upon TOJO’s statement that it is ‘an online space for anyone to explore non-denominational spirituality’. It is troubling that being open and ecumenical in outlook has the consequence of being denied charitable status.
Cogency, cohesion, seriousness and importance in the form of the belief system
The third requirement was adopted from the case law on Article 9 ECHR. This has long been the practice of the Commission but it is worth noting that the Supreme Court judgment Hodkin did not rely upon the ECHR case law. The approach of the Commission is preferable to Hodkin, given the requirements of the Human Rights Act 1998. However, the way in which this requirement has been articulated is problematic in two respects.
First, the Commission states that Jediism is not a ‘sufficiently cogent and distinct religion’ . No authority is given for this requirement that a religion needs to be ‘distinct’. Indeed, many religions have much in common and religions often develop from one another.
Second, the Commission states that there ‘is insufficient evidence of an objective understanding of Jediism as opposed to a self-defining system which may be pursued outside the confines of a religion and in a secular manner’ and places weight on the fact that ‘it is not obligatory to interpret and follow the Jedi Doctrine as a religion’ . The Commission considered that:
‘Any cogency and cohesion that is present is eroded by the individual’s ability to develop themselves within a loose framework and follow an individual experiential philosophy or way of life as a secular belief system’ 
This would rule out individualised religious experiences. It is contrary to the principle expressed in R (Williamson & Ors) v Secretary of State for Education and Employment & Ors  UKHL 15 that: ‘Freedom of religion protects the subjective belief of an individual’ . The Strasbourg decision in Eweida and Others v United Kingdom (2013) 57 EHRR 8 underscores how individuals can manifest their religion by practices that they do not share with their co-religionists and which are not obligatory according to their faith.
Doctrines and practice of benefit to the public – capable of providing moral and ethical value or edification to the public
The fourth requirement follows the Charity Commission’s practice following the Charity Act 2006 to incorporate a public benefit requirement into the Charity Commission’s definition of religion.
There is an argument here as to whether the Charity Commission’s understanding of the public benefit test in relation to the advancement of religion is correct and whether incorporating this into the definition muddies the Commission’s own distinction between identifying whether the trust has met a description of charitable purposes and identifying whether there is a public benefit. However, these are broader issues that are outside the scope of this blog post.
It is clear that from the first three requirements that the decision by the Charity Commission in relation to Jediism constitutes a development in their understanding of the definition of religion in ways that are problematic.
In relation to the first requirement, the influence of Hodkin has been significant and has led to the adoption of a distinction between the secular and non-secular that is less appropriate outside the context in which Hodkin was concerned.
By contrast, in relation to the second requirement, Hodkin has seemingly been ignored and instead a questionable distinction has been made between religion and a lifestyle choice and it has been suggested that the first cannot exist entirely online.
And in relation to the third point, a requirement that a religion needs to be ‘distinct’ has been added to the ECHR case law and the Commission seems to have been operating from an assumption that religions can be objectively described, are obligatory upon members and members are uniform in how they manifest their religion.
The understanding of the definition of religion for the purposes of charity and registration law is now hideously confused. Without questioning the actual decision, elements of the reasoning by the Charity Commission are cause for concern: following Hodkin slavishly in some respects but ignoring it in others and introducing a plethora of new assumptions and requirements that are deeply questionable. There is now a desperate need for the definition question to be revisited and for reform that increases clarity and inclusiveness.
Cite this article as: Russell Sandberg, “The Farce Awakens: Why the Charity Commission’s decision on Jediism reveals a need to revisit the definition of religion” in Law & Religion UK, 22 December 2016, https://www.lawandreligionuk.com/2016/12/22/the-farce-awakens-why-the-charity-commissions-decision-on-jediism-reveals-a-need-to-revisit-the-definition-of-religion.
Or we could simply remove the advancement of religion from the list of charitable purposes. https://petition.parliament.uk/petitions/168835
You could, but it would require primary legislation.
“a need to revisit the definition of religion”
I can see only two ways of “revisiting” the legal definition (or definitions, plural) of religion.
The first is for a case to reach a senior court that allows this, and for the court to incorporate as much reasoning based on previous case law as possible in its judgment, and to snipe at case law that it regards as outdated, and then to really go to town commenting, obiter, on authorities that aren’t decisive, just to make sure that all the definitions are revisited. Senior courts don’t do this often, about any topic.
The second is for Parliament to pass (say) The Definition of Religion Act. I cannot foresee this would be likely to avoid divisive controversy.
Why is it needful to unify the definition of religion, across all law (including Common Law, Statute and the “Spirit and Intendment” of the preamble to repealed legislation)? What really damaging uncertainty would such an exercise end?
A senior court did look at the definition of “religion”: the UKSC did so in Hodkin.
Russell will no doubt have his own views, but my own reason for a unified definition would be the principle of legal certainty. I cannot see why there should be one working definition of “religion” for the purposes of the Places of Worship Registration Act 1855 and another for the purposes of charity law in England & Wales. But that point, of course, is directed only to the issue of definition; the next question is whether a particular religion provides sufficient public benefit to be charitable – and that is a matter properly within the judgment of the Charity Commission.
How is “public benefit” measured such that it may be determined as “sufficient” or insufficient?
That’s something I’ve often wondered myself. What precisely constitutes “sufficient public benefit” seems to be a concept laid up in the mind of the Charity Commission.
The classic case is “poor relations trusts”, which can have a very restricted pool of beneficiaries. The question of their charitable status was referred to the Upper Tribunal by the Attorney: it held that they could be charitable: see Charity Commission for England and Wales & Ors v HM Attorney General  FTC/84. I can’t find the judgment on the Web but there’s a good briefing on it here.
You wrote, “My own reason for a unified definition would be the principle of legal certainty.”
I had anticipated this response, when I had asked, “What really damaging uncertainty would such an exercise end?”
My view is that legal uncertainty is wrong in principle. The maxim ignorantia iuris neminem excusat is hardly reasonable if one cannot be certain what the law is.
“The maxim ignorantia iuris neminem excusat is hardly reasonable if one cannot be certain what the law is.”
I assumed that the maxim was based upon the biblical teaching that God ordains secular government, so that princes and rulers had the duty (to God) of punishing wrongdoers, in order to protect the innocent. Obeying a good conscience, ought to lead to obedience of good law, without knowing the law, thought rulers, who flattered themselves that they ruled well.
If government is intending to add redefining religion to its earlier redefinition of marriage, it might as well go the whole hog, deciding which religions, and parts of religions, teach British values, criminalising all other religions and part of religions. (That’s pretty much what most government has done, throughout history, apart from occasional and temporary outbreaks of liberal democracy, such as the recent one in the UK in the twentieth century, which ended early this century.)
I never assumed that the maxim had anything to do with biblical teaching at all; but, whether it has or not, it has become a fundamental assumption about the way the common law works. But the corollary, in my view, is that if you cannot know for certain what the law is, then it is unreasonable to expect you to obey it.
Nor can you always work it out from first principles or general knowledge. Everyone knows that murder is illegal – for no other reason than sentences for murder are reported in the media. But, for example, whether or not consideration is a necessary element in order to conclude an enforceable contract (other than a contract executed under seal) is not a matter that you can deduce from some moral principle: the law of England & Wales and the law of Scotland are different and, so far as I am aware, consideration is not a doctrine known to Scots law. That situation has nothing to do with biblical teaching or moral judgment: it’s simply a result of the two systems having evolved differently and of taking different views on the necessary elements for the formation of an enforceable contract. And, of course, the basic principles of Scots private law are derived from Roman (or, at any rate, Roman-Dutch) law, rather than from common law.
As to your third paragraph, if the UK Government decided to criminalise those religions that did not teach “British values”, it might find itself in difficulties before both the higher courts in England & Wales and the ECtHR.
But we are clearly not going to agree on this, so there’s not much point in pursuing the matter further.
Perhaps I expressed myself badly.
I understand what sorts of problem legal uncertainty can pose in general, that legal uncertainty is an evil to avoid, proportionately.
I understand the rationale of the maxim “ignorantia iuris neminem excusat”, a principle not often invoked in civil law either side of Hadrian’s Wall, but invoked in criminal law often enough, I dare say (not being much of a lawyer myself).
I venture that the maxim’s rationale in criminal law is that a rascal out to have realised that his morally wrong conduct might have been criminal, and that right or morally neutral conduct ought never to have been criminalised in the first place. I mentioned Christian ethics based upon Romans 13 as a mere example of one occurrence of the traditional wisdom that underpins this rationale, addressing the relationship of those who govern by legislation (in the apostle Paul’s day, Caesars), and those whom they govern.
I should have mentioned the legal principle of not crossing bridges before one comes to them, and how dicta in a judgment that are not needed to see how the court arrived at its decision on certain unique facts, therefore tend to end up being labelled “obiter”, if I understand how English law works at all.
It is the thought that trying to have only one definition of “religion” at law, could be disproportionate. It would end all uncertainty, for sure. But it would cross all possible bridges, including many that no litigants had yet come to.
I see the prospect of unifying all the strands of law that address what the word “religion” means, in this or that context, as requiring primary legislation, or a fortuitous, mightily complicated case popping up as if from nowhere, in which the parties pleaded several different causes of action and counterclaims or defences, in one set of pleadings – touching upon charitable status, inheritance tax, registration as a charity, a trust actually having charitable objects, having the Convention right to express one’s religion, etc.
We cannot make the latter happen. Those in a hurry for the government to define “religion” once-and-for-all, would therefore have to lobby for a statutory definition of religion, enacted by Parliament. I can foresee bitter trench warfare that will make the LGBT Hundred Years Culture War presently underway look almost civilised, if that idea, of enacting a Definition of Religion Act, catches on.
Evidently we aren’t so far apart as I thought we were. I agree: we’ll only produce a unified definition of “religion” either by legislation or by a Supreme Court judgment that happens to tick all the boxes that you list – which is fairly unlikely.
Part of the problem is the piecemeal way we make legislation, so that, for example, s 3(2)(a) Charities Act 2011 states that “’religion’ includes— (i) a religion which involves belief in more than one god, and (ii) a religion which does not involve belief in a god” – which doesn’t tell you very much, except to bury the definition in Segerdal. The working description provided by Lord Toulson in Hodkin it, to my mind, much more useful – but it’s not expressed in language that could be incorporated easily into a statute.
One minor point with which you may disagree: I wonder whether, in reality, it is always possible to draw a hard-and-fast distinction between what it ratio and what is obiter. In some judgments, they seem to coalesce.
An easy solution would simply be to repeal the HRA, which would remove the need for the kind of artificial intellectual sophistry that always seems to result from trying to marry English common law with European principles of equality.
I’m not sure that repealing the HRA would make much difference in this particular case. In Hodkin, Article 9 ECHR was only mentioned twice, in passing:
“Religion and English law meet today at various points. Charity law protects trusts as charitable if they are for the advancement of religion. Individuals have a right to freedom of thought, conscience and religion under Article 9 of the European Convention [of Human Rights]. They enjoy the right not to be discriminated against on grounds of religion or belief under EU Council Directive 2000/78/EC and under domestic equality legislation” [32: my emphasis].
The problem, in my view, was the judgments in Segerdal which, I would argue, were misconceived even by the standards of 1970. For the Court to say that religion involves belief in a god and then to make an exception for Buddhism simply defied logic. Lord Toulson’s summary in Hodkin at , even if “intended to be a description and not a definitive formula” makes much more sense, to me at any rate.
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