14 December 2012
The advancement of religion and public benefit
The decision by the Charity Commission earlier this year to refuse charity registration to the Preston Down Trust, a local congregation of the Plymouth Brethren denomination, has given rise to a significant level of interest.
This includes wide-ranging press coverage, a Westminster Hall debate on the issue which attracted an unusually high number of MPs from all sides of the House, and specific questions on the issue being raised at hearings of the Public Administration Select Committee's post-legislative scrutiny inquiry into the implementation and operation of the Charities Act 2006.
As the spotlight has been turned upon the Charity Commission, the Commission has had to face up to a barrage of criticism (at times somewhat vitriolic) and accusations that it is anti-Christian and seeking to suppress religion.
Generally speaking, such accusations would appear to be unfounded and a gross over-reaction and are certainly not supported by our own experience to date in our dealings with the Commission.
However, the Commission's decision in this particular case does give rise to some areas of concern in relation to the Commission's understanding of public benefit in a religious context and its dealings with religious organisations.
In response to these concerns the Evangelical Alliance managed to secure a meeting with Kenneth Dibble, the Commission's chief legal adviser and head of legal services and Jane Hobson, the Commission's head of policy on Tuesday, 11 December.
This meeting, attended by Dr Don Horrocks, the Evangelical Alliance's head of public affairs, Dr Neil Summerton, an Evangelical Alliance Council member and Phil Watts, a senior associate in our charities team, provided the opportunity to address some of these issues directly with the Commission.
At that meeting the following clarifications and assurances were obtained:
- under the current law the provision of services of public worship which are genuinely open to anyone to attend is in itself sufficient to satisfy the public benefit requirement even if, in practice, the numbers attending such services are small;
- contrary to what has been reported in the press, the Commission confirmed that there is no difficulty in restricting access to the sacrament of Holy Communion in accordance with denominational requirements. Difficulties only arise if restrictions are imposed upon access to the worship services of which the sacrament forms a part;
- the Commission will not involve itself in matters of doctrine except where the outworking of particular doctrinal beliefs impacts upon the public benefit of the organisation. In practice, we understand this to mean situations where the outworking of particular doctrines may give rise to detriment or harm in which case this must be weighed against the positive public benefit in order to determine whether or not, on balance, charitable status is appropriate; and
- the Commission's decision-making process is likely to become more streamlined, increasing the likelihood of appeals concerning decisions of the Commission having to be made to the First Tier Tribunal. We queried why in the Preston Down Trust case the Commission's decision appeared to be somewhat sudden and final. We suggested that a better approach may have been to write to the charity indicating the Commission's provisional decision and providing a short period of time in which the charity could have made further representations before the Commission made a final decision. This point was accepted and the Commission will consider adopting this approach in future cases. However, the Commission's representatives confirmed that the internal decision review process will not be automatically offered in the future and even where requested it will not always be granted. On the one hand this is understandable given the continuing reduction of resources at the Commission but on the other this approach is disappointing since it inevitably means an increased number of referrals to the Tribunal which it is accepted is not providing the speedy and cheap appeal process which was anticipated when the Tribunal was introduced by the Charities Act 2006.
The meeting with the Commission was positive and constructive and it was evident that the Commission are keen to allay any fears which may exist in the faith sector as regards the Commission's approach to the issue of public benefit as it applies to the advancement of religion.
Hopefully the Commission will use other means at their disposal to reinforce these key messages.
This briefing first appeared on the Anthony Collins Solicitors website.