The commission does not deserve this vitriol. But given the strength of feeling aroused and the potential impact on many other faith groups, it should find an early solution in the Preston Down Trust case. The trust has appealed against the commission’s decision to the First Tier Tribunal (Charity), and another battering in the tribunal could undermine the commission’s important role as an independent regulator and leave it in crisis.
The idea that the commission is persecuting Christians or singling them out is nonsense. However, working with a range of charities as I do, I am often frustrated by the commission’s approach of seeking more proof of public benefit than the law requires. This hinders traditional religious groups like the Plymouth Brethren and human rights, research, health and arts charities alike. When the commission consulted recently on new public benefit guidance, my firm was keen to stress that charities should not have to prove that their purposes will be for the public benefit, only that they might reasonably be expected to result in public benefit. Innovative charities increasingly have to battle to be registered.
An inquiry, as called for by MPs, would be inappropriate while the decision is being challenged in the charity tribunal. But the commission’s position would, if logically applied, open up serious issues not just for mainstream Christian denominations, but also in relation to the exclusive nature of Orthodox Jews, some Muslim groups and other faiths, and this could land it in crisis. The law recognises inherent public benefit in religious participation, but the commission no longer seems to acknowledge this.
The commission claims that, because it considers the law to be unclear, it cannot register Preston Down Trust. This places an immense burden on the trust, which now has the misfortune of being a test case in the tribunal. It is also concerning that the commission appears to have made its decision without a full discussion with the trust of all the facts and evidence.
The commission’s letter of refusal to the trust refers to "doubts", "concerns" and evidence that is "perhaps marginal". On the issue of such disadvantage, the commission appears to have had regard to public criticisms while also acknowledging that "we do not have any evidence before us". It has denied the trust the opportunity for an internal decision review to clarify issues of concern or where evidence might have been incomplete, forcing it straight to the more expensive and time-consuming tribunal process.
The commission has also extrapolated principles from the case of Coats v Gilmour in a troubling way. In that case, a closed order of nuns claimed public benefit because they prayed and led an example of a pious religious life in private. There was found to be no public benefit because the order was closed from public contact.
It is a big step from this to question public benefit where a religious community or congregation restricts its membership to its followers and restricts access to some of its services or meetings to its own members, but is otherwise actively involved in the community and proactively disseminating its teaching beyond its own members.
Stephanie Biden is a senior associate at Bates Wells & Braithwaite London LLP
- Read more about the background to the Preston Down Trust case
BWB is hosting a discussion for faith-based charities interested in the Preston Down Trust case on 13 December. Click here for more details