Taking the Queen’s Shilling: the implications for religious freedom of religions being registered as charities

This guest post by Robert Meakin is an abridged version of a forthcoming article in the next edition of Law & Justice and is published here with the kind permission of the Editor, John Duddington. 

Introduction

There have been concerns recently about whether religions might have religious doctrines and practices challenged if they are registered as charities.[1] This article looks at possible grounds to challenge the Charity Commission, including the common law principles of non-justiciability, charity law (the definition of religion and public benefit) and human rights.

Grounds for challenging the Charity Commission’s approach to religious charities

  • The Principle of Non-Justiciability

The first potential limit would be to argue that the Commission could be potentially breaching the principle of non-justiciability. There is a general principle in English law that the court will not become involved in the internal regulation or determination of beliefs within religious organisations which is called the non-justiciability principle: see generally R Sandberg, Law and Religion (CUP, 2011) 74-76. In the context of charity law it was expressed by Lord Reid in Gilmour v Coats [1949] AC 426 at 455 as follows:

“No temporal court of law can determine the truth of any religious belief: it is not competent to investigate any such matter and it ought not to attempt to do so.”

  • The public benefit debate

The law of public benefit might also limit the Charity Commission. There is currently a debate in the area of public benefit. Either the common law of public benefit still applies because the presumption never existed and the court and the Commission cannot generally evaluate religious doctrine and practice to determine whether a religious organisation is a charity except in limited circumstances[2] or the common law of public benefit existed but has now been abolished but in doing so will be limited by the underlying principles upon which public benefit was based.

  • The presumption of public benefit never existed and the Commission can only look at religious doctrine and practice in rare circumstances

S 4(3) Charities Act 2011 appears to preserve the common law of charitable status and public benefit as it says that: “…any reference to the public benefit is a reference as that term is understood for the purposes of the law relating to charities in England and Wales.” When issuing guidance pursuant to s 17(1) Charities Act 2011, the Charity Commission must base such guidance on the law. If section 4 (3) preserves the law on public benefit then the Charity Commission will be limited when issuing that guidance. If this is correct, then the Commission and the court are bound by the common law of public benefit and limited in their ability to judge religious doctrine and practice when determining public benefit.

  • The presumption of public benefit existed and is now abolished but the Commission is limited in the extent to which it can look at religious doctrine and practice by the underlying legal principles upon which public benefit was based

If the presumption of public benefit existed and is now abolished then the court and the Commission will need to apply the underlying principles upon which the presumption was based. This would arguably allow the Commission to evaluate religious doctrines and practices of a religion but this, in turn, will present problems.

One of those underlying principles is that, the law “…assumes that it is good for man to have and to practise a religion…”.[3] This is presumably on the basis that the advancement of religion is beneficial to mankind because it provides a moral code and therefore encourages good behaviour. The problem is that many of the religions that are controversial are remarkably similar to established religions in terms of doctrine. It follows that it will generally be quite easy for them to satisfy this element of the public benefit test.  For example, in Founding Church of Scientology v United States 409 F 2d 1146 – Court of Appeals, Dist. of Columbia Circuit 1969, the Court concluded that Scientology had many of the characteristics of other recognised religions. Furthermore, the Court also concluded that the theories of Scientology relating to auditing and the claimed curative powers for the process were not properly subject to courtroom evaluation as to truth or falsehood.

Should the Church of Scientology ever decide to test the Charity Commission’s decision in court the outcome might be different.

  • The statutory definition of religion and Charity Commission criteria

The definition of “religion” for the purpose of charity law is now contained in statute. Previously, the common law definition of religion for charity law was monotheistic but this has now been widened. Theoretically, it should have strengthened the position of religions as it has widened the scope of the definition of “religion” for the purpose of charity law.  The Charities Act 2006 definition is now contained in the Charities Act 2011 which defines “religion” as including (i) a religion which involves belief in more than one god, and (ii) a religion which does not involve belief in a god. The definition was deliberately wide to comply with Article 9 of the European Convention of Human Rights which covers non-religious beliefs. Ever since the introduction of the statutory definition, the Charity Commission have attempted to narrow the definition down, no doubt worried by the width of beliefs which could qualify as a religion. By setting narrower criteria for “religion” to qualify in charity law this has involved the Charity Commission evaluating religious doctrine and practice. But in attempting to narrow down the scope of what is a “religion” for charity law the Charity Commission risks breaching the Charities Act 2011, European Convention of Human Rights and also departing from the tradition of the common law stance of standing neutral between religions and evaluating religious doctrine and practice.

  • Human rights

Article 9 ECHR could limit the Charity Commission. The broad scope of Article 9 has the potential to severely limit the Commission’s powers to take account of religious doctrine and practice, including requiring changes, when deciding whether to register or remove charities from the register of charities.

Article 9 (1) reads as follows:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or in private, to manifest his religion or belief, in worship, teaching, practice or observance.”

The freedoms of thought, conscience and religion under Article 9(1) are absolute rights and may not be subject to any form of limitation or restriction: see Kokkinakis v Greece [1993] ECHR 20 at [33]. It is only the manifestation of religion or beliefs which may be subject to the limitations set out in Article 9(2): see R Meakin, The Law of Charitable Status Maintenance and Removal (CUP, 2008) 149-152. Refusal to register or even removal from the register will not restrict the freedom to adhere to a religion or belief but the loss of tax reliefs and the ability to fundraise may restrict the manifestation of religion or belief thus leading to a breach of Article 9(1).

Conclusion

Religious organisations need to have some assurance that their freedom to hold or adopt religious doctrines will not be interfered with by a secular body such as the Charity Commission except in extremely limited circumstances. This article has attempted to show that there are limits which the Commission needs to respect. This could be better reflected in the Charity Commission’s guidance.

Robert Meakin

[1] I am grateful to Frank Cranmer for reviewing the article on which this is based and for his comments.

[2] This would exclude harmful activities.

[3] Gilmour v Coats [1949] AC 426 per Lord Reid at 459.

Cite this article as: Robert Meakin, “Taking the Queen’s Shilling: the implications for religious freedom of religions being registered as charities” in Law & Religion UK, 21 March 2017, https://www.lawandreligionuk.com/2017/03/21/taking-the-queens-shilling-the-implications-for-religious-freedom-of-religions-being-registered-as-charities/.

7 thoughts on “Taking the Queen’s Shilling: the implications for religious freedom of religions being registered as charities

  1. Mr Meakin suggests that “The definition [of charity in the 2006 Act] was deliberately wide to comply with Article 9 of the European Convention of Human Rights which covers non-religious beliefs”. Not so: the British Humanist Association argued long and hard throughout the preceding consultation process and the passage of the Act that ‘advancement of religion’ should be extended, in accordance with the European Convention and the Human Rights Act to ‘advancement of religion or belief’ precisely so as to cover non-religious beliefs such as Humanism. The Government blankly refused. The definition of religion to include religions that have no god was instead designed to bring in non-theistic religions such as Jainism and Buddhism.

    As to public benefit, there was no doubt in Parliament in 2006 when it debated what is now section 4 of the 2011 Act that there existed a presumption that “a purpose of a particular description is for the public benefit” (4(2)) – and the plain intention as stated in that subsection was to abolish the presumption. Parliament had in mind in particular education (and public schools) and religion. The provision in 4(3) referring to existing charity law and quoted by Mr Meakin is specifically subordinated to this ‘no presumption’ provision by subsection 4(4). The intention was that the Charity Commission should not automatically accept that religious organisations qualified as charities by virtue of being religious but should examine the facts of the matter.

    In so doing, the Commission is highly unlikely to give a moment’s thought to the dictum of Lord Reid nearly 70 years ago that the law “… assumes that it is good for man to have and to practise a religion …” It was outrageous at the time, but today within the dominant framework of human rights and non-discrimination law it is as dead as a dodo – see (for example) Lord Nicholls at para 24 and Lord Walker at para 55 in re Williamson [UKHL 2005].

    Nor does the Commission need to narrow the definition of religion as suggested by Mr Meakin: rather than look at religious doctrines the Commission needs to examine the real-life effects of the religion in question – whether those be as extreme as some evangelical sects’ embrace of physical assaults on children to drive out supposed witches or less extreme practices that are still certainly contrary to public benefit of breaking up families through shunning or destroying adherents’ free will while impoverishing them so as to enrich the religion’s leaders.

    Finally, rejection of a religion’s application for recognition as a charity with consequent “loss of tax reliefs” etc would carry no risk to anyone’s (unqualified) right to freedom of belief under Article 9(1). It might be possible – if somewhat far-fetched – to argue a breach of Article 9(2) rights to manifest the religion, but Article 9(2) is qualified “in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others” which makes any such claim very unlikely to succeed.

    In other words, the Commission should certainly seek to implement Parliament’s intended stricter regime for religious – and other – charities, which would undoubtedly be in the public interest, indeed, for the public benefit.

  2. My understanding in the case of the Scientologists is that they effectively outspent the US Department of Justice. As a result of the US federal government having used up their entire year’s worth of spending on the Scientology case, they were forced reluctantly to allow the Scientologists to benefit from US federal charitable tax reliefs. This clearly constitutes a case in which private organisational benefit trumped public benefit, as the activities and practices of Scientology can hardly be said to provide any public benefit.

    The so-called Church of Scientology was only ever established to ensure that L. Ron Hubbard was able to become a multi-millionaire, which – while clearly good for him – provided no real benefit to the wider public in any way.

    • Whether or not your understanding is correct, the majority of the Court of Appeals for the District of Columbia held as follows:

      “(1) On the basis of the record before us, the Founding Church of Scientology has made out a prima facie case that it is a bona fide religion and, since no rebuttal has been offered, it must be regarded as a religion for purposes of this case.

      (2) On the record before us, a prima facie case exists that auditing is a practice of Scientology, and that accounts of auditing integrated into the general theory of Scientology are religious doctrines. Since no rebuttal has been offered, we must take the point as proven.

      (3) In view of the constitutional doctrine of United States v. Ballard … literature setting forth religious doctrines, and related to an instrument in the manner in which the ‘auditing’ literature here is related to the E-meter, cannot be subjected to courtroom evaluation and therefore cannot be considered ‘labeling’ of such an instrument for purposes of the ‘false or misleading labeling’ provisions of the Act.

      On the other hand, the following should be noted:

      (1) We do not hold that the Founding Church is for all legal purposes a religion. Any prima facie case made out for religious status is subject to contradiction by a showing that the beliefs asserted to be religious are not held in good faith by those asserting them, and that forms of religious organization were erected for the sole purpose of cloaking a secular enterprise with the legal protections of religion.

      (2) We do not hold that, even if Scientology is a religion, all literature published by it is religious doctrine immune from the Act.

      (3) We do not hold that public health laws in general, or the Food, Drug and Cosmetic Act in particular, have no application to the activities of religion. For instance, it may well be that adulterated foods, drugs or devices used in religious practices can be condemned under the Act. It may be that a drug or device used in religion is subject to condemnation as ‘misbranded’ if its labeling is found to lack, for instance, adequate directions for use, as was charged in this case. Our holding prevents only a finding of false labeling on the basis of doctrinal religious literature.

      (4) Finally, we make no holding concerning the power of Congress to deal generally with the making of false claims by religions deemed injurious to the public health or welfare. The Ballard case of course casts doubt on some aspects of such a power; but this opinion makes only a narrowing construction, in a constitutionally sensitive area, of a statute which has otherwise quite properly been construed broadly by the courts.”

  3. Sir

    Mr Meakin’s article and the response by Mr Pollock heightens the very difficult (if not impossible) task that the Charity Commission has when having to evaluate certain religious practices as to whether they meet the public benefit test.

    Whereas Mr Meakin is correct in stating that the law must be neutral regards religion and the court is not an arbiter of religious doctrine there is clear authority in Thornton v Howe (1862) 31 Beav. 14 and subsequent decisions that religious practices must not be “subversive to all morality”. Rather surprisingly, the Charities Act 2006 (now consolidated in the Charities Act 2011) did not change the pre-2006 law regarding public benefit but merely allows the Charity Commission to issue “guidance” as to how such pre-existing law will be applied (Charities Act 2011 s.17) Therefore, the Charity Commission does appear to have a limited right to evaluate religious practices as to whether they are “subversive to all morality”. It is submitted that the Charity Commission cannot adopt a lower threshold than this as they cannot change the pre-existing law.

    As religion is generally based on theocracy rather than democracy the scope for tensions and difficulties is vast.

    Mr Pollock, in his response to Mr Meakin’s article, highlights certain practices that in his opinion are not in the public interest, such as the shunning of former members of the religion. There are however many other practices that some might regard as subversive to morality–the conduct of some of the mainstream Churches in Nazi Germany before and during World War II, the Catholic Church’s alleged complicity in the Rwanda massacres, the role of the Russian Orthodox Church during the Communist era and at present. What of the practice of circumcision concerning two of the Abrahamic faiths? What of the teachings of hell-fire and purgatory – what effect might such teachings have on vulnerable people? What of the plague of cases involving child abuse that are coming to light in so many mainstream religions? What of all the morality issues? The list is endless. Should the Charity Commission also be examining all these practices or just focus on minorities that have no or little political clout?

    Indeed, it is respectively submitted that if early Christianity were to apply for registration as a charity there might be some difficulties for the Charity Commission to consider. For example, Jesus told his followers to shun members of the congregation who were unrepentant by treating them “as a heathen.” (Matthew’s Gospel Chapter 18 verse 17) The Apostles Paul and John likewise counselled the faithful to shun those expelled from the community – no difference was made between family and non-family members. (1st Corinthians Chapter 5 verses 10 to13; 2nd Letter of John verses 9 to 11) Jesus and Paul regarded early Christian teaching as being the sole source of truth. (John’s Gospel Chapter 14 verse 6; Ephesians Chapter 4, verse 5) Certain sexual practices outside of marriage were condemned and those who practised such would “not inherit God’s Kingdom” (1st Corinthians Chapter 6 verses 9 to 11)

    It is respectively submitted that none of the practices in the latter paragraph would be regarded today as beneficial to the public but can they be regarded as meeting the “subversive to all morality” threshold either? Would the Charity Commission be demanding that Jesus modify his teachings? Is it for a secular body such as the Charity Commission to expect religions with a theocratic base to “water down” God’s Word so as to comply with accepted norms of Society today?

    If the Charity Commission was to refuse (or significantly more seriously) revoke charitable status based on a particular practice, the consequences can be catastrophic for an exclusive religion. Loss of tax relief is but one problem. If a religion has all its assets dedicated for charitable purposes, loss of charitable status could mean that those assets are now unusable by that religion as charitable assets cannot be applied for non-charitable purposes. The cy-pres doctrine would be of no use if there is no other religion with similar beliefs and objects that the property could be transferred to. Likewise, for an entity used by that religion there is likely to be an immediate charge of all assets to capital gains tax or corporation tax (due to a notional sale of assets) and all property owned by the entity (if corporate) before loss of charitable status would likely have to be held on trust for charitable purposes – so the entity cannot use them. Loss of charitable status could effectively poleaxe that religion from operating – likely a clear violation of Article 9 of the European Convention of Human Rights and Fundamental Freedoms.

    Mr Meakin is undoubtedly correct when he states that “Religious organisations need to have some assurances that their freedom to hold or adopt religious doctrines will not be interfered with…except in extremely limited circumstances”. Even if such limited circumstances were found to exist it is vital that the Commission work with the religion concerned to negate or minimise the circumstances rather than a loss of charitable status.

    Ian Barnett LLB Barrister
    Senior Lecturer in Law, Hertfordshire University

    • A most interesting contribution and a credit to the University of Hertfordshire.
      There is a far simpler solution available: scrap charitable status.
      More particularly, scrap the tax and other advantages that flow from charitable status.
      It then becomes a matter of supporters for the organisations involved to decide.
      It is their choice to support – or not support – the work of the organisation.
      We could do away with the Charities Commission and save its cost to the public.
      It would also substantially diminish all the legal cases on the matter of charity.
      Mind you, lawyers may not perceive such a prospect with absolute equanimity!

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