Charities

1 January 2017

The legal definition of charity has historically been somewhat elusive and stands distinct from any understanding of charity in a general or popular sense. As Lord Wright observed, in its legal sense the word “charitable is a word of art, of precise and technical meaning”[1]. Viscount Simmonds further remarked that, “no comprehensive definition of legal charity has been given either by legislature or in judicial utterance, there is no limit to the number and diversity of ways in which man will seek to benefit his fellow men”.

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The Preamble to the Charitable Uses Act 1601, also referred to as the Statute of Elizabeth I, contained a list of purposes which were then regarded as charitable. It assumed a central role for the courts as a reference point or catalogue of accepted instances of charity until almost 300 years later when Lord MacNaughten in the Pemsel case, famously classified charitable objects into four principal divisions: (i) trusts for the relief of poverty, (ii) trusts for the advancement of education, (iii) trusts for the advancement of religion, (iv) trusts beneficial to the community not falling under any of the preceding heads.

These four heads of charity were used as reference whenever the inherent charitable nature of a purpose or institution was questioned until the Charities Act 2006 received royal assent. Section 2(2) of the 2006 Act now provides a modern statutory definition of charity by listing 13 descriptions of purposes deemed charitable at law. In order to be charitable, an organisation has to be established for one or more purposes within the descriptions recognised by the law as capable of being charitable, and for the public benefit.

Charity law in England and Wales has developed within the context of the traditional monotheistic religions but it has embraced for many years religions other than Christianity and Judaism. In Bowman[3], Lord Parker effectively held that it was not just the promotion of Christianity that would be recognised but that the Courts of this country were not precluded “from giving effect to trusts for the purposes of religions which, however sacred they may be to millions of His Majesty’s subjects, either deny the truth of Christianity or, at any rate, do not accept some of its fundamental doctrines”.

Furthermore in the Commission’s Scientology[4] decision it was firmly established that “The law does not prefer one religion to another and as between religions the law stands neutral”[5]. The English courts have, for a long time, resisted closely defining what 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: • Belief in a god or a deity or supreme being – R v Registrar General[6] • Two of the essential attributes of religion are faith and worship: faith in a god and worship of that god – South Place Ethical Society[7] • 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[8].

Having considered these characteristics, the Commissioners concluded that the definition of a religion in English charity law was characterised by a belief in a supreme being and an expression of that belief through worship. This definition is further refined in the 2006 Act where s2 (3) a gives a partial definition of the word religion.

However, the law does not automatically recognise as a religion everything that may designate itself as a religion and there are some principles to which a purpose must conform if it is to be regarded as within the Charities Act’s description of ‘the advancement of religion’. These general principles are gathered from the common law of England and Wales but also take into account the body of law which has developed concerning the European Convention right to freedom of thought, conscience and religion. As a general 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[9].

Also, in order 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. Sir John Wickens, V-C. in Cocks v Manners[10] observed: “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…”

Hence, to be charitable 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. In Holmes v Attorney General[11] Walton J commented: “… It is not for the benefit of the adherents of the religion themselves that the law confers charitable status, it is in the interests of the public. ” Hence, as a general proposition, in the case of charities for the advancement of religion the purpose must not simply be for the benefit of the followers of the particular religion. Formerly, the proposition stated that “as between different religions the law stands neutral, but it assumes that any religion is at least likely to be better than none”[12].

Plowman J in Re Watson[13] considered a case for the publication and distribution of the fundamentalist Christian writings of an individual where he quoted authority that the court does not prefer one religion or sect to another and said that “where the purposes in question are of a religious nature … then the court assumes a public benefit unless the contrary is shown”. He then went on to say that the only way of disproving a public benefit is to show that the doctrines inculcated are adverse to the very foundations of all religion, and that they are subversive of all morality.

However, that part of the judgment being inconsistent with the judgment of the court of appeal and opinions given by the House of Lords in Gilmour v Coats, where 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”, it is not regarded a binding.

Since the Charities Act 2006, there is no longer any presumption that, because a purpose falls within the description “the advancement of religion”, it is for the public benefit. Section 3(2) of the Act provides: “In determining whether [the public benefit] requirement is satisfied in relation to any …purpose, it is not to be presumed that a purpose of a particular description is for the public benefit”. Hence, with the removal of the presumption and in the modern context the proposition may now be interpreted as meaning that advancing religion can be seen as a public good if such advancement can be demonstrated to be in relation to a system having a benign and positive content which is being advanced for the benefit of the public.

Over the years, there are some purposes which, despite being beneficial and religious and indeed seriously religious, did not fall within the legal framework. For example, fostering private piety, although being a religious activity, is not a charitable purpose due to the absence of benefit to the public. In Cocks v Manners[14] (supra) it was said that “a voluntary association of women for the purpose of working out their own salvation by religious exercises and self-denial seems to have none of the requisites of a charitable institution. ” In the Re Joy[15] case it was held that the real object contemplated by the testator was the non-charitable purpose of improvement of the membership of a society by prayer.

Further, in Re White[16], it was held that “a society for the promotion of private prayer and devotions by its own members and which has no wider scope, no public element, and no purpose of general utility would not be charitable”. Lord Simonds in the Gilmour[17] case later confirmed the decision in Cocks v Manners and said that activities “good in themselves but solely designed to benefit individuals associated for the purpose of securing that benefit, which may not have some repercussions or consequential effects beneficial to some section of the general community” do not meet the prerequisites of a charitable institution. In Re Warre’s Will Trusts, on the matter of a retreat house, Harman J said: “Activities which do not in any way affect the public or any section of it are not charitable.

Pious contemplation and prayer are, no doubt, good for the soul, and may be of benefit by some intercessory process, of which the law takes no notice, but they are not charitable activities. ” Thus, in Re Hetherington[18] it was held that the celebration of a religious rite in private does not contain the necessary element of public benefit since any benefit of prayer or example is incapable of proof in the legal sense and any element of spiritual or moral improvement (edification) is limited to a private not public class of those present at the celebration. However, in the same case it was also held that the holding of a religious service which is open to the public is capable of conferring a “sufficient public benefit because of the edifying and improving effect of such celebration on the members of the public who attend. ”

There are also other purposes related to religion whose pursuits have not been considered as charitable because the purpose itself is not exclusively charitable. For example a trust ‘for Roman Catholic purposes’ may not be for exclusively charitable purposes furthering the Roman Catholic faith[19]. Also a gift to an Anglican vicar of a parish “for parochial institutions or purpose”’[20] was not considered charitable. A bequest to an archbishop to be applied “in any manner he might think best for helping to carry on the work of the Church in Wales”[21] is not charitable either and neither is a generally stated purpose “for religious, educational and other parochial requirements”[22].

On the other hand, In Re Schoales[23], it was clarified 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. A gift for the general purposes of a particular church or denomination or faith community falls are considered in law as a gift which has to be applied only for such of its purposes as are for the advancement of religion for the public benefit, and hence charitable. As mentioned above, charitable purposes require some promotion or advancement that is to “spread its message ever wider among mankind; to take some positive steps to sustain and increase religious belief”[24].

Proselytising is one way of advancing religious purposes[25] but it may raise public benefit issues if it breaks the law or results in harm or detriment. Therefore, it would not be compatible with public benefit principles for an organisation to seek to inhibit anyone from their rights of freedom of thought, conscience or religion (Article 9 ECHR) and to manifest or change such beliefs. This matter was considered in Kokkinakis v Greece[26] and the court in considering attempts to forbid activities of a Jehovah’s Witness confirmed that a democratic society has a plurality of beliefs and held that freedom to manifest one’s religion includes the right to convince one’s neighbor.

But, the court drew a clear distinction between bearing Christian witness and improper proselytism by stating that the former was true evangelism and the latter representing a corruption or deformation of it. Furthermore, proselytising being unlawful in some countries, the Commission dealt with the issue of whether it was possible to recognise a religious purpose as charitable in England and Wales which is not charitable and may be illegal abroad in its annual report in 1993 which mentioned: “One should first consider whether they would be regarded as charities if their operations are confined to the United Kingdom.

If they would, then they should be presumed also to be charitable even though operating abroad unless it would be contrary to public policy to recognise them. Hence, an organisation whose purpose is to proselytize, even if its activity is carried out internationally, may be charitable in England and Wales unless it causes harm or detriment which outweighs the public benefit. The High Court considered the statement in the Sonsino case[27] in 2002 and upheld it. However, it still remains unclear as to what the courts would rule contrary to public policy. Another way of advancing a religion would be by means of undertaking pastoral work.

However, where a charity is operating solely for the purpose of advancement of religion, then any secular pastoral work which it undertakes should be as a means of advancing the particular religion. A convent in Cocks v Manners[28] 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.

In the United Grand Lodge[29] case, Donovan J said that taking positive steps to sustain and increase religious beliefs was 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[30]. 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 also that furthering the purposes of the community amounted to the advancement of religion.

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