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Religion and the Law of Charities
Published online by Cambridge University Press: 31 July 2008
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This article attempts an overview of the application of the law of charities to religion. Charity law is currently subject to revision. The advancement of religion has been one of the traditional charitable purposes defined as such in the common law. In this area of law both the courts and the Charity Commission have applied a neutral approach toward all religious denominations. This approach is in principle consistent with the content of the Human Rights Act 1998. Nevertheless the growth of religious pluralism in society and the appearance of new religions and groups generate many doubts about the definition of religion as charity. On the one hand, the courts have offered a theistic definition of religion, which is not applicable to all religious groups. On the other, in every charitable purpose some element of public benefit must be present. For religious purposes the courts assume the presence of a public benefit unless the contrary is shown, but it is not clear that all religious practices are beneficial to the community. The aim of this article is to promote a discussion about the definition of religion as a charitable purpose, to identify the problems connected with the growth of religious pluralism, and to offer some remarks about the impact of the Human Rights Act 1998 on the law of charities.
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References
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65 Human Rights Act 1998, s 6(1): ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right’. As has been stated, ‘The Charity Commissioners are without doubt a “public authority” and the Act will have some impact on the way they operate’: Luxton, P, The Law of Charities, op cit p 39. A different, more debatable question is whether charities have the characteristic of public authorities or carry out functions of a public nature under section 6. What is certain is that it is not possible to establish general criteria on this point which are valid for all types of charities; the answer depends on their functions and characteristics. About this point, see P Luxton, The Law of Charities, pp 39–41; D Oliver, ‘Functions of a Public Nature under the Human Rights Act’ in (2004) Public Law, pp 329–351; M Sunkin, ‘Pushing Forward the Frontiers of Human Rights Protection: The Meaning of Public Authority under the Human Rights Act’ in (2004) Public Law, pp 643–658.Google Scholar
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