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Religious charities and the juridification of the Charity Commission

Published online by Cambridge University Press:  02 January 2018

Peter W Edge  and
Joan M Loughrey
Peter W Edge
Affiliation:
Oxford Brookes University
Joan M Loughrey
Affiliation:
Supreme Courts of England and Wales and Hong Kong, Lancashire Law School
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Abstract

The Charity Commissioners have indicated that they possess a law-making role. This paper evaluates the extent to which the Commissioners have exercised this role in relation to charities for the advancement of religion, and evaluates this role in the light of the Human Rights Act 1998. The analysis draws upon both case law and decisions of the Commissioners, in particular the decision of the Commissioners to refuse status as a religious charity to the Church of Scientology.

Type
Research Article
Information
Legal Studies , Volume 21 , Issue 1 , March 2001 , pp. 36 - 64
Copyright
Copyright © Society of Legal Scholars 2001

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References

1. Charities Act 1960, s 4; now Charities Act 1993, s 3.

2. Charities Act 1993, s 4(1).

3. Framework for the Review of the Register of charities (1998) Charity Commission (hereafter ‘Framework’): Annex D, p 31, para2; see also (1966) Ch Comm Rep, para 29.

4. (1966) Ch Comm Rep, paras 29, 33.

5. Particularly in an area as controversial as charities for the advancement of religion. See C R Barker ‘Religion and charity law’ (1999) Juridical Rev 303; F Quint and T Spring ‘Religion, charity law and human rights’ (1999) 5(3) Charity Law and Practice Rev 153.

6. Framework: Annex D, p 32, para 8; see also (1966) Ch Comm Rep, para 33.

7. Charity Commissioners ‘Application for registration as a charity by the Church of Scientology (England and Wales)’ (l7/11/1999), hereafter CoS. Available online at http://www.charity-commission.gov.uk/pdfs/cosfulldoc.pdf (4/04/00).

8. Charitable Uses Act 1601, preamble.

9. This influence may have developed later than is generally appreciated. See Jones, G History of the Law of Charity 1532-1827 (Cambridge: Cambridge University Press, 1969) p 122 CrossRefGoogle Scholar.

10. IRC v Pemsel (1891) AC 531.

11. Ibid, at 583.

12. Consider the letter of the Charity Commission to the Pagan Hospice and Funeral Trust, 18 April 1996, available online at http://www.demon.co.uk/charities/PHFT/letter-from.html (4/04/00).

13. For the main principles of the cases in this area see Keren Kayemeth Le Jisroel Ltd v Commissioners of Inland Revenue (1932) AC 650; Oxford Group v Inland Revenue Commissioners (1949) 2 All ER 537; Neville Estates Ltd v Madden and others (1962) 1 Ch 832; Re Thackrah (1939) 2 All ER 4; United Grand Lodge of Ancient Free and Accepted Masons of England v Holborn Borough Council (1957) 1 WLR 1080; Re Macaulay's Estate (1943) 1 Ch 435 (note); Berry v St Marylebone BC (1958) 1 Ch 406. Cf Re Banfield (1968) 1 WLR 846; Re Pardoe (1906) 2 Ch 184. The Charity Commissioners' application of these principles is largely unexceptional: see (1965) Ch Corn Rep, Appendix C, Part A, paras 11 and 16; although see (1976) Ch Comm Rep, paras 65–68.

14. F H Newark ‘Public Benefit and Religious Trusts’ (1946) 62 LQR 234 at 235.

15. See Thornton v Howe (1862) 31 Beav 14; Re Watson (1973) 3 All ER 678; Re Schoales (1930) 2 Ch 75; and the Irish cases of Re Brown (1898) 1 IR 423; Jackson v Attorney General (1917) 1 IR 332.

16. Re Michel's Trust (1860) 28 Beav 39.

17. Re Abdul Guny Abdullasa (1936) 5 MLJ 174.

18. Eg Dwarka Nath Bysack v Burroda Persuad Bysack (1879) ILR 4 Cal 443. The Indian authorities differ greatly from current English authority, but on the point of public benefit rather than religious status per se.

19. Yeap Cheah Neo v Ong Cheng Neo (1875) 6 LR PC 381. Charitable status was not granted, but on the basis of lack of public benefit, rather than because the practices were not religious. Against that, Re Yap Kwan Seng (1924) 4 FMSLR 313 and Newark, above n 14 at 241, both suggest that this system is not a religious one.

20. A-G v Thirpooree Soonderee (1874) 1 Ky 377; Re Low Kim Pong's Trust Settlements (1938) SSLR 144; Tan Chin Ngoh v Tan Chin Tear (1946) 12 MJL 159.

21. Re Orr (1917) 40 OLR 567.

22. Re South Place Ethical Society (1980) 3 All ER 918.

23. Weiss J ‘Privilege, posture, and protection: “Religion” in law’ (1964) 73 Yale LJ 593.

24. Re South Place Ethical Society (1980) 3 All ER 918.

25. This particular organisation was found to be entitled to charitable status under the fourth head, other purposes beneficial to the community. See P W Edge ‘Charitable status for the advancement of religion: An abolitionist's view’ (1995) 3(1) Charity Law and Practice Rev 29 at 30–31 on the importance of the decision on the advancement of religion.

26. Bowman v Secular Society Ltd (1917) AC 406 at 449.

27. The dicta of Lord Parker have sometimes been taken to indicate that only monotheisms were recognised as religions under the law of charity (eg Tudor on Charities (London: Sweet & Maxwell, 1967) p 59 as cited in A Bradney Religions, rights and laws (Leicester: Leicester University Press, 1993) p 133 fn 42). In the light of R v Registrar General, ex p Segerdal (1970) 2 QB 697, albeit not a case simply on charitable status, a move beyond monotheisms has now been recognised.

28. Re South Place Ethical Society (1980) 3 All ER 918 at 924.

29. Re Watson (1973) 1 WLR 1472.

30. Plowman J characterised this exemption as based on public benefit, but it is doubtful whether a court could find that a belief system was simultaneously religious and contrary to all religion, as it could not, presumably, be contrary to itself. On the possible scope of this exemption, see Kinsey v Kinsey (1894) 26 OR 99; De Themmines v De Bonneval (1828) 5 Russ 288; Briggs v Hartley (1858) 19 LJ Ch 416; Bradney above n 27 at 122–124; H Picarda ‘New Religions as Charities’ (1983) 131 NLJ 436.

31. Newark, above n 14 at 245.

32. Cp Newark, above n 14; J C Brady ‘Some Problems Touching the Nature of Bequests for Masses in Northern Ireland’ (1968) 19 NILQ 357; J C Brady ‘Public Benefit and Religious Trusts: Fact or Fiction’ (1974) 25 NILQ 174.

33. See Yeap Cheah Neo v Ong Cheng Neo (1875) 6 LR PC 381.

34. Re Manser (1905) 1 Ch 68.

35. Consider Re Watson (1973) 1 WLR 1472.

36. Gilmour v Coates (1949) AC 426. For the status of Roman Catholic practices generally, see Bourne and others v Keane and others (1919) AC 815; Re Hetherington (1990) 1 Ch 1.

37. Newark, above n 14.

38. Gilmour v Coates (1949) AC 426 at 432. Under Newark's structure, this is the form of Divine Bounty he identifies as Grace.

39. (1949) AC 426 at 440; this being what Newark describes as Inspirational Edification.

40. At 432–433.

41. At 446.

42. At 446.

43. A point made most clearly by Lord Reid (1949) AC 426 at 457.

44. See also Re Joy (1889) 60 LT 175; A-G v Delaney (1876) IrR 10CL 104.

45. See Re Le Cren Clarke (decd) (1996) 1 All ER 715 at 723.

46. See Brady above n 32 at 177.

47. Gilmour v Coates (1949) AC 426 at 446–467.

48. (1949) AC 426 at 453–454.

49. (1962) 1 Ch 832.

50. A not dissimilar point, but in relation to literature rather than adherents, can justify Re Watson (1973) 1 WLR 1472.

51. The Charity Commission The Charity Commission Classification System (March 1997) at 26.

52. CoS 13.

53. CoS 13, para 8, CoS 14 paras 9–10.

54. CoS 1, 12 and 21; see also (1980) Ch Comm Rep, para 46.

55. CoS 1, 12 and 24; see also the Charity Commission What is a Charity (March 1996) para 20.

56. Bowman v Secular Society Ltd (1917) AC 406; Re South Place Ethical Society (1980) 3 All ER 918.

57. Re Michel's Trust (1860) 28 Beav 39; Neville Estates Ltd v Madden (1962) 1 Ch 832.

58. CoS 15.

59. cos 25.

60. CoS 21.

61. Framework 3, para 15.

62. [1835-41] All ER Rep 33l.

63. Eg the Universal Order, which described itself as a system of training in universal wisdom was refused registration and the West London Humanist Society and the Ethical Defence Union were both deregistered: (1965) Ch Comm Rep, Appendix C, Part B(I), para 13, Part B(II), paras 1–2 and see also Part A, para 10: a trust for the promotion of international brotherhood was not charitable. The reason given, without clarification, was that their objects were not for the advancement of religion. it is likely that these decisions are based upon the Commissioners’ reading of South Place Ethical Society that it is not possible to worship an ethical or philosophical ideal with reverence (CoS 24). At other times, relevant binding case law is cited: see (1974) Ch Comm Rep, para 66: The Harrogate Lodge of the Theosophical Society and Louisa Shaw Trust refused registration on the basis of Re Macaulay's Estate Macaulay v O'Donnell (1943) I Ch 435 (see also Berry v St Marleybone Borough Council (1958) 1 Ch 406); (1964) Ch Comm Rep, Appendix E, Pt II, para 2: the British Society for International Understanding removed from the Register upon authority of Re Buxton's Trusts (1962) 41 TC 235.

64. Picarda, H The Law arid Practice Relating to Charities (London: Butterworths, 1995) p 1045 Google Scholar.

65. CoS 21.

66. CoS 24.

67. By which we mean factors beyond the application of the doctrinal legal rules of charity law; rather than factors beyond the content of the beliefs or fundamental values and rules of the belief systems.

68. Framework Annex E 33, paras 3 and 4.

69. For an example of this approach, see CoS 19.

70. Framework, Annex E, p 33, para 4.

71. Re South Place Ethical Society (1980) 3 All ER 918; R v Registrar General, ex p Segerdal (1970) 2 QB 697.

72. CoS 15.

73. CoS 24 citing from and rejecting Fellowship of Humanity v County of Alameda 153 Cal App 2d 673, 315 P 2d 394 (1957) and The Church of the New Faith v Commissioner for Payroll Tax (Vic) (1983) 49 ALR 65 respectively.

74. CoS 25.

75. See discussion at CoS 22–23.

76. CoS 24.

77. Ibid.

78. See text at fn 32 above.

79. CoS 12, para iii.

80. CoS 13, para iv.

81. CoS 41.

82. COS 41–42.

83. (1976) Ch Comm Rep, p 36, para 9 of Press Release; (1981) Ch CommRep, para 72; (1982) Ch Comm Rep, Appendix C.

84. Framework Annex A, p 11. See eg (1975) Ch Comm Rep, paras 68–70: New Age Healing Trust and charities involved in fringe medicine.

85. Re Hetherington (1990) 1 Ch 1 at 12.

86. Cocks v Manners (1871) LR 12 Eq 574 at 585.

87. Chesterman, M Charities, Trusts and Social Welfare (London: Weidenfield & Nicholson, 1979) p 160 Google Scholar.

88. (1974) Ch Comm Rep, para 81.

89. (1976) Ch Comm Rep, p 36, para 8 of Press Release.

90. The Kingston Meeting Rooms Trust (Feltham) Holmes v Attorney General (The Exclusive Brethren) (1981) Times, 12 February; (1981) Ch Comm Rep, paras 26–30.

91. (1981) Ch Comm Rep, paras 72–73: see Orme v Associated Newspapers Group Ltd (1982) Times, 20 December, CA; (1982) Ch Comm Rep, Appendix C; (1976) Ch Comm Rep, para 108.

92. (1965) Ch Comm Rep, Appendix C, Part A, para 16.

93. (1969) Ch Comm Rep, para 19; although not referred to, this decision follows Re Caus (1934) Ch 162.

94. CoS 47; given that the Church of Scientology gave evidence that, inter aha, numerous religious services were carried out in public (CoS 46) it seems highly unlikely that the Church intended to concede that only training and auditing advanced the practice of Scientology: nevertheless the Commissioners’ finding can only be justified on this ground or alternatively upon the ground that the other public practices did not advance the religion, possibly upon the basis that they were not core practices of the religion. Such a distinction was not, however, expressed and would, it is submitted, be unprincipled.

95. CoS 48, 49.

96. This follows from the discussion at CoS 46, 47.

97. CoS 6.

98. (1962) 1Ch 832.

99. See also Re Le Cren Clarke (decd) (1996) 1 All ER 715.

100. (1981) Ch Comm Rep, para 27.

101. Decisions of the Charity Commissioners (1995) Vol 3 at 11.

102. (1989) Ch Comm Rep, para 58.

103. Decisions of the Charity Commissioners (1995) Vo1 3 at 13.

104. Applying a test of public benefit adopted in Re Banfield (1968) 1 WLR 846.

105. Decisions of the Charity Commissioners (1995) Vol 3 at 16.

106. Framework: Annex A, p 11, para (a).

107. (1871) LR 12 Eq 574.

108. (1902) 2 Ch 642.

109. Decisions of the Charity Commissioners (1995) Vol 3 at 14: (1989) Ch Comm Rep, para 60.

110. Decisions of the Charity Commissioners (1995) Vol 3 at 14 citing Farwell J in Re Delaney (1902) 2 Ch 642 at 647.

111. HRA 1998, s 6(1).

112. HRA 1998, s 6(2); Actions include omissions: s 6(6).

113. HRA 1998, s 7(1), (7).

114. See Manning, J and Kilpatrick, A ‘Public law’ in Baker, C Human Rights Act 1998: A Practitioner's Guide (London: Sweet & Maxwell, 1998) pp 102–106 Google Scholar.

115. CoS 6.

116. The illegality of the actions of a public authority may be used as part of a broader action, for instance as a defence to an action the public authority is bringing to enforce its unlawful decision: HRA 1998, s 7.

117. Kraska v Switzerland (1993) 18 EHRR 188; Andersson v Sweden (1997) 25 EHRR 722; MS v Sweden (1997) 28 EHRR 313; App 8282/78 Church of Scientology v Sweden D & R 21 (1981) 109: under Swedish law no right of a group to protect its reputation was recognised, although it could be exercised by private individuals; it is, however, a matter for the European Court of Human Rights or the Commission to determine whether a right is in fact recognised under domestic law and it can disregard a state's arguments to the contrary: see Zander v Sweden (1993) 18 EHRR 175.

118. Charities Act 1993, ss 3(2), 4.

119. Konig v Federal Republic of Germany (1978) 2 EHRR 170.

120. Feldbrugge v the Netherlands (1986) 8 EHRR 425; Deumeland v Federal Republic of Germany (1986) 8 EHRR 448; Schouten and Meldrum v The Netherlands (1994) 19 EHRR 432.

121. See Deumeland v Federal Republic of Germany (1986) 8 EHRR 448; Sramek (1984) 7 EHRR 351; Lombard v Italy (1992) 21 EHRR 188.

122. It can be argued that if the grant of a ‘right’ is ultimately subject to administrative discretion, then it is more accurate to classify the matter at issue as a privilege rather than a right and that this point is more relevant to the issue of whether there is in fact a right rather than to the nature of that right: nevertheless the European Court frequently takes the issue of discretion into account in determining the nature of a right.

123. Neves E Silva v Portugal (1989) 13 EHRR 535: see also discussion in Lord Lester of Herne Hill, David Pannick QC (eds) Human Rights, Law and Practice (London: Butterworths, 1999) para 4.6.10.

124. Sporrong and Lonroth (1982) 5 EHRR 35.

125. Van Marle v the Netherlands (1986) 8 EHRR 483; Tre Taktorer AB v Sweden (1989) 13 EHRR 309: withdrawal of licence to serve alcohol impinged on commercial relationship between applicant and applicant's customers and therefore involved a civil right.

126. The court would then have to be satisfied that the deprivation of rights was not justified as being in the public interest. For reasons of space this will not be considered in detail, but see Sporrong and Lonroth (1982) 5 EHRR 35; Lithgow v United Kingdom (1986) 8 EHRR 329.

127. Ringeisen v Austria (1971) 1 EHRR 455.

128. Le Compte, Van Leuven and De Meyer v Belgium (1981) 4 EHRR 1.

129. Benthem v the Netherlands (1985) 8 EHRR 1. See also Konig v Federal Republic of Germany (1978) 2 EHRR 170: but see Judge Matscher's dissenting judgment; Le Compte, Van Leuven and De Meyer v Belgium (1981) 4 EHRR I; Baraona v Portugal (1987) 13 EHRR 329.

130. In any event, eligibility for tax privileges and exemptions is not recognised as a civil right under Convention law and the court has concluded on occasion, that the fact that a right is personal, economic and individual is not decisive of its character as the same could be said of all pecuniary obligations vis-à-vis the state, even those which are clearly public law matters: Schouten and Meldrum v The Netherlands (1994) 19 EHRR 432; see also X v France Application No 9908/82 (1983) 32 DR 266.

131. Ringeisen v Austria (1971) 1 EHRR 455: Benthem v the Netherlands (1985) 8 EHRR 1; Matos E Silva v Portugal (1996) 24 EHRR 573.

132. Le Compte. Van Leuven and De Meyer v Belgium (1981) 4 EHRR 1.

133. Le Compte, Van Leuven and De Meyer v Belgium (1981) 4 EHRR 1 but see Bryan v United Kingdom (1995) 21 EHRR 342.

134. De Cubber v Belgium (1984) 7 EHRR 236; note also Campbell & Fell v UK (1984) 7 EHRR 165, where a Board of Visitors was held to be a tribunal for the purposes of art 6, although its decisions could only be reviewed on grounds of a breach of natural justice.

135. Ringeisen v Austria (1971) 1 EHRR 455; De Wilde, Ooms and Versyp (1971) 1 EHRR 373; Sramek (1984) 7 EHRR 351.

136. Campbell and Fell v United Kingdom (1984) 7 EHRR 165.

137. Van de Hurk v Netherlands (1994) 18 EHRR 48; Hiro Balani v Spain (1995) 19 EHRR 566.

138. Hiro Balani v Spain (1995) 19 EHRR 566.

139. Le Compte, Van Leuven and De Meyer v Belgium (1981) 4 EHRR 1.

140. McMichael v United Kingdom (1995) 20 EHRR 205.

141. It may be argued that the Charity Commissioners are in analogous position to that of inferior courts whose decisions are not generally criticised on these grounds. There is, however, an important distinction. Inferior courts do not purport to operate a system of precedent in relation to their own decisions, and thus lack a formal law-making function.

142. See ‘Registering a Charity’ Charity Commission, March 1996 para 33–35.

143. Charities Act 1993, s 4(2): the section provides that regulations shall be made by the Secretary of State regulating the procedure of such appeals but to date none have been made. The issue of standing to object has been subjected to a restrictive interpretation by the Charity Commissioners. See Decisions of the Charity Commissioners (1993) Vol 1, 1–3. This is especially problematic given that the same test of standing applies to external appeals against registration which lie to a judge of the High Court — Charities Act 1993, ss 4; for procedure see s 92 of the Charities Act 1993 and RSC Ord 108, r 5.

144. Charities Act 1993, s 4(3).

145. Albert and le Compte v Belgium (1983) 5 EHRR 533.

146. (1966) Ch Comm Rep, para 27; (1970) Ch Comm Rep, para 23: between 1963 and 1970, only one appeal had been made to the High Court; (1973) Ch Comm Rep, para 6.

147. Airey v Ireland (1979) 2 EHRR 305.

148. CoS 9 following Kokkinakis v Greece (1993) 17 EHRR 397.

149. CoS 10.

150. Compare, however, the court's approaches to expressions impacting on religious convictions discussed in P W Edge ‘The European Court of Human Rights and Religious Rights’ (1998) 47 ICLQ 680.

151. cos 10.

152. CoS 39: it seems they may have been considering the rights of recognised charitable groups but what these rights were and how they were protected was not properly articulated.

153. (1973) Ch Comm Rep, para 2.

154. Although the same criticism has been levelled against the under-reporting of court decisions, there is a significant difference in the degree of under-reporting: in 1980, 23% of Court of Appeal decisions were reported and 70% of those of the House of Lords and Privy Council: Zander, M The Law Making Process (London: Butterworths, 5th edn, 1999) p 247 Google Scholar. In contrast, the reports of the decisions of the Commission are a trickle: in 1966, whilst still in the initial flood of applications for registration, 63,500 charities were registered and 800 applications were rejected: of these four of the former and eight of the latter were briefly reported: (1966) Ch Comm Rep, para 74, Appendix A. In 1996, 10,000 charities were registered and a similar number removed from the register: (1996) Ch Corn Rep, para 74. Of these one was reported: (1996) Ch Comm Rep, para 60–65. No figures are available for the number of applications which are rejected or withdrawnhot pursued but out of an approximate average of 9,000 applications per year, around 65% are successful (authors’ conversation with the Charity Commission, 18 April 2000).

155. Charity Commission The Charity Commission Classification System (March 1997).

156. A large number of non-Christian religions have been assigned individual codes in the classification system but a residual category entitled ‘Non-Christian religions’ have been assigned the codes B2.10.200 and B 1.60.200 (ibid p 26): these codes are entered into the computer and should result in a list of all charities with that code. In fact, in relation to the former there were only two results, one of which had nothing to do with religion and the latter yielded no results.

157. Above n 155, p 5.

158. ECHR, art 14 (our emphasis).

159. Abdulaziz, Cabales and Balkendali v United Kingdom (1985) 7 EHRR 471. See generally Belgian Linguistics Case (1968) 1 EHRR 252. Endorsed as of general application in Ireland v United Kingdom (1978) 2 EHRR 25; Liberal Party v United Kingdom (1980) 4 EHRR 106; Gay News and Lemon v United Kingdom (1982) 5 EHRR 123; App 9369/81 v United Kingdom (1983) 5 EHRR 581; Rasmussen v Denmark, (1984) 6 EHRR 50; Airey v Ireland (1979) 2 EHRR 305; X v United Kingdom (1978) 3 EHRR 63; Dudgeon v United Kingdom (1980) 3 EHRR 40.

160. Belgian Linguistics Case (1968) 1 EHRR 252; National Union of Belgian Police v Belgium (1975) 1 EHRR 587.

161. Belgian Linguistics Case (1968) 1 EHRR 252.

162. See, for an extreme example of this, Pendragon v United Kingdom (1998) HUDOC 19 October. See generally Wingrove v United Kingdom, supra; Gay News and Lemon v United Kingdom (1982) 5 EHRR 123; Magee v United Kingdom (1995) 19 EHRR CD93.

163. Tsirlis v Greece (1996) 21 EHRR CD30; Thlimmenos v Greece (1998) HUDOC 4 December.

164. CoS 11, 39.

165. CoS 39.

166. Hoffman v Austria (1994) 17 EHRR 293.

167. CoS 39.

168. Ibid.

169. A combined Protocol 1, art 1/art 14 claim could provide a further challenge on the basis that tax exempt status and a non-charitable trusts property rights were interfered with in a discriminatory fashion: see MacGregor v UK (1998) EHRLR 354.

170. Appl 8282/78 Church of Scientology v Sweden D & R 21 (1981) 109.

171. Appl 11921/86 Verein Kontakt Information Therapie and Hagen v Austria D & R 57 (1988) 81, further holding that a legal person cannot bring an application under art 3 (right not to be subjected to degrading treatment or punishment).

172. HRA, s 7.

173. Interpretation Act 1978 (Sch 1).

174. Chappell v UK (1987) HUDOC 14 July. Appl 7374/76 X v Denmark D & R (1976) 157.

175. Canea Catholic Church v Greece (1997) 27 EHRR 521.

176. Ibid.

177. HRA, s 3.

178. CoS 2.

179. Canea Catholic Church v Greece (1997) 27 EHRR 521: it was, however, relevant that the legal personality of the Church had gone unquestioned for a substantial period of time, that a failure to grant it recognition would jeopardise its previous transactions and that it had never had any warning previously that its legal status was in doubt such as to bar it access to a court.

180. HRA, s 7(3).

181. HRA, s 9(1).

182. (1982) Ch Comm Rep, Appendix C.

183. HRA, s 9(5).

184. HRA, s 9(3): except where there has been a breach of art 5 when compensation is payable in any event.

185. See eg discussion in Wadham, J, Mountfield, H Blackstone's Guide to the Human Rights Act 1998 (London: Blackstone, 1999) p 42.Google Scholar

186. CoS 12.