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Out with the old, in with the new: religion, charitable status and the Charities Act 2006

  • Andrew Iwobi (a1)

The enactment of the Charities Act 2006 is widely viewed as one of the most momentous events in the recent history of English charity law, and the impact of the Act on the pre-existing law is still being debated. This paper inquires into the operation of the Act within the religious sphere. It seeks to explore the basis upon which charitable recognition was accorded within this sphere before the Act and to assess how far the law that was previously in force has been preserved, modified or rendered inoperative by the provisions of the Act. Three fundamental dimensions of the legal regime governing religious charities are especially relevant to this inquiry. The first dimension encompasses the elusive quest for the meaning of religion in the charitable sense. The second focuses on the long-standing requirement that religious purposes must be beneficial to the public in order to be charitable. The third is concerned with the human rights implications of conferring or withholding charitable status within the religious domain. Each dimension is examined in turn with a view to providing an insight into the complexities and difficulties inherent in the pre-existing law and the extent to which these have been addressed by the reforms contemplated by the Act.

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1 Dunn, A and Riley, CASupporting the not-for-profit sector: the government's review of charitable and social enterprise’ (2004) 67 MLR 632 at 634.

2 Quint, FCharitable provisions’ (2008) 92 NLJ Charities Supplement Spring/Summer 6. These sections are found in Pt I of the Act. In summary, s 1 provides that a charity is an institution established for charitable purposes; s 2 specifies the requirements that must be present for a purpose to be charitable and stipulates, inter alia, that the purpose must be for the public benefit; while ss 3 and 4 elaborate on the operation of the public benefit requirement.

3 Harding, MTrusts for religious purposes and the question of public benefit’ (2008) 71 MLR 159 at 160.

4 Hackney, JCharities and public benefit’ (2008) 124 LQR 347 .

5 See Rickett, CefCharitable giving in English and Roman law’ (1979) 38 CLJ 118 at 122; at 304. .

6 There are currently approximately 29,000 registered charities within the religious subsector. See Charity Commission's Guidance The Advancement of Religion for the Public Benefit (December 2008) p 3, available at For ease of reference, this Supplementary Guidance on Religion is hereafter termed the Supp.G(R).

7 Blanco, MReligion and the law of charities’ (2006) 8 Ecc LJ 246 at 262. See also .

8 Feldman, D Civil Liberties and Human Rights in England and Wales (Oxford: Oxford University Press, 2nd edn, 2002) p 77.

9 Edge, PW Religion and Law, An Introduction (Aldershot: Ashgate, 2006) pp 68.

10 Greenwalt, K Religion and the Constitution: Free Exercise and Fairness vol 1 (Princeton: Princeton University Press, 2006) p 124.

11 Cumper, P Freedom of thought, conscience and religion’ in Harris, D and Joseph, S (eds) The International Covenant on Civil and Political Rights and United Kingdom Law (Oxford: Clarendon Press, 1995) p 359 . Many judges and scholars have sought to define religion from a legal standpoint and a useful overview of their differing approaches can be found in L Vickers Religious Freedom, Religious Discrimination and the Workplace (Oxford: Hart Publishing, 2008) pp 13–22.

12 Such under-definition was evident, for instance, in Davis v Beason 133 US 333, 341–342 (1890) (where the US Supreme Court insisted that a belief system would be religious, only if its teachings were in conformity with the moral outlook of ‘all civilised and Christian countries’); as well as in English charity law (which until the enactment of the 2006 Act, virtually equated religion with monotheism).

13 Hall, CG, ‘Aggiornamento: Reflections upon the contemporary legal concept of religion’ (1996) 27 Cambrian Law Review, 7, 9 .

14 The tendency towards over-definition is epitomised by the stance adopted by Murphy J in the Australian case of Church of the New Faith v Commissioner for Payroll Tax (1983) 154 CLR 120 at 150, where he signified that any organisation which claimed to be religious and offered a way to finding meaning and purpose in life would be treated as a religion. A similar tendency was evident in United States v Seeger 380 US 163 (1965) and Welsh v United States 398 US 333 (1970), where the US Supreme Court signified that from the theistic standpoint, the ultimate concern of religion, which gave meaning and orientation to the lives of adherents, was a belief in God and concluded that any belief occupying in the life of its possessor a place parallel to that occupied by belief in God in the minds of theists would be treated as a religion.

15 A Bradney Religions, Rights and Laws (Leicester: Leicester University Press, 1993) p 120. The advancement of religion was the third of the four Pemsel heads, so called because they were outlined by Lord MacNaghten in Commissioner for the Special Purposes of the Income Tax v Pemsel [1891] 1 AC 531 at 583. The other three heads were the relief of poverty, the advancement of education and other purposes beneficial to the community.

16 [1957] 3 All ER 281 at 285. This principle has been expressed slightly differently by the Charity Commission in the Supp.G(R), above n 6, pt C3, which states that ‘in general, to “advance” religion means to promote or maintain or practice it and increase belief in the supreme being or entity that is the object or focus of the religion’. See also Annexe B, which contains a fairly comprehensive array of examples of ways in which charities can advance religion.

17 In R v Registrar General, ex p Segerdal [1970] 2 QB 697 at 708, for instance, Winn LJ quite aptly alluded to the difficulty of seeking to ascribe a meaning to ‘the chameleon word “religion” or “religious”’.

18 Blanco, above n 7, at 252–253.

19 Crowther, CE Religious Trusts: Their Scope and Development (Oxford: George Ronald, 1954) p 13.

20 See Jones, G History of the Law of Charity 1532–1827 (Cambridge: Cambridge University Press, 1969) p 15. See also Luxton, P The Law of Charities (Oxford: Oxford University Press, 2001) p 125 ; Picarda, H The Law and Practice relating to Charities (London: Butterworths, 3rd edn, 1999) pp 7273.

21 Harding, above n 3, at 161–162.

22 This process began with the enactment of the Toleration Act 1688, which paved the way for religious purposes associated with other Protestant denominations which believed in the Holy Trinity to be treated as charitable. In subsequent centuries, such toleration was extended to other Christian denominations and to Judaism. See further Segerdal, above n 17, at 707.

23 Crowther, above n 19, p 19.

24 [1949] AC 426 at 458.

25 See, eg, Thornton v Howe (1862) 31 Beav 14; Re Watson [1973] 3 All ER 678; Re Le Cren Clarke [1996] 1 All ER 715.

26 Godfrey, GThe judges and the Jews’ (2003) 7 Ecc LJ 50 .

27 See, eg, Straus v Goldsmid (1837) 8 Sim 614; Re Michel's Trust (1860) 28 Beav 39 and Re Braham (1892) 36 Sol Jo 712.

28 [1962] Ch 832 at 853.

29 [1825–41] All ER 331.

30 LR 6 PC 381.

31 Smith, PReligious charities and the Charities Act 2006’ (2007) 9 Charity Law and Practice Rev 57 at 60.

32 [1917] AC 406.

33 Ibid, at 449.

34 Segerdal, above n 17, at 707.

35 [1980] 1 WLR 1565 at 1571.

36 Edge, PW and Loughrey, JMReligious charities and the juridification of the Charity Commission’ (2001) 21 LS 36 at 40.

37 St. Robilliard, J A Religion and the Law (Manchester: Manchester University Press, 1984) p 63..

38 See Charity Commission Framework for the Review of the Register of Charities (1998) Annex D.

39 See Edge and Loughrey, above n 36, pp 45–46. See also Edge, PW Legal Responses to Religious Difference (The Hague: Kluwer, 2002) ch 11. The PHFT had been registered in July 1995 but less than a year later its charitable status was revoked on the ground that the original registration had been mistaken and it was removed from the Register of Charities in 1998.

41 See above n 14, at 136. According to Brennan J and Mason ACJ, ‘for the purpose of the law, the criteria of religion are two-fold: first belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief’.

43 Dal Pont, above n 5, p 228.

44 Edge and Loughrey, above n 36, p 46. Similarly, the Charity Law Association pointed out that ‘defining religion by reference to worship of a deity automatically create[d] a bias against Eastern religions’. See Charity Law Association Response to the Draft Charities Bill (Main Report), available at

45 [2003] All ER (D) 56 (Jun).

46 See Edge and Loughrey, above n 36, p 45; Blanco, above n 7, at 259; Barker, above n 5, at 308–309.

47 See Report of the Joint Committee on the Draft Charities Bill (September 2004) para 50, available at

48 See Government Reply to the Report from the Joint Committee on the Draft Charities Bill Session 2003–2004, p 5, available at

49 Smith, above n 31, at 60.

50 JE Penner The Law of Trusts (Oxford: Oxford University Press, 5th edn, 2006) p 77.

51 These characteristics are outlined in the Supp.G(R), above n 6, s C2 and Annexe A.

52 Edge, above n 39, at 353.

53 See the text accompanying nn 36–37 above.

54 See Thornton v Howe, above n 25; Re Watson, above n 25 and Neville Estates v Madden, above n 28.

55 Under European human rights jurisprudence, it is well established that cognisance will be taken of these criteria when determining whether a ‘religion or belief’ or a ‘religious or philosphical conviction’ should be afforded protection under Art 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and Art 2 of Protocol 1 to the Convention, respectively. See Campbell and Cosans v UK (1982) 4 EHRR 293 and R (Williamson and Others) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] AC 246. By the same token, the definition of ‘religion or belief’ contained in the explanatory notes to the Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660 encompasses these criteria. See DTI Explanation of the provisions of the Employment Equality (Sexual Orientation) Regulations 2003 and Employment Equality (Religion or Belief) Regulations 2003, para 12, available at

56 Ibid, para 23.

57 This can be discerned from a combined reading of the Supp.G(R), above n 6, s B8 and the Commission's Draft Supplementary Guidance on Public Benefit and the Advancement of Moral or Ethical Belief Systems (September 2008), ss C1 and C3, available at

58 Re South Place, above n 35. Other organisations espousing non-religious beliefs which were also registered as charities before the 2006 Act include the International Humanist Trust, British Humanist Association and the Rationalist Association.

59 See Draft Supplementary Guidance on Public Benefit and the Advancement of Moral or Ethical Belief Systems, above n 57, s C2.

60 See Harding, above n 3, at 160.

61 Freedland, M Charity law and the public/private distinction’ in Mitchell, C and Moody, S (ed) Foundations of Charity (Oxford: Hart, 2000) pp 111 and 121 .

62 Fridman, GhlCharities and public benefit’ (1953) 31 Can B Rev 537 at 539 as quoted in at 3.

63 See Luxton, above n 20, p 171. See also Luxton, PRedefining charity for the twenty-first century’ (2004) 52 Amicus Curiae 9 (Luxton 2004), available at; P Luxton Public Benefit and Charities: The Impact of the Charities Bill on Independent Schools and Private Hospitals paper delivered at Lancaster University, 1 March 2006 (Luxton 2006), available at

64 Sanders, AThe mystery of public benefit’ (2007) 10(2) Charity Law and Practice Rev 33 at 36. This first aspect is now encapsulated in the first of the two key principles of public benefit enunciated in the Supp.G(R), above n 6, s D.

65 Commenting on this state of affairs, Piper and Coleman indicate that ‘For the first head, the argument runs that poverty... [is] a blight on our society and thus it is for the public benefit if it can be relieved. With the second and third heads, it has been accepted that we benefit as a society, if any of our members is educated or practices a religion’: A-M Piper and J Coleman ‘Who benefits?’ (2007) 90 NLJ Spring/Summer Charities Supplement 4.

66 [1948] AC 31 at 42.

67 Luxton 2004, above n 63, at 12.

68 Harding, above n 3, at 159.

69 [1924] AC 496 at 499.

70 Sanders, above n 64, at 136. This latter aspect of the public benefit requirement is now embodied in the second of the key principles of public benefit set out in the Supp.G(R), above n 6, pt E.

71 Harding, above n 3, at 349–350. See also Sanders, above n 64, at 35.

72 Luxton, above n 20, p 172, Smith, above n 31, at 65; Picarda, above n 20, pp 25–26.

73 Re Compton [1945] Ch 123; Oppenheim v Tobacco Securities Trust [1951] AC 601.

74 Lord Simonds in IRC v Baddeley [1955] AC 572 at 591.

75 Dingle v Turner [1972] AC 601.

76 Smith, above n 31, at 66. Once there was such public contact, the courts would apply what might be considered tantamount to a presumption of public benefit at one stage removed, by accepting without demanding proof that the purpose would have a beneficial impact on a sufficient section of the community.

77 Rickett, CefAn anti-Roman Catholic bias in the law of charity?’ (1990) 54 Conv 34 at 37.

78 [1948] Ch 340 at 344.

79 Harding, above n 3, at 161–162.

80 Luxton 2006, above n 63. See also P Luxton Public Benefit and the Independent Schools – Powerpoint Slides (March 2008) (Luxton 2008), available at

81 Supp.G(R), above n 6, s D2. See also F Quint ‘The rationale for charity law’ (1993–1994) 2(4) Charity Law and Practice Rev 211 at 212.

82 See Edge and Loughrey, above n 36, at 48.

83 Harding, above n 3, at 163.

84 Ibid, at 163. Harding exemplified this context by referring to Neville Estates v Madden, above n 28, and the decision of the Charity Commissioners in the Sacred Hands Spiritual Centre case, above n 42.

85 Ibid, at 164. Harding illustrated this type of situation by reference to Holmes v Attorney-General (1981) The Times, February 12.

86 Ibid, at 166. Harding referred in this connection to Re Watson, above n 25.

87 Luxton, above n 20, p 130.

88 Re Coats' Trusts, Coats v Gilmour, above n 78, at 347.

89 See Gilmour v Coats, above n 24.

90 See IRC v Baddeley, above n 74, and Dingle v Turner, above n 75.

91 Haddock, above n 7, at 152. See also Edge, PW Religion and Law: An Introduction Aldershot: Ashgate, 2006) p 110.

92 [1990] Ch 1.

93 Neville Estates, above n 28, at 853.

94 Equally instructive in this regard is the judgment of Hutley JA in the Australian case of Joyce v Ashfield Municipal Council [1975] 1 NSWLR 744.

95 Re Watson, above n 25.

96 Haddock, above n 7, at 159.

97 Re Watson, above n 25, at 688.

98 Picarda, above n 20, p 115. See also to the same effect Brady, JCPublic benefit and religious trusts: fact or fiction’ (1974) 25 NILQ 174 at 176.

99 [1953] 2 All ER 99.

100 [1968] 1 WLR 846.

101 See the criticisms of Re Warre in Warburton, J Tudor on Charities (London: Sweet & Maxwell, 2003) p 95. and Luxton, above n 20, p 109.

102 CoS case, above n 40, at 46–49.

103 Edge and Loughrey, above n 36, at 50.

104 The Commission's General Guidance stipulates in this connection that ‘an organisation must be able to demonstrate that it is set up for charitable aims that are and will be carried out for the public benefit’ See Charity Commission Charities and Public Benefit (January 2008), pt D4, available at

105 See Public Benefit and Fee Charging: Summary of Consultation Responses p 4, available at

106 See Charity Commission, above n 104, pt D4.

107 Picarda, above n 20, pp 32–33. In cases such as Incorporated Council for Law Reporting v A-G [1972] AC 73, A-G v Ross [1986] 1 WLR 252 and Southwood v A-G (1998/99) ITELR 119, the courts evinced a willingness to take account of an organisation's activities when pronouncing on its charitable status. However, from his analysis of these cases, Picarda concludes that they did not derogate from the orthodox view since the first case did not overtly suggest that the courts would focus on an organisation's activities when its purposes were clearly stated, while in the latter two, there was some ambiguity regarding the charitable nature of the relevant purposes.

108 See Charity Commission, above n 104, pt D4. See also see also the Charity Commission's Analysis of the Law Underpinning Charities and Public Benefit (December 2008) ss 4.6 and 4.11–4.13, available at

109 Supp.G(R), above n 6, pt B5. The growing emphasis on a charity's activities is further illustrated by the fact that the recently revamped online Register of Charities maintained by the Commission lists the activities rather than the aims/purposes of many charities.

110 P Luxton Memorandum to Joint Committee on the Draft Charities Bill (Luxton memo) paras 5–6, available at See also Luxton 2006, above n 63; Luxton 2008, above n 80.

111 Luxton 2006, above n 63; Luxton 2008, above n 80.

112 Hackney, above n 4, at 349.

113 Supp.G(R), above n 6, pt D2.

114 F Quint The Draft Charities Bill, Public Benefit and the Advancement of Religion paras 11–12, available at

115 Re Watson, n 25 above.

116 Supp.G(R), above n 6, pt D2 (emphasis added).

117 Ibid, pts D1–D3.

118 Harding, above n 3, at 166–170. This was the approach adopted, for instance, in the leading case of National Anti-Vivisection Society v IRC, above n 66, where the House of Lords had the difficult task of deciding whether campaigning for the abolition of animal experimentation was of benefit to the public.

119 See, eg, Re Scowcroft [1898] 2 Ch 638; Re Wedgewood [1915] 1 Ch 113; Re Grove-Grady [1929] 1 Ch 240; Re Price [1943] Ch 422; Re South Place, above n 35.

120 Supp.G(R), above n 6, pt D2.

121 Harding, above n 3, at 169.

122 Ibid, at 173–174.

123 See, eg, Webb v Oldfield [1898] 1 IR 431 at 446; O'Hanlon v Logue [1906] 1 IR 247 and Re Sheridan [1957] IR 257.

124 See Edge, above n 39, pp 154–156; Edge and Loughrey, above n 36, p 41; Haddock, above n 7, at 153.

125 Gilmour, above n 24, at 446. See also the CoS case, above n 40, where the Charity Commissioners stated that it was ‘settled law that the question whether a particular gift satisfies the requirement of public benefit must be determined by the court and the opinion of the donor or testator is irrelevant’.

126 Harding, above n 3, at 176–177.

127 Strategy Unit Report Private Action, Public Benefit: A Review of Charities and the Wider Not-For-Profit sector pp 39–40, available at

128 Luxton 2004, above n 63, at 12.

129 Sanders, above n 64, at 33.

130 Supp.G(R), above n 6, pt E.

131 Sanders, above n 64, at 43.

132 Ibid, at 57.

133 The Charity Commission and the courts which were responsible for formulating and applying this narrow definition of religion are public authorities within the meaning of s 6(3) of the Human Rights Act 1998. They are thus obliged under s 6(1) to act in a way that is compatible with the Convention. See the Charity Commission's Operational Guidance on Open Government and Human Rights, available at and

134 The compatibility of the charitable definition of religion with these Convention rights was considered at some length by the Charity Commissioners in the CoS case, above n 40, but their analysis was somewhat rudimentary and not entirely illuminating.

135 Warburton, above n 101, p 75.

136 Edge, above n 39, p 46. Belief systems that have been held to come within its scope have included the Krishna Consciousness movement (ISKCON v UK (1994) 76A DR 90); the Swiss-based Divine Light Centre (Omkaranada and the Divine Light Zentrum v Switzerland (1981) 25 DR 105) and modern manifestations of ancient pre-Christian faiths such as Druidism (Chappell v UK (1988) 10 EHRR 503 and Pendragon v UK (1998) 27 EHRR CD 179).

137 See Luxton, above n 20, p 45 and Morris, DKnow your charitable rights’ (1998) NGO Finance Charity Law Annual Review 18 at 19 (as cited by Luxton). See also Edge and Loughrey, above n 36, at 56.

138 Luxton, ibid.

139 Hopkins, R and Yeginsu, CV and Religious liberty in British courts: a critique and some guidance’ (2008) 49 Harv Int LJ 28 .

140 Luxton, above n 20, p 45. See also Warburton, above n 101, p 75.

141 Quint, F and Spring, TReligion, charity law and human rights’ (1999) 5(3) Charity L&PR 153 at 166–167.

142 Ibid, at 167–169. See also Edge and Loughrey, above n 36, at 60.

143 (1979–80) 1 EHRR 252.

144 Quint and Spring, above n 141, at 169.

145 Williamson, above n 55, para [55].

146 See, eg, Kokkinakis v Greece (1993) 17 EHRR 397 para 31, where the ECtHR described the protection afforded by Art 9 as a ‘precious asset’ for atheists and agnostics.

147 Re South Place, above n 35.

148 Edge and Loughrey, above n 36, at 60–61.

149 See Joint Committee on Human Rights (JCHR) First Report (2005–2006) paras 1.6–1.7, available at

150 See C Fairbairn The Charities Bill, [HL], Research Paper 06/18 (2008) Home Affairs Section, House of Commons Library, at 17–18, available at

151 JCHR Report, above n 149, para 1.8.

152 Vickers, above n 11, p 15.

* I would like to thank Baris Soyer for his wise counsel. I would also like to thank the two anonymous reviewers of this paper for their helpful comments.

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