Just before Christmas the Charity Commission published its decision to refuse the Temple of the Jedi Order's (TOTJO) application for registration as a charity. As it turned out, this decision on a Star Wars-based faith was the unexpected showcase for the Commission's latest thinking on the meaning of two charitable purposes: "the advancement of religion" and "the promotion of moral or ethical improvement". It also sheds some light on the Commission's current approach to the public benefit requirements attached to those two purposes.
TOTJO applied for registration as a CIO. Its proposed objects were:
"To advance the religion of Jediism, for the public benefit worldwide, in accordance with the Jedi Doctrine. (See Appendix A for further information)
To advance such charitable purposes (according to the law of England and Wales) as the Trustees see fit from time to time."
Appendix A of the draft constitution defined Jediism, setting out various doctrines and principles, and explaining who can get involved. The definition of Jediism was "…a religion based on the observance of the Force, the ubiquitous and metaphysical power that a Jedi (a follower of Jediism) believes to be the underlying, fundamental nature of the universe."
Advancement of religion
For some time, the charity law meaning of "religion" was, broadly speaking, belief in and worship of a Supreme Being. When the Charities Act 2006 was passing through the House of Commons, some MPs observed that this was unsatisfactory, since a number of religions are non-theistic. Nevertheless, attempts to insert a more inclusive definition of religion into the 2006 Act were resisted, so we ended up with a statute that helpfully explains that religions can be polytheistic or non-theistic, but – unhelpfully – fails to explain what counts as a religion in the first place.
In the 2013 case of Hodkin, the Supreme Court ruled that a building used by Scientologists was "a place of meeting for religious worship" for the purposes of section 2 of the Places of Worship Registration Act 1855, and found that previously-used definitions of religion (such as the one used in charity law) were unduly narrow. In particular, it held that "worship" includes the holding of ceremonies and rituals; it is not limited to veneration.
In the Jedi Decision, the Commission took the view that the charity law definition of "religion" must now take the case of Hodkin into account. The Commission also considered the impact on charity law of human rights cases concerning religious rights and discrimination, in which the courts have found that, to constitute a religion, beliefs must attain a certain level of seriousness and cogency. The Commission concludes "…that religion in charity law is characterised by belief in one or more gods or spiritual or non-secular principles or things, and a relationship between the adherents of the religion and the gods, principles or things which is expressed by worship, reverence and adoration, veneration intercession or by some other religious rite or service. In addition, that it must be capable of providing moral and ethical value or edification to the public and characterised by a certain level of cogency, seriousness, cohesion and importance."
According to the Commission's analysis, Jediism failed on all counts:
- the Commission was not satisfied that observance of the Force constituted belief in a spiritual principle or thing. Its main concern here was that, according to TOTJO, "there is some scope for followers to simply view Jediism as a philosophy or way of life…". To the Commission, this meant that Jediism lacked the non-secular element necessary to qualify as a religion;
- TOTJO is a wholly web-based organisation, which conducts live services on its website. It also publishes sermons and promotes meditation as a means of connecting with the Force. The Commission was not satisfied that these demonstrated a relationship between adherents and the spiritual principles concerned. Again, the Commission found it significant that Jediism could be adopted as a lifestyle choice rather than as a religion;
- although the Jedi Doctrine borrows from many religions and philosophies, the Commission did not consider that the aggregate amounted to a "sufficiently cogent and distinct" religion;
- there was some evidence that Jediism upholds particular values that might be capable of having a beneficial impact on the public. However, the lack of formal expression and promotion of these values, coupled (again) with the freedom for individuals to interpret and develop their own guidelines, led the Commission to conclude that there was insufficient evidence that TOTJO promotes doctrines or practices that are beneficial to the public. The Commission also found it significant that TOTJO focused on its members rather than on benefiting the community – notwithstanding the fact that TOTJO's doctrines and services are publicly available.
The Commission went on to consider public benefit separately, despite having concluded that Jediism is not a religion. It found that advancing Jediism was not for the public benefit, partly because it was insufficiently structured to have a beneficial impact, and partly because any benefit that it may have would accrue to TOTJO's members rather than to the public.
The promotion of moral or ethical improvement
The Commission states that, to qualify under this purpose, TOTJO (and, presumably, any other organisation seeking registration under this head) would need to show:
- clear and certain objects, incorporating a coherent definition identifying the beliefs, principles and practices to be promoted;
- that the beliefs and practices are accessible to the public and capable of being understood and accepted and applied or rejected by individuals;
- that moral improvement is central to the beliefs and practices;
- evidence of directly promoting moral improvement within society generally;
- evidence of a positive beneficial impact on wider society, not simply on the followers;
- evidence that it is not an inward-focused organisation benefiting members only.
The Commission found that TOTJO failed on all these points, for more or less the same reasons that it failed to show it was a religion: lack of clarity about beliefs (and thus whether promoting them would result in moral improvement), the freedom of adherents to choose their own "flavour" of Jediism, and what the Commission perceived as TOTJO's inward-looking nature. The same points are reiterated in the Commission's separate public benefit analysis under this purpose.
The decision has been critiqued in a number of places, with some wondering whether the Commission's understanding of religion is justified by the case law, and whether it is appropriate for the Commission to incorporate the Supreme Court's comments in Hodkin into charity law, when those comments were made in a very different legal context. Similar criticisms can be levelled at the Commission's understanding of what it means to promote moral or ethical improvement.
However, TOTJO's failure to meet the Commission's standards appears to be based on three features of Jediism:
- its lack (from the Commission's perspective) of a sufficiently coherent and cogent set of beliefs;
- the leeway given to adherents to choose how to interpret and apply its doctrines. This can be seen as an aspect of the "lack of coherence" point; and
- its focus on benefiting members rather than the public at large.
Again, looking at the case law it is possible to criticise the Commission's approach here. Back in 2008, when the Commission was publishing public benefit guidance on a variety of charitable purposes, it consulted on draft guidance on the promotion of moral and ethical belief systems. It decided to abandon the project after the draft was roundly criticised, including by a Working Party of the Charity Law Association (the Working Party). Among other things, the Working Party found the analysis in the "Legal Analysis" document that accompanied the consultation to be ill-conceived and incorrect. Nevertheless, the Commission quotes this "Legal Analysis" paper in the TOTJO Decision. One must wonder why, when considering TOTJO's application, the Commission chose to resurrect a document from a project that even it concluded was misconceived.
Part of the Working Party's criticism was that, in terms of cogency/coherence of beliefs, the Commission was setting a higher benchmark for non-religious organisations than either the case law required, or the Commission itself required when it came to religious organisations. In a 2005 case, the House of Lords examined the idea that, to benefit from protection under human rights law (and so, according to the Commission, to count as a religion or morally-improving belief for the purposes of charity law), a belief must be coherent and cogent:
"…too much should not be demanded in this regard. Typically, religion involves belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational justification … Overall, these threshold requirements should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the [European Convention on Human Rights]."
The European Court of Human Rights has held single issues such as pacifism to qualify as protected beliefs, and the English courts have ruled that organisations with purposes such as (1) extinguishing the drink traffic, and (2) the study and dissemination of ethical principles, are established to promote moral improvement. So, the threshold for coherence and cogency has not been high.
The case law is unclear on how much freedom of interpretation adherents can be given without compromising a belief system's claim to be cogent or coherent. However, the criticisms of Jediism on this point could probably be levelled at less dogmatic religions such as, say, Quakerism, and it is arguable – again – that the Commission has held TOTJO to a higher standard than is warranted by the law.
The notion that TOTJO's aims are too inward-looking is also at odds with case law on the advancement of religion and public benefit. In the 1960s, the Courts found that a synagogue – with a small membership and access to services that was more restricted than that of TOTJO – was charitable. The reasoning behind this conclusion was that "the court is, I think, entitled to assume that some benefit accrues to the public from the attendance at places of worship of persons who live in this world and mix with their fellow citizens". Although it is true that the so-called presumption of public benefit has been removed since that case was decided, it is unclear on what legal basis the Commission has determined that this more stringent test should apply, or what implications it might have for other religious charities.
All in all, this decision raises a lot of questions and one might be forgiven for suspecting that it was driven, at least partly, by policy considerations. It will be interesting to see if TOTJO appeals.
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© Farrer & Co LLP, March 2017