The issue has clearly caused a great deal of debate and we await with interest the outcome of the commission's recent consultation on its draft supplementary guidance in this area, which has just closed.
Under the established law, some religions, such as Buddhism, do not recognise a god and, instead, believe in supreme beings, who are worthy of devotion because of the example they set. Now, in place of a supreme being, the commission is suggesting "a divine or transcendental being, entity or principle".
The commission insists it is the regulator of charities, not religion, and does not make value judgements about religions. But not all religious purposes are charitable and, in this context, the commission needs to be satisfied that an organisation is advancing a religion. As Lord Denning neatly put it: "When a man says his prayers in the privacy of his own bedroom, he may truly be concerned with religion, but not with the advancement of religion." So watch out for closed orders of nuns and monks developing websites to reach beyond the confines of their convents and monasteries.
The advancement of religion also needs to be for the public benefit. The commission has taken on board that this is not just a question of tangible outcomes. In fact, it had made clear that good works such as caring for the sick will not form part of the public benefit requirement for religious organisations unless they are undertaken as a specific obligation of that religion.
So if some of a charity's work is not carried out as a specific religious obligation but would nevertheless fall under another of the new heads of charity, its trustees should consider amending the constitution (with the commission's consent) so that the benefits of the activity are included in a public benefit assessment of the charity's aims.
Bear in mind, also, that trustees will be under a legal obligation to have regard to the commission's finalised supplementary guidance, so trustees should make sure they read it when it comes out. This is expected to happen by the end of the year.
- Robert Nieri is a senior associate at Freeth Cartwright