Quickpoints
Public Benefit and Religion: Charity Commission Guidance
5th January 2010
The Charity Commission published its guidance on public benefit and religion in December 2008 and in July 2009 it published assessments of the public benefit provided by 12 charities, of which 4 were religious charities. This paper sets out the main points of the Commission’s guidance, and implications this has for charities that are currently established for the advancement of religion.What is religion?
The Charity Commission make it clear in their guidance that they are not the regulator of religion, and cannot make value judgements about the truth of religious beliefs. The Commission’s role is to look at charities that are set up for the purpose of the advancement of religion, and determine whether they do advance a religion and do so for the benefit of the public.
The Commission have to advise in the light of previous case law, which considered whether the advancement of religion could be charitable but did not define religion. Much of this case law stems from a time when the UK was not as religiously diverse as it is now, and therefore has to be approached with this in mind.
The Commission states that for the purposes of charity law, there are certain characteristics that describe a religious system of belief, namely that it:
- involves belief in one or more gods (or goddesses), or supreme being, or divine or transcendental being or entity or spiritual principle, which is the object or focus of the religion;
- involves a relationship between believer and the supreme being or entity by showing worship of, reverence for or veneration of the supreme being or entity;
- has a degree of cogency, coherency, seriousness and importance:
- promotes an identifiable positive, beneficial, moral or ethical framework,
The last two points necessarily exclude organisations set up for the self-promotion of an individual or a system set up for trivial or frivolous reason. The Commission aims to ensure that there is some form of spiritual or philosophical conviction which has an identifiable, formal content within the organisation.
Religions that do not involve a god or supreme being are expressly included in the description of charitable purposes set out in S.2 Charities Act 2006 – for example Buddhism, where the intention is to reach a particular transcendental state.
The Commission considers how to define the relationship between the adherents of the religion and the supreme being/entity. The traditional wording is “worship” but they suggest using reverence and veneration characterised inter alia by deep respect, submission, prayer and meditation. The relationship needs to be spiritual in nature, and to connect believers to the entity/being in some form.
Established religions are unlikely to have to show that they can meet the definition of religion but they will have to show that they continue to meet the public benefit test, and demonstrate, for example in their Trustees Annual Report, how they do this.
Advancing religion
Once it is accepted that the belief system is a religion, to be charitable, the religion will have to be advanced in some way. This clearly includes promotion, and increasing belief and worship through conversion to the religion, but it can also include the personal consequences of the religion being practised, such as the promotion of a moral code. Where one of the ways in which the religion is advanced is the carrying out of activities for the public generally – for example caring for the sick or the feeding of the hungry. There will need to be a demonstrable link between the religion and the activity to distinguish it from other similar secular activities.
Simply having a religious belief is not advancing religion. As Lord Denning once said, a man saying prayers by his bedside at night is practising religious faith, but not advancing religion. So, there must be a positive interaction with people in terms of worship, teaching, pastoral outreach and the like.
Whilst proselytising (seeking to convert) is a method of advancing religion, there are limits on this in the context of human rights and anti-discrimination legislation. The Human Rights Act 1998 gives citizens the right to freedom of thought, conscience and religion, and anti-discrimination legislation aims to ensure that individuals are able to exercise whatever religion they so choose. Therefore, whilst it is acceptable to seek to convert others to a particular religion, belief cannot be forced upon individuals – there must remain the right to choose.
Of course many religious organisations carry out social care work, provide housing for the homeless, and provide education at all levels. These activities may in themselves be charitable but would not fulfil the public benefit requirement unless they were within the aims of the organisation involved.
Principles of Public Benefit
1. Identifiable Benefits
1a. Clarity
A charity must be able to show what the benefits of the charity are. These do not have to be tangible or practical, but must be capable of making an impact on society. Religion helps to develop a person’s spirituality but also offers the wider benefit of promoting a moral or ethical code which benefits society.
Doctrines which are against received wisdom (e.g. eschewing medical treatment or contraception) would not in themselves be counter to public benefit but a religion based on the personal views of a founder or on a narrow group of tenets might find it hard to show public benefit.
1b. Related to aims
All charities need to be able to demonstrate that any benefits to the public are related to the aims of the organisation. For instance, religious charities may not be able to show how successful they have been in getting people closer to their god, but they might quite easily be able to indicate attendance at religious services or what, as a result of their teachings, their adherents have done to help those who are in one way or another in need.
1c. Balance against detriment/harm
Disagreement with beliefs, activities or practices (which is hardly uncommon) is not proof of detriment or harm. Situations where there may be detriment or harm include:
- Danger or damage to mental/physical health. This might include a “cult” who used techniques to erode an individual’s freewill or promoting the refusal of medical treatment within a religion. Where children or vulnerable people are involved, such harm is likely to be more significant, and may outweigh the public benefit in advancing such tenets.
- Encouragement or promotion of violence or hatred. Some religious beliefs may teach that certain activities or practices acceptable to society in general are unacceptable to adherents who might in consequence promote terrorism or other illegal action against those involved. There is an obvious difference between promoting such beliefs as an alternative viewpoint, and actively encouraging hatred towards those who condone or participate in the particular activity or practice.
- Illegal activities. This is particularly important when a religious organisation is acting outside the UK, where particular religions may be outlawed, and proselytising in such areas could mean that beneficiaries are put in danger. The Commission implies here that bringing a religion to countries where such promotion is illegal could be detrimental to public benefit. Some mainstream religions whose beliefs are by definition for all people might take issue with such a concept.
- Public opinion cannot of course decide what is or is not for the public benefit but it would be foolish to think that public concerns about harm perceived to be done by religious bodies would not be taken into consideration in any public benefit assessment.
2. Benefit must be to the public
2a. Beneficiaries appropriate to aims
The beneficiaries of charities for the advancement of religion are in the first place its adherents but also wider society may well benefit, given the moral codes and the example set to non-adherents. Accessibility is important to this aspect; who has the ability to participate in the organisation’s liturgy and teachings or is the recipient of charitable care?
The Commission’s guidance does not actually explain how a charity might show that its beneficiaries are appropriate to its aims, but it does suggest that any criteria should be set at levels which would not deny legitimate access to those genuinely wishing to join the organisation or to participate in its activities, for example by requiring high subscription levels which might exclude then poor or academic requirements unattainable by most. However, legitimate access does not include the right to full participation in the particular service or event.
Despite the publication of the first set of public benefit assessment reports having been published on the Commission’s website, the limits of this requirement are yet to be tested, as the religious charities so far assessed do not restrict access to their services and spaces.
The Commission does suggest that, if a place of worship has to be closed for security reasons, suitable information should be provided.
2b. Benefit to a section of the public is not unreasonably restricted
If the potential to benefit from a particular charity is open to all, then it does not matter that in practice, only a small number do, in fact, benefit. Patently numbers can be limited by location or size of a particular meeting place or availability of the charity’s ministers.
If restrictions on who can benefit are in place, then these need to be reasonable, and linked to the aims of the charity. It ought therefore to be possible to restrict certain benefits to members of the religion but the openness of the religion itself may then be relevant. In an example the Commission accept that in the Jewish religion certain texts are targeted at men, even though women can study the texts separately.
It is not clear from the guidance in what circumstances a religion can restrict benefits to members only but there is a suggestion that membership should itself be open to all adults who show commitment and go though an appropriate admission process. It will be interesting to see whether religions with a more restricted membership will wish to make representations in this respect.
2c. Not exclude people in poverty
People who are in poverty should not be prevented from joining because of an inability to pay subscription payments or fees that are required to access benefits. If this were otherwise, that could put public benefit into question, though it would be unusual for mainstream religions to charge fees as such.
2d. Any private benefit must be incidental
It may well be said that adherents to religions receive benefit as members, but this should not be regarded as other than incidental, though care must be taken to ensure that any member of a religious charity receiving regular assistance from that body should be in genuine need. The Commission also accepts that maintenance or housing of members of a religious order, including those who are trustees, would be legitimately incidental to its charitable purpose.
However there is clearly a concern in the Commission that religious leaders should not receive over-generous salaries and accommodation and that their status should not result in self-promotion or significant personal receipts from royalties and other intellectual property.
Conclusions
It is clear from the fact that Parliament have accepted that the advancement of religion is a charitable purpose, that charities which advance religion can continue to be charitable, and meet the public benefit requirement. The Commission has no remit – still less any wish – to change long-held religious beliefs; indeed they express themselves satisfied that mainstream religions will be able to meet the definition of religion and have tenets and practices which are capable of being for the public benefit. However, each religious charity must show that its activities are for the public benefit.
The Public Benefit Assessment reports published by the Commission in July 2009 found that each of the 4 religious charities assessed were charitable and operating for the public benefit. Fees were sometimes charged for particular services but in all cases they were found to be broadly affordable. Again, there was no evidence in these 4 charities of people being excluded from benefit.
The question of how religious charities were to demonstrate public benefit was a matter which occupied much time, energy and consultation at the Commission, prior to the 2006 Charities Act but also during its implementation. In the event this appears to be not the problem that had been anticipated. It may be that arguments over benefit to the public will arise in relation to the criteria for inclusion or over the question of detriment or harm which inevitably will be raised when the protagonists of injury or violence are linked to particular religions. If so, this will be a matter on which clarity will inevitably be sought from the Charity Tribunal or the courts.
© Stone King LLP
January 2010
Michael King* and Vicki Bowles**
Charity & Education Team
*Michael King is Head of the Charity & Education team and is a former Chairman of the Charity Law Association
**Vicki Bowles is a barrister and a member of the Charity & Education team; until October 2007 she was a member of the legal department of the Charity Commission
© Stone King LLP
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