(Editorial note ). On December 9, 1999, the Charity Commission of England and Wales rejected an application by the Church of Scientology to be registered as a charity. Religions are entitled to registration as charities in England, but the Commission defines religion as "a belief in a supreme being and an expression of belief in that supreme being through worship". The Commission concluded that "Scientology believe[s] in a supreme being' but this belief is not expressed through worship. Thus, the test for a religion in English law is not met. Scientology may have obtained registration as a charity without being recognized as a religion, had it proved that it was established for the public benefit. However, according to the Commission, "it could not be concluded that the benefits of the practice of Scientology extended beyond the participants", precisely because there is no public worship nor "public activity" in general. Scientology's activities "are in fact conducted in private and not in public and (...) in their very nature are private rather than public activities". Finally, Scientology could not prove that its public benefit purposes were generally accepted by the "common consensus of opinion amongst people who were fair minded and free from prejudice or bias".
Scientology's appeal before the High Court will further determine whether the English criteria were rightfully applied by the Commission. Anti-cultists' claim of a "victory" seem grossly exaggerated, if one considers that the Commission has found in Scientology a "belief in a supreme being" and "benefits" guaranteed by its "practice", although restricted to "participants" and not "extended beyond them". The decision confirms that criteria for defining religion vary in Europe. In Italy in 1997 the Supreme Court regarded Scientology as a religion, excluding both worship and "common consensus" from its range of relevant criteria. If "worship of a supreme being" is crucial, many other bodies regarded as religions elsewhere should fail the test in England. The interest of scholarly projects such as the LISOR project, aimed at studying definitions of religion, is thus confirmed. The full text of the decision follows.

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CHARITY COMMISSION
DECISION OF THE COMMISSIONERS
APPLICATION BY THE CHURCH OF SCIENTOLOGY (ENGLAND AND WALES) FOR REGISTRATION AS A CHARITY

The Church of Scientology (the Church) is an international organisation which promotes a belief system, doctrines and practices known as Scientology. The international headquarters of the Church are in the United States, but assets which are owned by the Church in this country are currently held and administered by a branch of the Church incorporated in Australia. The Church has now established a company incorporated under the Companies Acts and limited by guarantee called Church of Scientology (England and Wales) (CoS) to further its work in this country. In September 1996, CoS applied to the Commission for registration as a charity pursuant to section 3(2) of the Charities Act 1993. Since that date CoS has had a regular dialogue with the Commission about the application.

The application made by CoS was supported by a full legal and factual case and expert evidence. CoS argues that it is a body established for the charitable purpose of the advancement of religion under the third head of charity law, or, in the alternative, if not so established, that it is established for a charitable purpose which promotes the moral or spiritual welfare or improvement of the community under the fourth head of charity law. Whether under the third head or fourth head of charity law, CoS argues that it is established for the public benefit.

A significant element in the application made by CoS is that the Commissioners ought to have regard to the European Convention on Human Rights (ECHR), which is not directly applicable until the Human Rights Act 1998 (HRA) is in force. This is likely to be in October 2000. Once the HRA is implemented, it will be unlawful for the Commissioners, as a public authority, to act in a way incompatible with ECHR. This would include decisions of the Commissioners with regard to the registration of charities. Any common law authorities would accordingly need to be interpreted in a way consistent with ECHR as interpreted by case law of the European Court of Human Rights and opinions and decisions of the European Commission. Until the HRA is in force, the Commissioners are under no clear legal obligation to take into account ECHR in considering issues related to charitable status and accordingly the registration of charities.

The Commissioners however decided that as a matter of good practice, prudence and indirect legal obligation, they would, in considering CoS’s application for registration as a charity, construe the relevant legal authorities, where they were ambiguous, in a way compatible with ECHR and would otherwise take a broad and flexible approach to the relevant legal authorities in keeping with their policy and practice concerning the recognition of new charitable purposes as set out in the Report of the Charity Commissioners for 1985 at paras. 24-27.

The Commissioners having considered the full legal and factual case put to them by CoS, and having reviewed the relevant law, taking into account the principles embodied in ECHR where appropriate, decided that CoS was not established for charitable purposes or for the public benefit and was therefore not registrable as a charity under section 3(2) of the Charities Act 1993.

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In making that determination the Commissioners further concluded as follows:

(1) That CoS is not charitable as an organisation established for the charitable purpose of the advancement of religion because, having regard to the relevant law and evidence, Scientology is not a religion for the purposes of English charity law.

(a) The Commissioners considered that the legal authorities establishing the meaning of religion in charity law were ambiguous, but having construed such authorities in a way compatible with ECHR they concluded that the definition of religion was characterised by a belief in a supreme being and an expression of belief in that supreme being through worship. Re South Place Ethical Society [1980] 1 WLR 1565, Dillon J at p. 1572 D-E.

(b) The Commissioners decided that the concept of a supreme being was broader than the theistic concept of a personal creator god, but otherwise it would not be proper to specify the precise nature of that concept or require it to be analogous to the deity or supreme being of any particular religion. However the Commissioners did not find themselves compelled to reject the concept of theism altogether nor to accept the abstract concept of the notion of a supernatural thing or principle. The Commissioners concluded that Scientology believed in a supreme being.

(c) The Commissioners decided that the criterion of worship would be met where the belief in a supreme being found its expression in conduct indicative of reverence or veneration for the supreme being. R v Registrar General ex parte Segerdal [1970] 2 QB, 697 Winn LJ at p. 709A. It was not possible to worship an ethical or philosophical ideal with reverence. Re South Place Ethical Society, Dillon J at p. 1573A. Worship may manifest itself in particular activities which might include acts of submission, veneration, praise, thanksgiving, prayer or intercession. R v Registrar General ex parte Segerdal, Buckley LJ at p. 709 F-G.. The Commissioners having considered the activities of auditing and training, which Scientology regards as its worship, concluded that auditing is more akin to therapy or counselling and training more akin to study and that both auditing and training are not in their essence exhibitions of reverence paid to a supreme being and such Scientology practices are not worship for the purposes of charity law.
The Commissioners decided that auditing and training do not constitute worship as defined and interpreted from the legal authorities.

(2) That CoS was not established for the charitable purpose of promoting the moral or spiritual welfare and improvement of the community.

(a) The Commissioners considered that CoS was not analogous to the established legal authorities which governed this area of the law. Re Scowcroft [1898] 2 Ch 638, Re Hood [1931] 1 Ch 240, Re Price [1943] Ch 422, Re South Place Ethical Society. They concluded CoS was not analogous to the decided cases because it promoted a formal and highly structured system of belief (which it regarded as a religion), necessitating membership of or adherence to a particular organisation for access to or participation in its doctrines, practices and beliefs such that these were not generally available to the public at large. However the Commissioners further concluded that these legal authorities were ambiguous.

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(b) The Commissioners considered and interpreted these authorities compatibly with ECHR and concluded that the key aspects of the charitable purpose of promoting the moral and spiritual welfare or improvement of the community which could be discerned from these authorities was that the doctrines, beliefs and practices involved were generally accessible to the public and capable of being applied or adopted by them according to individual judgement or choice from time to time in such a way that the moral and spiritual welfare or improvement of the community might result. Re Price, Cohen J at p. 432. Accordingly, the Commissioners concluded, it would be possible for non-religious belief systems promoted by a membership organisation to be established for such a purpose if those criteria were satisfied.

(c) The Commissioners considered in relation to the doctrines and practices of CoS whether these were so accessible and capable of such application, but concluded that because of the nature and organised practice of the beliefs of Scientology they were on balance neither so accessible nor could be so applied such that the moral and spiritual welfare or improvement of the community might result.

(3) That CoS was not established for the public benefit.
In considering the legal test applied to organisations established for purposes falling within the first three heads of charity law in that they were entitled to the presumption of public benefit and the different legal test applied to the fourth head of charity law where public benefit had to be demonstrated, the Commissioners considered that such a distinction between the legal tests was consistent with ECHR. Public benefit was a requirement of charity and needed to be established in every case. Public benefit was therefore considered on a case by case basis. Under the first three heads of charity, it had been established that public benefit was presumed to exist although in individual cases it may need to be proved if there was evidence to the contrary. For the fourth head of charity, public benefit needed to be established although there were cases where it may be self evident and need not be proved.
The Commissioners considered whether if CoS had been established for the charitable purpose of advancing religion, it was also established for the public benefit. The Commissioners considered the presumption of public benefit applicable to organisations established for the advancement of religion. They concluded that, as in the case of all organisations established for charitable purposes, public benefit had to be present in fact for an organisation established for the advancement of religion to be charitable. Coats v Gilmour CA [1948] Ch 340, Lord Greene MR at p. 344. They further considered that in the case of such organisations, the presumption may be rebutted by evidence indicating public benefit may not be present and such evidence was not confined to evidence suggesting that the organisation was adverse to religion or subversive of morality. Coats v Gilmour, C.A., Lord Greene MR at p. 345, In re Hetherington, decd. [1990] Ch 1, Sir Nicholas Browne-Wilkinson V.C. at p. 12 D-G. The Commissioners decided that in the case of CoS, the relative newness of Scientology and the judicial and public concerns which had been expressed about its beliefs and practices, led them to conclude that it should not be entitled to the presumption of public benefit. Accordingly, it was for CoS to demonstrate that it was established for the public benefit.

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The Commissioners considered the legal test of public benefit to be applied to organisations established for the advancement of religion. They concluded that where the practice of religion is essentially private, or is limited to a private class of individuals not extending to the public generally, the element of public benefit will not be established. In re Hetherington, decd., Sir Nicholas Browne-Wilkinson V.C. at p. 12 D-G, Coats v Gilmour CA, Lord Evershed at p. 357. The Commissioners considered that this test must be applied to the core practices of such an organisation and not to incidental activities or other activities which may already be regarded as charitable.

After reviewing the practices of auditing and training, considered by CoS to be the central features of the practice of Scientology, the Commissioners considered that these are in fact conducted in private and not in public and that in their very nature are private rather than public activities such that no legally recognised benefit could be said to be conferred on the public. It could not be concluded that the benefits of the practice of Scientology extended beyond the participants. Accordingly public benefit was not established.

The Commissioners went on to consider whether, if CoS had been established for a charitable purpose of promoting the moral or spiritual welfare or improvement of the community, it was also established for the public benefit. The Commissioners considered that it was for CoS to establish public benefit as this was a purpose falling within the fourth head of charity law. The Commissioners considered the relevant legal test of public benefit to be applied to organisations established under the fourth head of charity. The Commissioners concluded that the test was that the whole tendency of charity in the legal sense under the fourth head is towards tangible and objective benefits but that in the case of an intangible benefit that at least approval by the common understanding of enlightened opinion for the time being would be necessary before an intangible benefit could be taken to constitute sufficient benefit to the community. National Anti Vivisection Society v IRC [1948] AC 31, Lord Wright at p. 49. The Commissioners considered that in the case of the purpose of promoting the moral or spiritual welfare or improvement of the community, and thus of CoS, the issue was one of intangible benefit and that in relation to intangible benefit the Commissioners considered the legal test to refer to a common consensus of opinion amongst people who were fair minded and free from prejudice or bias.

The Commissioners considered the core practices of Scientology, namely auditing and training, and concluded that the private conduct and nature of these practices together with their general lack of accessibility meant that the benefits were of a personal as opposed to a public nature. Accordingly, following the legal test referred to above, public benefit had not been established.

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