The Charity Commission asked Dominic Grieve, the Attorney General, last year to refer the law on religion and public benefit to the charity tribunal, according to a parliamentary briefing published by the commission this week.
Grieve gave his reasons for not making such a reference in a parliamentary answer to MPs last month, but did not mention the request from the commission.
The new commission briefing gives the background to the application for charitable status by the Preston Down Trust, a congregation of the Plymouth Brethren in Devon. It says that the Attorney General "wrote to us in relation to our request that a reference be brought in the Tribunal to clarify the law in this area."
The briefing says the Attorney General's letter quoted the Solicitor General's view was that there was a point of law that required clarification in respect of the removal of the presumption of public benefit from religious charities, but that "a reference, whilst assisting the Commission by clarifying the law in this and similar cases, will be unable to give more comprehensive guidance in this area which would be of universal application."
Asked about the Attorney General apparently turning down a commission request, a spokeswoman for the commission said it discussed a reference with the Attorney General in advance of making the decision to refuse charitable status to the Preston Down Trust. "In doing so, there was no disagreement with the Attorney General on any of the issues raised or the advice he provided to the Commission," she said.
The Attorney General's response quoted in the briefing went on to say that if the Charity Commission had doubts about a particular organisation it "might refuse the application for registration and have the particular facts in this case tested by way of challenge."
In June last year the commission did turn down the application, and the trust appealed to the tribunal, which is due to hear the case in March. Since the decision, some MPs have accused the commission of prejudice against Christianity and the case has been examined in the inquiry into the operation of charity law by the Commons Public Administration Select Committee.
In a submission to the select committee last November, the Plymouth Brethren Christian Church protested that the Preston Down Trust was, in effect, being required to bear the costs from its charitable funds of clarifying the law and argued that the Attorney-General should be involved in such a case and the cost should be borne by public funds.
The new briefing paper says it has been produced because the commission is aware thgat there has been "considerable parliamentary interest" in its decision to refuse charitable status to the trust. It describes the history and practices of the group, which practises separation from society based on a translation of the Bible by the 19th-century evangelist JN Darby. Followers of these teachings are traditionally called Exclusive Brethren, it says.
The briefing does not explain the commission's reasons for its refusal, but it has said in a document submitted to the Public Administration Select Committee inquiry that it was concerned about meaningful public access to its religious services.
It also said that any alleged harm or detriment must be balanced against the benefit, and it was aware of some criticism of the practices known as "shutting up" and "withdrawal" by the Plymouth Brethren, and of the effect of the doctrine of separation on family and social life.
This week's briefing says: "It is important to say that our decision is not about the validity of the Christian religion which the members follow, nor is there any suggestion of criticism of the membership and their religious practices. The legal question for the Charity Commission is whether this particular organisation is advancing the Christian religion for the public benefit, according to charity law. This is a wider question than simply 'are they a religious organisation'.
The briefing says the commission has registered hundreds of Christian charities since 2006 and always aimed to remain impartial. It says says "it may seem strange" that a civil regulator was in charge of making decisions about the merits of different religious organisations, but this was an appropriate thing for it to do.
"We recognise that the role of registering charities and making decisions about charitable status, when the advancement of religion is a charitable purpose, means that the Charity Commission sometimes has to make difficult and finely balanced decisions about the implications of religious belief, doctrine and practice," the briefing says.