The Supreme Court’s recent decision to recognise the Church of Scientology as a religion, and therefore to allow one of its chapels to be used for marriages, is a perfect example of the law evolving to reflect changes in society, if not necessarily the public mood.
A previous High Court decision, dating from 1970, had concluded that Scientology services were not acts of worship, as they lacked "reverence or veneration of God or of a supreme being". However, in addressing this point directly, Lord Toulson stated, "Religion should not be confined to religions which recognise a supreme deity. To do so would be a form of religious discrimination unacceptable in today's society," noting that such criteria would exclude Buddhism, among other faiths.
An even more seismic change in the law relating to religious practices took place in 2006, with the abolition of the presumption of public benefit in the Charities Act. Again, the thinking behind the move was to reflect societal changes. Where previously it had been presumed that advancing religion, or indeed education, was inherently for the public good, as had been the view in, say, Victorian times, that could no longer be a sustainable proposition. Public benefit might result from charities pursuing these aims but, rather than it being presumed, they had to prove it.
So far, so straightforward, but of course the new public benefit test naturally required parameters, guidelines, indicators of what constitutes ‘the public’, and what ‘benefit’ looks like. At the time, the Charity Commission, charged with trying to implement these new rules, convened a series of meetings with those working in the charity sector to try to define these parameters. As one of those involved in these discussions, I was acutely conscious of the concerns of established charities for the advancement of religion that their longstanding practices should not suddenly put them on the wrong side of the public benefit test. After all, had not the minister in charge of the legislation, one Ed Miliband, said that no existing charity would find itself no longer compliant with the law as a result of the legislation?
And so the discussions with the Charity Commission were as broad based and permissive as possible. Not only were representatives of faith communities present, but also humanist and secularist groups. Belief systems of all types, and religions of all hues were considered - Druids, pagans, those who evangelised, and those who did not. The permissive approach naturally and sensibly allowed definitions of ‘the public’ to include sub-groups, such as the disabled, adherents of certain faiths, the elderly and so on – those, in other words, who would most probably be the intended beneficiaries of charitable endeavours. Similarly, a working definition of ‘benefit’ imported intangible but generally accepted characteristics such as the promotion of religious harmony, or of equality and diversity.
Again, unsurprisingly, beyond the parameters of what would constitute benefit to the public, were illegal acts and those that would cause demonstrable harm. Aggressive proselytising, where an organisation used heavy-handed and invasive methods to seek and make coverts, would not be permissible, as would brainwashing cults, or groups who separate adherents from their families or otherwise cut them off from society.
Allegations of these sorts of behaviours have been levelled at both the Church of Scientology and, in a case due to be considered in the first week of January 2014, at the Plymouth Brethren. However, while Scientology has never enjoyed charitable status, the Plymouth Brethren have.
The current ‘Preston Down’ case involves the refusal of charitable status to two new Brethren communities on the basis that their practices to not confer a public benefit. Previously, the courts have supported the Brethren but, significantly, the Charity Commission has questioned the body of case law that predated the introduction of the Public Benefit test in the Charities Act 2006. These long established precedents came before the courts to test what was then a presumption of public benefit, now abolished. But is it right to disregard them? After all, a presumption is just that. There was never any automatic conferral of charitable status based on public benefit, just an assumption that certain forms of activity should be taken to qualify unless successfully challenged. Sometimes these challenges succeeded, sometimes not; and the judgements that resulted, as well as the judicial commentaries that accompanied them, provide the best possible real-life case studies of the kinds of issues that charities and the Charity Commission have to grapple with when applying the Public Benefit test in the future.
The fact that this case potentially has wider implications has already been admitted in a Charity Commission memo, albeit leaked, which cited other forms of religious practice as possibly being affected.
How ironic it would be if the Church of Scientology has taken a step towards charitable status, while an established Church like the Brethren is denied its charitable status.