There is no statutory definition of charity however before any organization can be accepted as a charity three conditions must be satisfied. The organisation must be within the ‘spirit and intendment’ of the preamble to the Charities Uses Act 1601. It must exist for the benefit of the public and must be exclusively charitable.
Prior to the Charities Act 2006 the Statute of Elizabeth 1 contained a list of instances that were regarded as charitable purposes. The courts often referred to the Preamble for guidance. Although it was been repealed it still inspires the law relating to charities. The advancement of religion was not mentioned in the Preamble however the closest approach was by analogy to the ‘repair of churches’.
In Scottish Burial Reform and Cremation Society v Glasgow City Corporation it was held that the provision of a crematorium was charitable. Similarly in Re Vaughan the up keeping of burial ground was held charitable. The courts held there was no distinction in a gift to ‘repair God’s house or God’s Acre.’
The preamble lacks any suggestions to include other faiths as the only reference to religion was to the ‘repair of churches.’ This can be interpreted as advancement of Christianity and not religion.
Picarda says ‘the purpose of the preamble was to illustrate charitable purposes than draw up an exhaustive definition.’
It may seem that there was some leeway and flexibility to include different faith groups by analogy within the purposes listed in the preamble.
However the Goodman Report 1976 found ‘that the Statute of Elizabeth uses language that is inappropriate to contemporary concepts and requires the courts to engage in ‘mental gymnastics’ in order to include some purposes as charitable.’
It has also been criticised for being outdated.
“It seems to us that the Preamble, valuable though it has been, has outlived its usefulness.”
After some time Lord MacNaughten classified charitable purposes under four ‘heads’ in Pemsel’s case which included trusts for the advancement of religion.
The preamble, and decided case law was still referred to as there was no clear guidelines as to what constituted to a ‘religion.’ This perhaps allowed some flexibility to included different faiths as times changed.
However the issue with Lord MacNaughten’s classification was, with the growing and diverse range of charities many fell under the fourth head ‘other purposes beneficial to the community.’ Some purposes therefore ‘did not fit neatly into one or the other headings.’
This then led to many attempts to further classify additional charitable purposes. Thus the Charities Act 2006 included additional charitable purposes.
The advancement of religion remained intact and is listed in section 2(2)(c) of the Act. It is important to explore what the law in England and Wales regard as a ‘religion.
The 2006 Act does not define ‘religion’ although s.3 (a) of the act states;
a religion which involves a belief in more than one god, and a religion which does not involve a belief in a god.”
In Bowman v Secular Society Ltd Lord Parker of Waddington said,
“It would seem to follow that a trust for the purpose of any kind of monotheistic theism would be a good charitable trust.’
This shows the courts accepted other monotheistic faiths such as Islam
The Charities Act now expressly includes faiths that involve belief in more than one God such as Hinduism as well no God such as Buddhism.