Charities-Trust Essay

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The legal definition of charity has historically been somewhat elusive and stands distinct from any understanding of charity in a general or popular sense. As Lord Wright observed, in its legal sense the word “charitable is a word of art, of precise and technical meaning”[1]. Viscount Simmonds further remarked that, “no comprehensive definition of legal charity has been given either by legislature or in judicial utterance, there is no limit to the number and diversity of ways in which man will seek to benefit his fellow men”[2]. The Preamble to the Charitable Uses Act 1601, also referred to as the Statute of Elizabeth I, contained a list of purposes which were then regarded as charitable. It assumed a central role for the courts as a reference point or catalogue of accepted instances of charity until almost 300 years later when Lord MacNaughten in the Pemsel case, famously classified charitable objects into four principal divisions: (i) trusts for the relief of poverty, (ii) trusts for the advancement of education, (iii) trusts for the advancement of religion, (iv) trusts beneficial to the community not falling under any of the preceding heads. These four heads of charity were used as reference whenever the inherent charitable nature of a purpose or institution was questioned until the Charities Act 2006 received royal assent. Section 2(2) of the 2006 Act now provides a modern statutory definition of charity by listing 13 descriptions of purposes deemed charitable at law. In order to be charitable, an organisation has to be established for one or more purposes within the descriptions recognised by the law as capable of being charitable, and for the public benefit.

Charity law in England and Wales has developed within the context of the traditional monotheistic religions but it has embraced for many years religions other than Christianity and Judaism. In Bowman[3], Lord Parker effectively held that it was not just the promotion of Christianity that would be recognised but that the Courts of this country were not precluded “from giving effect to trusts for the purposes of religions which, however sacred they may be to millions of His Majesty's subjects, either deny the truth of Christianity or, at any rate, do not accept some of its fundamental doctrines”. Furthermore in the Commission’s Scientology[4] decision it was firmly established that “The law does not prefer one religion to another and as between religions the law stands neutral”[5]. The English courts have, for a long time, resisted closely defining what makes some belief systems religious and others not. However in the Scientology case, the Commissioners accepted that there are various characteristics of religion which can be discerned from the legal authorities: • Belief in a god or a deity or supreme being – R v Registrar General[6] • Two of the essential attributes of religion are faith and worship: faith in a god and worship of that god - South Place Ethical Society[7] • To advance religion means “to promote it, to spread the message ever wider among mankind; to take some positive steps to sustain and increase religious belief and these things are done in a variety of ways which may be comprehensively described as pastoral and missionary”. United Grand Lodge v Holborn BC[8]. Having considered these characteristics, the Commissioners concluded that the definition of a religion in English charity law was characterised by a belief in a supreme being and an expression of that belief through worship. This definition is further refined in the 2006 Act where s2 (3) a gives a partial definition of the word religion.

However, the law does not automatically recognise as a religion everything that may designate itself as a religion and there are some principles to which a purpose must conform if it is to be regarded as within the Charities Act’s description of ‘the advancement of religion’. These general principles are gathered from the common law of...
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