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.