Assessing Public Benefit in Charities: Interpreting the Statutory Objective and Case Law, Slides of Law

Download Assessing Public Benefit in Charities: Interpreting the Statutory Objective and Case Law and more Slides Law in PDF only on Docsity! December 2008 Analysis of the law underpinning The Advancement of Religion for the Public Benefit This legal analysis is designed to be read in conjunction with The Advancement of Religion for the Public Benefit (December 2008) December 2008 PUBLIC BENEFIT: STATEMENT OF THE BASIS FOR THE CHARITY COMMISSION’S ROLE AND ACTIONS In 2006, Parliament passed new legislation for charities which, amongst other provisions, gave fresh emphasis to the requirement for all charities’ aims to be, demonstrably, for the public benefit. It is in both our interests, as the regulator of charities in England and Wales, and the interests of the charities that we regulate, that our approach to public benefit maintains and, if possible, increases the public’s trust and confidence in charities. Our approach to assessing public benefit comes from the statutory objective set for us by Parliament in the Charities Act 2006, ‘To promote awareness and understanding of the operation of the public benefit requirement’, and our corresponding duty to produce statutory guidance to help fulfil this objective. We believe that the statutory objective and the requirement to issue guidance, together with our responsibilities as regulator, mean that we have an obligation to set out a coherent set of principles on public benefit derived from our interpretation of the underlying case law which already exists. We interpret this case law in the context of modern circumstances, taking into consideration the new framework for charitable status set out in the Act, the existing case law, and the fact that the presumption of public benefit for some types of charities has been removed. We also consider the impact of the Human Rights Act, which requires fair and equal treatment of the application of the public benefit principles to different types of charity, and that any differences in treatment are necessary, proportionate and legitimate. Our role is to bring all these elements together and, where necessary, interpret the law to deal with areas that lack clarity. Our interpretation of our new responsibilities is underpinned by our general guidance on the principles of public benefit which we published on our website at the start of 2008. We will be transparent about the basis on which we take decisions about public benefit and proportionate in the actions we take. Where our decisions affect whether a charity remains as a charity, or indeed whether the way in which it operates is for the public benefit, the charity, or anyone affected by our decision, who disagrees with the regulatory action that we take, can challenge that action with the Charity Tribunal or the Courts where appropriate. December 2008 1.5 1.6 1.7 1.8 December 2008 advancement is for the public benefit, then that organisation will not be charitable either’. Plowman J in Re Watson in 1973 considered a case for the publication and distribution of the fundamentalist Christian writings of an individual’. He quoted authority that the court does not prefer one religion or sect to another. He said that "where the purposes in question are of a religious nature ... then the court assumes a public benefit unless the contrary is shown”. But he then went on to say: "having regard to the fact that the court does not draw a distinction between one religion and another or one sect and another, the only way of disproving a public benefit is to show, in the words of Sir John Romilly MR in Thornton v Howe 32 Beav 14, 20, that the doctrines inculcated are "adverse to the very foundations of all religion, and that they are subversive of all morality." The Commission has not accepted that that is a complete or accurate statement of the law. Plainly there are other ways of disproving a public benefit (eg the beneficiaries may be insufficiently numerous or may be required to have some common characteristic determined by personal relationship or contract). In so far as that part of the judgment is inconsistent with the judgment of the court of appeal and opinions given by the House of Lords in Gilmour v Coats, it is not regarded as binding. Public benefit must be capable of being shown"®. In the Court of Appeal in Gilmour v Coats, it was held: “_..the question whether a trust is beneficial to the public is an entirely different one from the question whether a trust is for the advancement of religion. In answering the latter question, the court is not concerned with the truth or otherwise of the religious benefits entertained by particular religions which it recognises as such. When, however, the question is whether a particular gift for the advancement of religion satisfies the requirement of public benefit, a question of fact arises which must be answered by the court in the same manner as any other question of fact i.e. by means of evidence cognisable by the court.”" A religion must be capable of producing beneficial effects and evidence will need to be given to demonstrate that its beliefs, doctrines and practices have this capability. The public benefit requirement will not be satisfied under the Charities Act 2006 unless an organisation provides evidence to show both its impact on the public and that the impact is beneficial’? The opinion of the promoters or the organisation is not determinative'’. The motives, intention or beliefs of the promoters — however kind or sincere — do not determine the question and are immaterial’*. * s2(1) Charities Act 2006 ° Expert theological evidence assessed their intrinsic worth as nil but not irreligious or immoral: Re Watson [1973] 1 WLR 1472. 10 ss2(1) and 3 Charities Act 2006 "l Gilmour v Coats [1948] Ch 340 C.A. Ld Greene MR at page 347. 2 Public benefit must be present as a matter of fact: When the question is whether a particular gift for the advancement of religion satisfies the requirement of public benefit a question of fact arises which must be answered by the court ... by means of evidence cognisable by the court. Gilmour v Coats [1948] Ch 340 C.A. Ld Greene MR at page 347 '3 Re Hummeltenberg [1923] 1 Ch 237 1.9 December 2008 The question has to be decided on the basis of relevant evidence (or in the light of generally well-known facts and where it would be absurd to call for further evidence). Benefit must be proved at the time a decision has to be made. The fact that something was once considered beneficial does not finally settle the question now. If we conclude that the element of public benefit has not been proved (even where it is not disproved and we decide it is incapable of proof one way or the other), we must decline to register. The benefits, tangible or intangible, must be available to the public at large or to an appreciably important section of the public'®. Where the practice of a religious organisation is essentially private or is limited to a private class of individuals, not extending to the public generally, the element of public benefit will not be established"®. ' Re Delaney [1902] 2 Ch 642 'S Tn case of The Church of Scientology (England and Wales) (Decision of the Charity Commissioners of 17 November 1999) (hereafter ‘Scientology decision’), it was found it was necessary to receive Scientology services before one could access the highly formalised system of doctrines, practices and beliefs of Scientology and this may constitute a filter on public benefit, though requiring membership of or adherence to a particular organisation promoting a belief system may not necessarily be fatal. 16 Scientology decision. See also Re Hetherington [1990] Ch 1 and Re Coats’ Trusts [1948] Ch 340, 357 (Ld Evershed) December 2008 Part 2. THE ADVANCEMENT OF RELIGION What can be regarded as ‘religion’? 2.1. There are general principles (outlined below) to which a purpose must conform if it is to be regarded as within the Charities Act’s description of ‘the advancement of religion’. The law does not automatically recognise as a religion everything that may designate itself as a religion'’. Also, in the Anti-vivisection Society case, Lord Simonds held that ‘to give [a] purpose the name of “religious” or “educational” is not to conclude the matter’. These general principles (gathered from the common law of England and Wales), elucidated by the Act, continue to govern the matter in charity law. The body of law which has developed concerning the European Convention right to freedom of thought, conscience and religion is also part of the modern context,'® and decisions of other common law jurisdictions having a similar system of charity law will be of persuasive authority. But the advancement of religion as a charitable purpose in England and Wales has to be understood in light of the laws of England and Wales. 2.2 As ageneral proposition, for its advancement to be capable of being charitable in this context, a religion should have a certain level of cogency, seriousness, coherence and importance’®. 2.3. Further, to be charitable for the advancement of religion, the content of any system of faith and worship has to be of a positive nature, impacting beneficially on the community. Therefore there could not be regarded as charitable any systems promoting destructive figures; temples of Satan and other forms of demonology, or worshipping as a god that which would be personally or socially harmful”; or advancing any practice by which one attempts to tame supposed occult powers so as to place them at one's service (thus having supernatural powers over others). The advancement of such systems and others comprising practices or doctrines which are adverse to the foundations of religion or subversive to morality or are illegal could not form the subject matter of charity (see Thornton v Howe supra). In Cocks v Manners (LR 12 Eq 585) (confirmed by the House of Lords in Gilmour v Coats), Sir John Wickens, V-C., said: “It is said, in some of the cases, that religious purposes are charitable, but that can only be true as to religious services tending directly or indirectly towards the instruction or the edification of the public...” 2.4 To be charitable, therefore, a religious purpose has to be serious, tend directly or indirectly to the moral and spiritual improvement of the public as well as being for the public benefit. 2.5 There will be some purposes which are considered to be beneficial and religious, and indeed seriously religious, but which do not fall within the legal framework. "” Re Coats’ Trusts, Coats v Gilmour [1948] Ch 340 (CA) at pp 346 and 347 per Lord Greene MR 'S we cite it below on cogency, seriousness, clarity of belief system and on the detrimental effects of some types of persuasion "© Campbell and Cosaus v UK (1982) 4 EHRR 293 at 304 °° See Picarda: The Law and Practice Relating to Charities (London: Butterworths 3" ed 1999, p 116 fn 19) (iii December 2008 In deciding whether a gift is for the advancement of religion, the court does not concern itself with the truth of the religion, a matter which is not susceptible of proof. This does not mean that the court will recognise as a religion everything that chooses to call itself a religion®’. In addition, in order to be charitable, the trust must not only be for the advancement of religion, it must also be of public benefit. This is a question of fact which must be answered by the court in the same manner as any other question of fact, i.e. by means of evidence cognizable by the court’. 2.13 The English courts have resisted closely defining what it is that makes some belief systems religious and others not. However in the Scientology case, the Commissioners accepted that there are various characteristics of religion which can be discerned from the legal authorities:- (1) (2) (8) Belief in a god or a deity or supreme being — R v Registrar General ex parte Segerdal [1970] 2 QB 697 per Lord Denning. Reverence and recognition of the dominant power and control of any entity or being outside their own body and life (i.e. outside the body and life of the follower of that religion) - Segerdal (Winn L J). Two of the essential attributes of religion are faith and worship: faith in a god and worship of that god - South Place Ethical Society. [1980] 1 WLR 1565 at 1572D-E (Dillon J) A trust for the purpose of any kind of monotheistic theism would be a good charitable trust - Bowman v Secular Society [1917] AC 406 at 448 - 450 (Lord Parker of Waddington) Worship must have at least some of the following characteristics: submission to the object worshipped, veneration of that object, praise, thanksgiving, prayer or intercession - Segerdal (Buckley LJ) at page 709F-G It would not seem to be possible to worship in this way (i.e. with reverence) a mere ethical or philosophical ideal - South Place Ethical Society (Dillon J) at page 1573A Promotion of religion includes “the observances that serve to promote and manifest it.” - Keren Kayemeth Le Jisroel v IRC [1931] 2 KB 465, 477 (Lord Hanworth MR). (affirmed [1932] AC 650) There must be a promotion of the religion, meaning “the promotion of Spiritual teaching in a wide sense, and the maintenance of the * Neville Estates v. Madden [1962] Ch. 832 3! Re Coats’ Trusts, Coats v Gilmour [1948] Ch 340 (CA) at pp 346 and 347 per Lord Greene MR * Re Coats’ Trusts supra at p 347 10 2.14 2.15 2.16 2.17 2.18 3: December 2008 doctrines on which it rests, and the observances that serve to promote and manifest it.” — Keren Kayemeth Le Jisroel v IRC (Lord Hanworth MR). This would include observance of particular common standards, practices or codes of conduct as stipulated in particular scriptures or teachings. (9) To advance religion means “to promote it, to spread the message ever wider among mankind; to take some positive steps to sustain and increase religious belief and these things are done in a variety of ways which may be comprehensively described as pastoral and missionary’. - United Grand Lodge v Holborn BC [1957] 1 WLR 1080 (Donovan J). (10) | Promotion of religion includes a missionary element or other charitable work through which the beliefs of the religion are advanced - United Grand Lodge v Holborn BC (Donovan J). (11) Public benefit is a necessary element in religious trusts as it is in other charitable trusts - Re Coats’s Trusts, Coats v Gilmour [1948] Ch 340 at 344 (Court of Appeal) (Lord Greene MR). Having considered these characteristics, the Commissioners concluded that the definition of a religion in English charity law was characterised by a belief ina supreme being and an expression of that belief through worship. The cases also make clear that there must be advancement or promotion of the religion. The understanding of ‘religion’ is further refined by the Charities Act 2006 which enacted that a purpose is a charitable purpose if it falls within a list of descriptions and is for the public benefit. The list includes (s2 (2) (c)) ‘the advancement of religion’. The word ‘religion’ here is given a clarifying partial definition to include (s2 (3) (a) (i) a religion which involves belief in more than one god, and (ii) a religion which does not involve belief in a god. Section.2 (5) of the Charities Act 2006 has the specific effect of preserving the common law meaning of religion subject to the clarification in s.2 (3(a)). Leaving context (including case law) aside, ‘religion’ does not today have a plain and unambiguous meaning which is generally accepted. Dictionary definitions of ‘religion’ often quoted’ suggest it can mean (i) belief in some superhuman controlling power entitled to obedience, reverence and worship; or it can mean (ii) a system defining a code of living (especially as a means to achieve spiritual or material improvement). The Commission’s Scientology decision effectively concludes that - on the authorities - the first, and not the second, is the meaning it has in English law. * see also The Church of the New Faith v Commissioner for Payroll Tax (1982) 154 CLR 120 (a persuasive authority , Australian High Court) * Such as that in the Shorter OED, a version of which was quoted by Dillon J in South Place Ethical Society 11 December 2008 2.19 The common law understanding of ‘religion’ as set out by the Commission in its Scientology decision remains, in the Commission’s understanding, the basis of the 2.25 law. Thus the characteristics of a religious belief system (which must be serious and have a clear structure and belief system®) include the following elements: (a) Belief in ‘supreme being or entity’ In the Scientology decision, the Commission concluded that “belief in a supreme being remains a necessary characteristic of religion for the purposes of English charity law. It would not, however, in their view, be proper to specify the nature of that supreme being or to require it to be analogous to the deity or supreme being of a particular religion.” Slightly different terminology for this object of belief from that used in our Scientology decision is adopted in the guidance. Worship of ‘supreme being or entity’ The concept here is narrower than the Human Rights notion of manifesting one’s beliefs by means of teaching, practice or observance”. It is, however to be broadly understood®”. ‘Worship’ imports conduct indicative of reverence or veneration for the supreme being or entity*®. Worship is seen in activities including acts of submission, veneration, praise, thanksgiving, prayer or intercessior®®. Such description of these characteristics is largely drawn in the context of one religious tradition and should not be seen as an exclusive list. But it remains the case that one cannot worship with reverence what is simply an ethical or philosophical ideal*®. Such belief should be seen to give rise to distinct patterns of behaviour in the believing community expressive of the relationship with what is regarded as the supreme being or entity. This would continue to be the point of distinction between charities falling under this description of charitable purposes and others, including those which may be charitable for the promotion of moral or spiritual welfare or improvement. ‘Advancement of religion (i) |The charitable purpose requires some promotion or advancement of the religion: To advance religion means to promote it, to spread its message ever wider among mankind; to take some * see X v UK (1977) 11 DR 55 *° ef Kalac v Turkey (1999) 27 EHRR 552, ECtHR *7 On page 24 of the Scientology Decision, it was stated: “The Commissioners thus concluded that the English legal authorities indicated that the criterion of worship would be met where belief in a supreme being found its expression in conduct indicative of reverence or veneration for that supreme being. The Commissioners noted and welcomed the fact that the concept of worship so understood, distilled from the decided English cases was reflected in the common English definition of the word “worship”. The Commissioners also noted that the concept of worship so understood provided objective criteria by which worship can be identified for the purposes of recognising an organisation to be charitable as advancing religion and so falling within a distinct third head of English charity, at the same time as being sufficiently broad to allow recognition of a range of belief systems commonly recognised as religions.” *8 R v Registrar General ex parte Segerdal [1970] 2 QB, 697 Winn LJ at p. 709A * R v Registrar General ex parte Segerdal per Buckley LJ at p. 709 F-G. “ Re South Place Ethical Society, Dillon J at p.1573A. 12 December 2008 otherwise charitable under the residual head, alongside the promotion of moral or spiritual welfare or improvement or the promotion of efficiency and effectiveness of charities or charitable purposes, if it meets the relevant criteria. In particular the Commission has recognised the purpose of promoting religious harmony.“ (vi) Another way of advancing a religion would be by means of undertaking pastoral work. Many religious charities will also have objects directed to other charitable purposes for the relief of need of different descriptions in society and may quite properly thereunder promote what might in other contexts appear to be purely secular purposes (and without bearing any particular religious badge or branding). However, where a charity is operating solely in furtherance of a purpose to advance religion, then any secular pastoral work which it undertakes should be as a means of advancing the particular religion (i.e. as part of a programme of positive steps to sustain and increase religious belief and worship*® by promoting its spiritual teachings and maintaining its doctrines and observances). Motivation alone does not suffice“ to invest a secular purpose not directed to increasing religious belief and worship with a character of advancing religion. It is clear that religion may be advanced by reference to what appear to be secular activities. A convent in Cocks v Manners (1871) LR 12 Eq 574 was held charitable and there the nuns were engaged in exterior works (“teaching the ignorant and nursing the sick”) as part of their religious work. The provision of recreational facilities as a main aim may be wholly for the advancement of religion: Belfast City YMCA v NI Valuation Comr [1969] NI 3 (CA) (recreational facilities); Neville Estates v Madden (church hall). In the United Grand Lodge case [1957] 1 WLR 1080, 1090 Donovan J said that taking positive steps to sustain and increase religious beliefs was in the glorious architect of heaven and earth, and practise the sacred duties of morality. Masons unite with the virtuous of every persuasion in the firm and pleasing bond of fraternal love: they are taught to view the errors of mankind with compassion, and to strive, by the purity of their own conduct, to demonstrate the superior excellence of the faith they may profess. Thus Masonry is the centre of union between good men and true, and the happy means of conciliating friendship amongst those who must otherwise have remained at a perpetual distance.” There is nothing comparable to that in Masonry. This is not said by way of criticism. For Masonry really does something different. It says to. aman, “Whatever your religion or your mode of worship, believe in a Supreme Creator and lead a good moral life”. Laudable as this precept is, it does not appear to us to be the same thing as the advancement of religion. There is no religious instruction, no programme for the persuasion of unbelievers, no religious supervision to see that its members remain active and constant in the various religions they may profess, no holding of religious services, no pastoral or missionary work of any kind, Counsel for the appellants relied strongly, however, on the following finding in the Case: “As a general description of the basis of Freemasonry, it is an organisation devoted to advancing the acceptance and practice of basic religious principles, which may be particularised as man's relations to God, to his neighbour and to himself.” Without wishing to be pedantic, it is not easy to understand the term “basic religious principles”. Had quarter sessions said “basic moral principles” their meaning would have been clear; and indeed when they go on to give particulars it would seem that this is really what they do mean. In any event, however, the main object of Freemasonry must be discovered from a consideration of its constitution and its work; and such consideration leads us to the view that its main object is clearly not the advancement of religion. “ See Guidance on Commission website 5 United Grand Lodge v Holborn BC [1957] 1 WLR 1080 (Donovan J) “© Re Delaney [1902] 2 Ch 642 15 December 2008 something done “in a variety of ways which can be comprehensively described as pastoral and missionary’. More recently, the Pilsdon Community House (a religious community, living according to Christian principles and giving practical help in cases of drug addiction, drink, having been in prison or loneliness) was considered in Re Banfield [1968] 1 WLR 546. That community was “doing the work of God in practical Christianity’ by receiving and tending for people who were failing to stand up to the strains of life. The court held that the fact that a religious community makes its services available to those of all creeds and of none does not prevent it being a charity for the advancement of religion. It was held that, on a true construction, furthering the purposes of the community amounted to the advancement of religion. It is difficult to see, however, how religion is being advanced unless it is possible for members of the public to make the connection in each case between the conduct of pastoral work of a secular kind on the one hand and the advancement of the particular form of faith and worship which is the object of promotion on the other. (vii) Religion may be advanced either by promoting the totality of the religious and spiritual teachings of a religious body or by particular reference to some of its tenets or to the religious teachings of a particular individual or group. However, the promotion of a single or a limited number of tenets cannot be used as a cover for a purpose to advance a particular non-charitable (particularly a political) agenda of any individual or group. (d) for the public benefit (see Part 3). 2.26 In all cases, there must be certainty as to the purpose for which assets are to be applied. A trust cannot be charitable if its objects are too vague to be carried into effect or controlled by the court (the court must be able to come to a conclusion as to the propriety of any item of expenditure that might be challenged). The body must be one the administration of which the court itself could if necessary undertake and control*”. In Re Hummeltenberg [1923] 1 Ch 237, Russell J said: To quote what Lord Eldon said in the case of Morice v. Bishop of Durham (1): "As it is a maxim, that the execution of a trust shall be under the control of the Court, it must be of such a nature that it can be under that control; so that the administration of it can be reviewed by the Court. |n particular, the description of the purpose and the class to be benefited must be sufficiently certain to enable people of common sense to carry out the expressed aims. 2.27 The Commission is concerned to regulate charities (bodies formally established for legally charitable purposes exclusively and subject to the charity jurisdiction of the court). It does not regulate faith communities, which may be more loosely constituted and have wider remits. 47 Re Hummeltenberg supra 16 2.28 2.29 2.30 2.31 2.32 December 2008 Charity law has a particular understanding of the advancement of religion for the benefit of the public (see United Grand Lodge v Holborn Borough Council [1957] 1 WLR 1080; and the Scientology decision p 18 and p 43 and following). It cannot be said that all of the purposes of a faith community or denomination, or of its regional or local bodies, are exclusively charitable in that sense. For example, a denomination may have purposes directed to the sanctification of its members by means of private prayer (whose purpose and public benefit will not be susceptible of demonstration by means of evidence cognisable by the court), or for engagement with the personal or communal life of individuals in the body politic, or parts of it, in ways not wholly directed to the advancement of religion as indicated in the cases. The cases in this area of law in relation to a variety of denominations are well established. Not every Roman Catholic purpose is charitable (McLaughlin v Campbell [1906] IR 588). Anything which is focussed simply for a main purpose of achieving the benefit or welfare of the adherents of a faith community themselves (Holmes v AG The Times 12 Feb 1981 - Brethren), or which does not so much promote religion among the public or take positive pastoral or missionary steps to sustain and increase religious belief among the public (United Grand Lodge case) but rather is directed to promoting a particularly holy way of life as a model for others (Gilmour v Coats [1949] AC 426), or which promotes private prayer or private spiritual practices amongst the religious adherents for their own spiritual benefit and development (Re Joy (1888) 60 LT 175; Tudor on Charities 9th ed p. 94) would not be charitable. A gift to an Anglican vicar of a parish ‘for parochial institutions or purposes’ (Re Stratton [1931] 1 Ch 197) or ‘for parish work’ (Farley v Westminster Bank [1939] AC 430) is not charitable. The point was made on behalf of the Attorney General in Re Schoales that there is no distinction, from the point of view of validity as a gift for charitable purposes, between a gift to the Church of England and a gift to another Church (or faith community). In that case the issue was whether a gift to the quasi-corporate institution consisting of those individuals who carry on the Roman Catholic religion (i.e. the Roman Catholic Church) was charitable. It was held charitable on the basis of an implied restriction in such a gift or trust to the teaching of the doctrines and supporting the work and services of the Church (i.e. a limitation to such of the wider purposes of the relevant church as would then be considered legally charitable for the advancement of religion). The practical application of that case is that, although not all of the purposes of a church, denomination or faith community will be exclusively charitable in law, a gift for the general purposes of a particular church or denomination or faith community falls to be construed in law as a gift which has to be applied only for such of its purposes as are for the advancement of religion (as understood in the charity cases) for the public benefit, and hence charitable. But it remains the case that not every purpose of a faith community is apt to be accepted as charitable. What is true of faith communities generally is also true of their local and regional branches. 17 3.11 3.12 3.13 December 2008 “the House of Lords in Gilmour v. Coats has made it clear that a trust for a religious purpose must be shown to have some element of public benefit in order to qualify as a charitable trust. ... The trust with which | am concerned resembles that in Gilmour v. Coats in this, that the persons immediately benefited by it are not a section of the public but the members of a private body. All persons of the Jewish faith living in or about Catford might well constitute a section of the public, but the members for the time being of the Catford Synagogue are no more a section of the public than the members for the time being of a Carmelite Priory. The two cases, however, differ from one another in that the members of the Catford Synagogue spend their lives in the world, whereas the members of a Carmelite Priory live secluded from the world. If once one refuses to pay any regard - as the courts refused to pay any regard - to the influence which these nuns living in seclusion might have on the outside world, then it must follow that no public benefit is involved in a trust to support a Carmelite Priory. As Lord Greene said in the Court of Appeal: ‘Having regard to the way in which the lives of the members are spent, the benefit is a purely private one.’ But the court is, | think, entitled to assume that some benefit accrues to the public from the attendance at places of worship of persons who live in this world and mix with their fellow citizens.” There will be another difficulty in clearly identifying the benefit where political purposes are in point. One particular form of engagement may be to use political means to promote or advance the particular body of teachings or practices in wider society. Charities may engage in political activities and campaigning, provided this is a means of furthering of their charitable purposes rather than a main purpose in itself®®. So, if the purpose (rather than simply a means) is to bring about changes in the law (e.g. a repeal of abortion legislation, or the effecting of the secularisation of the state) then a body which is a charity could not engage in activity to promote that main aim and, conversely, a body promoting such a main aim could not be a charity. Principle 1b: The benefits must be related to the aims Where it is a case of a trust for the general promotion of a religion, it will be necessary to establish that the core tenets and practices of the religion are beneficial and essentially public. Commonly, religions and belief systems will enjoin engagement with the wider community as part of their tenets or core practices. Such engagement may be of a general kind or may comprise specific social welfare activities, or work directed to advancing education or promoting health®’. Religion may be promoted by providing recreational activities®. In every case it should be clear how the engagement results in advancing the religion as understood in the cases (particularly the United Grand Lodge and Keren Kayemeth cases) and members of the public should be able to make the link between the undertaking of such pastoral work and the advancement of the particular religion being promoted. The general promotion of a religion may involve the dissemination of teachings, the provision of buildings accommodating public observances and services, the °° See the Commission’s leaflet CC9 °° Bowman v Secular Society supra >? Cocks v Manners supra 58 Trustees of City of Belfast YMCA v Northern Ireland Valuation Commissioner [1969] N13 20 3.14 3.15 3.16 December 2008 administration of those services or the provision of religious personnel to provide the services. The public may benefit where religious observances and buildings (churches, temples, synagogues, gurdwaras, mosques, meeting houses or other religious buildings which are used for practising the religion) are open to the public. In Re Hetherington it was concluded that the celebration of a religious rite in public impacts beneficially on the public by virtue of the morally and spiritually improving effects of the celebration on the members of the public who attend. Those morally and spiritually improving effects now have to be shown to be operating (by reference to their impact and doing good in society). They will thus have to be described and evidenced in ways a court could evaluate. Principle 1c: Benefits must be balanced against any detriment or harm In the Anti-vivisection Society case®, the principle was clearly stated in that any assumed public benefit from the advancement of morals amongst people, which could, or might, result from the society’s efforts to abolish the practice of vivisection was far outweighed by the detriment to medical science and research, and, consequently, to the public health, that would result if the society succeeded in its object. On balance the object of the society was gravely injurious to the public benefit and hence could not be charitable. Lord Simonds protested against the notion that the court must see a charitable purpose in the intention of the society to benefit animals and thus elevate the moral character of men but must shut its eyes to the injurious results to the whole human and animal creation. ..Where on the evidence before it the court concludes that, however well-intentioned the donor, the achievement of his object will be greatly to the public disadvantage, there can be no justification for saying that it is a charitable object...... The test is to be applied from evidence of the benefit to be derived by the public or a considerable section of it, though a wide divergence of opinion may exist as to the expediency, or utility of what is accepted generally as beneficial. The court must decide whether benefit to the community is established. He cited with approval authority to the effect that: "There is probably no purpose that all men would agree is beneficial to the community: but there are surely many purposes which everyone would admit are generally so regarded, although individuals differ as to their expediency or utility. The test or standard is, | believe, to be found in this common understanding.” But, the court must still in every case determine by reference to its special circumstances whether or not a gift is charitable. Some activities, or the way some tenets or practices are promoted, may have a negative effect on public benefit by tending to produce social or personal harm. Such potential harm would have to be balanced against the overall public benefit otherwise established. Where the particular practice or doctrine includes an act which would be against the law, or in contravention of public policy, then it may mean that public benefit cannot be established and hence the body will not be a charity (despite the public benefit otherwise established from the totality of the practices and doctrines). * National Anti-Vivisection Society v IRC [1947] 2 All ER 217 21 3.17 3.18 3.19 3.20 3.21 3.22 December 2008 The law will not be drawn into the truth or otherwise of religious doctrines. However, public benefit will be affected if illegality or public policy issues arise in connection with the dissemination of those beliefs, for example if a religion were to promote unlawful discrimination or racial hatred or incite violence. Principle 2: Benefit must be to the public, or section of the public Principle 2a: The beneficiaries must be appropriate to the aims It is the benefit from the purpose that must be considered. The court does not adopt the same yardstick for measuring benefits in every category of legal charity. The standard for the advancement of religion differs from that of advancing education, for example®. Whilst in most cases we should expect to see a wide public benefit going beyond the members of the religious community concerned itself (see Holmes v AG above), it may be (for reasons stemming from the extract from Neville Estates v Madden above) that immediate benefits could be enjoyed by that religious community on the reasonable premise that such wider public benefit will flow. An evaluation will have to be made on the basis of the particular purpose in individual cases. Principle 2b: Where benefit is to a section of the public, the opportunity to benefit must not be unreasonably restricted by geographical or other restrictions; or ability to pay any fees charged. Principle 2c: People in poverty must not be excluded from the opportunity to benefit The actual number of people who can benefit at any one time can be quite small as long as anyone who could qualify for the benefit is eligible™. But public benefit will not be satisfied where the adherents are a small number of people who are an enclosed group of followers, who will not have any contact with society in general, even if in theory any member of the public could train to join that group®. Nor is it possible to argue that the adherents in the enclosed environment themselves provide public benefit by virtue simply of constituting a good example model lives. But, even where there may be benefits to the adherents themselves (for example, their own spiritual development or personal salvation or liberation), and there is some element of private prayer or contemplation, where the adherents actually directly engage with members of the public an element of public benefit might be shown”. Benefit must be accessible. One essential distinguishing feature is whether or not the practices or promotion of the tenets are essentially public in nature. They may be public in nature by the openness of access for the public to services for example. In cases where access is only to a limited membership, the impact or benefit may ® Gilmour v Coats [1949] AC 426, 449 °! see Re Le Cren Clarke [1996] 1 All ER 715 © Gilmour v Coats . See also the example of Dominican Convent in Cocks v Manners [1871] LR 12 Equity 574 © Neville Estates Ltd v Madden [1962] Ch 832, 853. See also the example of the Sisters of Charity in Selley Oak in Cocks v Manners [1871], Commissioners Decision in Caldey Abbey 1969; Holmes v AG [1981] and the Commissioners’ Decision in the Society of the Precious Blood 1989 22