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CORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 574-iii
house of commons
taken before the
Public Administration Committee
Regulation of the Charitable Sector and the Charities Act 2006
Tuesday 30 October 2012
Matthew Burgess, FRANCESCA QUINT and PHILIP KIRKPATRICK
GARTH CHRISTIE, BRUCE HAZELL and NICOLA EVANS
Evidence heard in Public Questions 138 - 285
USE OF THE TRANSCRIPT
This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
The transcript is an approved formal record of these proceedings.
Taken before the Public Administration Committee
on Tuesday 30 October 2012
Mr Bernard Jenkin (Chair)
Examination of Witnesses
Witnesses: Matthew Burgess, General Secretary, Independent Schools Council, Francesca Quint, Barrister, Radcliffe Chambers, and Philip Kirkpatrick, Partner, Bates, Wells and Braithwaite, gave evidence.
Q138 Chair: Welcome to this session on the review of the Charities Act. Would each of you identify yourself for the record, please?
Philip Kirkpatrick: I am Philip Kirkpatrick. I am the co-head of Charity and Social Enterprise at Bates, Wells and Braithwaite Solicitors.
Q139 Chair: Would you call Bates, Wells and Braithwaite one of the leading solicitors that serves charities in the country? I am not asking for an advertisement but for your experience in this.
Philip Kirkpatrick: Yes, I would like to say that. Thank you.
Q140 Chair: Mr Burgess?
Matthew Burgess: I am Matthew Burgess. I am General Secretary of the Independent Schools Council.
Francesca Quint: I am Francesca Quint. I am a barrister and I am a member of Radcliffe Chambers.
Q141 Chair: Presumably your chambers also specialises in charity law?
Francesca Quint: We do, more so than other chambers.
Q142 Chair: Thank you very much for being with us today. We are starting on the subject of public benefit. Do you think the Charities Act 2006 has been helpful in settling what public benefit means?
Francesca Quint: Yes, I think so, if I can step in ahead of others. I think it has brought to the fore the fact that the public benefit principle is an essential part of charitable status and that no purpose is charitable unless it benefits the public in some way. Therefore, I think it has helped to focus attention on what a charity is there for and explain the law as it has developed over the centuries. The way in which it was put into the Act is not necessarily the best possible way and I think there could be improvements, but as far as the fact that it is mentioned in the Act is concerned I am convinced that it was the right thing to do to put it in.
Q143 Chair: It appears a number of times in the Act and in a number of different contexts. How should that term be clarified? Is that a complicated business?
Francesca Quint: It is complex, as has been shown by the two cases that the Upper Tribunal has heard since the 2006 Act was passed. What the 2006 Act did was to say that public benefit meant what it always meant in charity law, and that was not particularly helpful in defining what it did mean, because one then had to work out what charity law said it was. One of the essential parts of public benefit is that it is not susceptible of an exact definition that could be put down in statute and left because, as in other aspects of charity law, the law changes and society has an effect on what we regard as charitable from time to time and what we regard as beneficial to the public.
Q144 Chair: Speaking as a barrister, isn’t that bad law? Shouldn’t Parliament make its intentions clear rather than perhaps leaving too much to the judges?
Francesca Quint: I don’t like to say anything in this place that would suggest that Parliament was not the best lawmaker that we have.
Chair: I think we will settle for that.
Francesca Quint: As someone who has spent their career involved with charity law and advising trustees and trying to solve their problems, one of the joys of charity law is that it is not laid down neatly in a statute and explained and unable to change. It is something that does change. It is a dynamic concept and public benefit is part of that.
Q145 Chair: It may be an intellectual and commercial joy for lawyers but I don’t think it is a particular joy for the charities involved.
Francesca Quint: It does mean that it can move with the times. The problem with a specific definition in a statute is that if it is clear enough to be meaningful it is going to be fossilised.
Q146 Chair: Doesn’t that mean that political issues, essentially political choices, are being left to jurisprudential decisions?
Francesca Quint: In my experience, those who practise in this field are very rarely affected by political considerations, particularly not party political considerations. In the sense that everything is political, I suppose that applies to what happens in court as much as to anything else, but as far as the conscious effort to decide what is charitable and what is not is concerned there is no political angle to that at all.
Philip Kirkpatrick: I absolutely agree that what the Act did was remove a presumption, which was always a rebuttable presumption, and I think to that extent it has clarified matters, but the idea that stating that charities must exist for the public benefit, which was always there anyway, has not clarified the law. I do not think it is really reasonable to expect that an Act of Parliament could clarify 500 years of very varying case law, with contradictory statements about all sorts of different types of activity, in a way that would be accessible, understandable and that would not fossilise the law, as Francesca said.
Q147 Lindsay Roy: Could you clarify what the key criteria for public benefit are?
Francesca Quint: That the purpose of the charity should be directed at the benefit of the public, and that can be a direct benefit to the public like providing a public park, or it can be an indirect benefit to the public like making sure that people who are poor have enough to eat and so on, and that means that society as a whole benefits. I think where one comes to specific arguments is in relation to the wider benefits that may result from charitable activity. For example, the argument that an independent school benefits the public through taking the burden of providing schools to a certain extent off the taxpayer has been described as a wider benefit that does not relate to the purpose, which is educational.
Chair: We are going to come to the independent schools question in a moment.
Q148 Greg Mulholland: I really think this is fundamental. We have had this very unsatisfactory and deeply unnecessarily costly situation, both in terms of the independent schools and now the Plymouth Brethren, and that is the subject of our second panel. So something is not right with the current interpretation or possibly definition, or perhaps simply the set of criteria for defining public benefit is simply not working at the moment because it is causing all this confusion. Do you not think that at the moment it is too woolly? There are many organisations that clearly deliver a public benefit that are not charities and luckily don’t want to be, a very good example being that a local community pub clearly has a very important community benefit, a demonstrable community benefit. Many social clubs and indeed many businesses and companies have a clear social benefit in terms of providing employment, treating their employees well and contributing to the economy and paying taxes, great examples being things like Rowntree’s and Cadbury and Titus Salt in the past.
So surely public benefit can’t only be an incidental part of what any organisation does. Do you not think that we need to avoid this happening again and again and again? Do you not feel that Parliament now needs to step in, clearly doing it with expert legal advice, to have a situation where instead of looking vaguely at whether an organisation may have some benefit as part of what it does, which is what we have at the moment, saying clearly a charity must fulfil this certain set of criteria and have a benefit for society in a certain way?
Francesca Quint: I entirely agree with you that public benefit is not enough to make something charitable. It is necessary but not sufficient. Every charitable purpose must be for the public benefit but not every purpose that benefits the public is also charitable. That has been the subject of a recent decision called the Helena Partnerships case where providing housing one could see was something that benefited the public but was not charitable because the people who benefited from that housing were not in charitable need. As far as the improvement of everyone’s understanding of what public benefit is concerned, I entirely agree that it would be helpful to have some further legislation just to give a bit of shape to what is meant by public benefit and also-and I think this is even more important-to assure the courts, the tribunals and the Charity Commission, who make most of the decisions in question, that public benefit is something that is not fixed, that it does depend on the social and economic surroundings of the time at which the decision has to be made. At the moment there are some very old cases that have stood for so long that they can’t be changed even if we have moved on in society. If we go to the courts we get these cases coming up again and being applied again.
My view would be that it would be helpful if there was some guidance in legislation to indicate what has to be taken into account in assessing public benefit, rather as is done in Scotland, and also making it clear that the Commission, the courts and the tribunals are not bound by precedent in the sense that they can take account of social and economic circumstances.
Q149 Chair: We are spending a lot of time on this first question. We will have to move on quickly after this, but Mr Kirkpatrick, and then I want to bring in Mr Burgess.
Philip Kirkpatrick: I think some guidance in the Bill would probably not go amiss but it won’t go to the root of it or solve all controversy over what is and what is not for the public benefit. We will always have difficult decisions. There is concern that there is now a lot of confusion about this but in fact all we are seeing now is a much more public playing out of arguments that have been had in the courts for the last 500 years in relation to what is and what is not public benefit. It is just that the Act has brought this to the fore and because of the removal of the presumption has brought light to bear on particular charitable purposes where we are again testing the law.
Q150 Chair: Mr Burgess, we are going to have some questions about independent schools specifically but do you have a general comment about public benefit?
Matthew Burgess: I was agreeing with a lot of what Francesca was saying until she got to the point of saying that further legislation was required, and that was when I was shaking my head. I agree that this is a more public debate that we are having about public benefit, but the meaning has not fundamentally changed. In terms of the judicial review that we took, what you have to recall is that we were not challenging the 2006 Act; we strongly support the principles that sit behind the 2006 Act. What we were challenging was the way in which the commission was interpreting that in its statutory guidance. So we have no difficulty with the way in which public benefit is captured in the 2006 Act. Given that the judgment in our case exceeded 100 pages, to boil that down into a series of pithy legislative statements that would be good for all time I think would be an impossible task.
Q151 Charlie Elphicke: Isn’t that the key point, that the concept of public benefit has been in the case law, the jurisprudence on this, for a very long time, and people thought at the time of 2006 Act that they were codifying the concept of public benefit and they did not anticipate the Charity Commission would then come along and issue guidance to try to reinterpret it? Isn’t the problem not the phrase "public benefit" but the Charity Commission trying to meddle with already well understood case law?
Matthew Burgess: I don’t think anyone could say the 2006 Act codified public benefit, because all it did, as Francesca said, was say that public benefit means what it has always meant, with one or two tweaks. The Charity Commission, to be fair to them, were given a very difficult task. They had to issue guidance, as a statutory obligation. From our perspective a further difficulty was that charity trustees had to have regard to that, and we felt that that guidance was incorrect and therefore trustees were being asked to take into account something that was incorrect. That went to the heart of our complaint.
Q152 Charlie Elphicke: Did you think it was cause led, politically led, rather than necessarily legal?
Matthew Burgess: No. We just felt that the guidance was wrong, and subsequently the court agreed with us.
Q153 Chair: So it was all a fair cop, guv?
Matthew Burgess: For who? For the Charity Commission?
Chair: The Charity Commission made a reasonable stab at this but did not get it quite right?
Matthew Burgess: They had plenty of opportunities to get it right and we, among many others, were telling them how they could get it more right than they did.
Q154 Chair: Can I ask a tangential question, particularly to the two lawyers? Are we disappointed that the Upper Tier Tribunal was so much like a High Court rather than the quick fix that we hoped it would be?
Francesca Quint: Terribly disappointed.
Philip Kirkpatrick: Unfortunately, it is just inevitable if you are dealing with charitable status. It is something that is essential for some organisations. They are not going to give it up lightly. They are unlikely to attend a tribunal that is going to be going to the heart of perhaps even their existence..............
Q155 Chair: Is it cheaper than going to a court?
Philip Kirkpatrick: Yes, I think it would be cheaper than going to a court but I shouldn’t think there was a heck of a lot in it. Matthew, you are probably better able to judge that one.
Q156 Chair: Shouldn’t Parliament treat their deliberations as sub judice? At the moment we don’t. Isn’t it odd that something that is behaving like a court is not treated as sub judice?
Francesca Quint: It was exactly like a court. Being in the case it felt exactly as if one were in the High Court, and it was in the court building and the judges sat above. There was none of the informality that the tribunal was-
Chair: I beg your pardon, the Upper Tier we do treat as sub judice but not Lower Tier. I have been corrected.
Q157 Kelvin Hopkins: There is another interpretation, that the Government, Parliament in 2006, deliberately did not choose to put too fine a definition on public benefit because they did not want to deal with the hot potato of independent schools. So they shoved it over to the Charity Commission and they now have the hot potato. It was described as a "hospital pass", I think mixing metaphors with hot potatoes, but anyway. My question really is, the tribunal concluded that it is for Parliament to consider whether private schools should have access to the same tax relief as other charities, so should charitable status be separated from access to tax relief?
Francesca Quint: In my view it would be very dangerous to separate them because at the moment once a charity you are entitled to the tax reliefs. There are differences at the margins but generally speaking all charities are treated alike. Once you start saying some charities are good charities and can have tax relief and other charities are bad charities and can’t then in my view there is a terrific scope for unwanted political interference in what is charitable and what is accepted for other purposes, nothing to do with politics.
Q158 Kelvin Hopkins: I take a different view. I don’t like tax reliefs in general. If Government or elected bodies, local authorities, decide that a local body or a national body is worth supporting, it should get a grant rather than a tax relief. This would then overcome some of these problems.
Francesca Quint: Not all charities are the sorts of charities that are doing something that the Government would like to see done. They may be doing something that is of a minority interest but yet very valuable, such as research into the habits of some far-flung tribe in the wilds of Manchuria or something like that. They may be adding to human knowledge in a valuable way but not in a way that is one of the priorities of the Government or any Government Department. In my view, they should be allowed and encouraged to do that if they are doing it for the benefit of the public.
Q159 Kelvin Hopkins: With the case you use, there are Science Research Council grants for pure research and so on-I can see all sorts of ways of overcoming those sorts of problems. Of course, the whole point about democracy is that all these matters are publicly accountable. In a sense the public is, through its elected representative, taking a view about which bodies deserve support and which bodies do not. Isn’t that perfectly reasonable?
Francesca Quint: Yes, and charities also have to be publicly accountable. They have to produce their accounts and they are open to the public.
Q160 Kelvin Hopkins: But it is the specific tax relief rather than public support in other ways. That is what I am arguing.
Philip Kirkpatrick: One of the most important tax reliefs that charities get is the relief on donations given to them or the tax relief that the donors get on donations to them. What these tax reliefs do is generate vast amounts of personal giving that is essential for the delivery of the social and community public purposes. In relation to independent schools, I think if Parliament thought that it should remove the charitable status of independent schools then that is what Parliament should have done. If it thought that the Charity Commission was going to do that while not in fact changing the law-I don’t think it did think that, but if it wanted to remove charitable status then it would have had to actually take that step.
Q161 Kelvin Hopkins: I must say I am not convinced by the arguments. I am sure other countries do it in different ways. We come time and again back to the problem of the independent schools. If there were to be a grant for public benefit, to help children of rich parents have a higher status education than the rest of us, I think governments would be less likely to subsidise them as they do now through charitable status arrangements.
Philip Kirkpatrick: I think it has been established that a grant for that purpose would not be charitable.
Q162 Paul Flynn: Mr Burgess, you say in your evidence that it has become commonplace to dismiss independent fee-paying schools as poor relations to proper charities. In your view is this a direct result of the 2006 Act or is there some other reason behind it?
Matthew Burgess: We have heard from this question here that independent schools are described as a problem. It is that view that there is a problem that somehow needs to be solved. My view is that British independent schools are the finest in the world, so there is no problem here that needs to be solved.
Q163 Paul Flynn: Why should Eton and Harrow have a financial advantage that is denied to a comprehensive school in an inner city?
Matthew Burgess: They don’t. They receive no state funding whatsoever.
Q164 Paul Flynn: Why do you want to have charitable status if it is no financial advantage?
Matthew Burgess: Because they are charities. They are the quintessential charity. Lord Hodgson opens his review by-
Q165 Paul Flynn: Are you saying that there is no financial advantage to an independent school in being a charity?
Matthew Burgess: Lord Hodgson opens his review by saying the oldest charity in England and Wales is actually a school, King’s School, Canterbury. Your point to me is that they should not have charitable status. My answer is they are the oldest charities in the country.
Q166 Paul Flynn: My point is I can’t see how you equate teaching the sons and daughters of prime ministers to feeding the starving in Africa, which you seem to be doing.
Matthew Burgess: No, you are making a very stereotyped statement.
Paul Flynn: The argument put forward is that somehow you are creating an advantage to the general population by providing education for children, but you are also creating a disadvantage by taking out of the system that 95% of the children in the country enjoy some of the leaders and those who set the paces. In countries that don’t have this division between fee-paying, privileged schools and schools that-
Q167 Chair: Is that the problem, Mr Burgess, that some people think independent schools are a public dis-benefit?
Matthew Burgess: Indeed they do and views very similar to those were expressed by one of the intervening parties in our judicial review but those views were dismissed as being completely irrelevant to the context of charitable status, which is what we are here to talk about today.
Q168 Paul Flynn: You said when you started you did not want to say anything about poor legislation, Ms Quint, in this. Lord Butler, who is a great observer and commentator on these matters, said in the last Parliament 75 laws were enacted, went through the whole system, the Royal Assent, but were never implemented. Nothing happened to them. We are very bad at legislating. If you want to look at an example it is the 2006 Act, which intended to do one thing and clearly failed to do it. The intention was to make the fee-paying schools accountable, to justify the reason they should have charitable status, and now that is not happening. What do we need in 2015 when a new Labour Government looks at this again and introduces a new Act? How will they get it right next time?
Matthew Burgess: There are so many assumptions behind that question that I am not sure where to begin. I am not sure that the 2006 Act was there to disestablish independent schools. If it was we would have had-
Paul Flynn: I did not say that.
Matthew Burgess: -a very different legal challenge. It would not have been a judicial review of the Charity Commission guidance. It would have been a challenge of the fundamental human right of parents to choose education systems for their children.
Q169 Paul Flynn: You are ignoring the question, I am afraid.
Matthew Burgess: No, I am answering the question.
Paul Flynn: You are having difficulty understanding it. I will try to speak in simpler language as we do, those of us who came from good comprehensives in good Labour areas, rather than being confused by the public school system. The whole point of the Act was to say to the privileged schools, the fee-paying schools, that you must establish why you are producing a benefit for the rest of society, and now you don’t have to do that because the Act was a mess.
Q170 Chair: Can I ask the two lawyers whether they agree with Mr Flynn’s interpretation of what the intention of the Act was?
Francesca Quint: It was one of the intentions of the proposals that led to the enactment of the 2006 Act that the application of the presumption-which was wrong anyway, as we are now told it didn’t ever exist-to religious and educational charities meant that a lot of such organisations were accepted as charitable and registered without looking closely at what they actually did for society. One of the purposes of the NCVO’s recommendations that led eventually to the 2006 Act was that charity should be brought back to its fundamental purpose of benefiting the public, removing any presumption that there was and forcing charities such as those you may be wanting to discuss today to demonstrate that they are set up to benefit the public, and in fact if they are set up to benefit the public then the trustees have to make sure that they do so. That is one of the objects underlying the reforms in the 2006 Act but it could have been expressed more clearly and definitely if Parliament had chosen to do so.
Philip Kirkpatrick: I would agree that the idea was to make sure that all charities are accountable for their charitable status and have to provide public benefit. That is absolutely right. You asked what Parliament could do, and I look at what happened in Scotland. By the way, this is not an independent schools question alone. This applies to all charities that charge fees, including care homes and so on. In Scotland they introduced some guidelines for how to interpret public benefit, which included, if you charge fees or if you impose any condition, is that condition unduly restrictive on introducing the class of beneficiaries? In Scotland that has led to a number of independent schools being analysed, being found not to meet their charity test and taking extra steps to meet that charity test. Where that would leave us I am not completely sure, because there are very fine definitions here. The Scots use this term "unduly restricted", the Charity Commission in its guidance talked about "unreasonably restricted" and the Charity Tribunal talked about "a minimum level of benefit that no reasonable trustee would fall below". Where one finds the true answer within those, where you can slot the piece of paper between those concepts, I find difficult and I think we will find ourselves with more case law on it.
Chair: Mr Flynn, would you forgive me? We are on to Scotland. Can I go to question 4?
Q171 Lindsay Roy: You mentioned Scotland and the changes that were made in terms of charity testing and public benefit following the review of 13 schools. The Scottish Charity Regulator has now announced a two-year investigation into whether 40 independent schools are meeting public benefit. Do you think that will have an impact on the charitable status of independent schools here? Will there be some lessons learned from that?
Philip Kirkpatrick: I think there should be some lessons learned from it. The public benefit tests are not so far apart, as I have indicated. The other finding of the Independent Schools Council case was, quite correctly, that these are matters for the trustees but there is a level below which no reasonable trustee will go. I am very concerned to find that we have a regulator that is able to regulate that level in a reasonable way. It is difficult to say whether the level is exactly the same for an independent school or other fee-charging charity in Scotland as for a fee-charging charity here. I would have thought there should not be a difference.
Q172 Lindsay Roy: Should there be a similar investigation in England and Wales?
Francesca Quint: There has been. The Charity Commission did some assessments. In fact they added to the problems.
Q173 Lindsay Roy: How robust were these investigations?
Francesca Quint: They could be criticised and were criticised because it tended to indicate that the only thing the Charity Commission was interested in was how many bursaries were provided at independent schools rather than looking at the other ways in which an independent school could benefit the community. That was the flaw, in my view, in those assessments but there were some other assessments later into arts charities and sports charities and they were quite interesting in the way they dealt with it. There were investigations into some religious charities and I felt the way they approached that was rather weak. These are very subjective questions and every charity is different. It is very difficult to draw a conclusion from one to another.
Q174 Lindsay Roy: Can you sum up any lessons learned from the Scottish experience that can be applied here?
Francesca Quint: They have a statutory provision that indicates certain of the elements of what is meant by public benefit. That is something that we could learn from.
Q175 Chair: Mr Kirkpatrick, do you agree with that?
Philip Kirkpatrick: I do. I wonder whether we would be learning the same lessons if in fact the Office of the Scottish Charity Regulator was being challenged in the way that the Charity Commission has been challenged here, whether we would find that its guidance was also flawed. That has not happened and the schools looked at so far have been content to make the changes sought by OSCR.
Q176 Kelvin Hopkins: The tribunal concluded that public benefit must be more than de minimis or token benefit to the poor. It is very clear to me that if a charitable educational institution provides free education for poor and disadvantaged children it is a charity. It would be a public service in my view but it could be considered a charity. When rich people see this as advantageous and start paying money in and the poor get squeezed out it ceases to be a charity and becomes a privilege for wealthy people. I don’t think there is a problem, we are just shying away from it, as did indeed the Government in 2006. Should we revisit the Act and make it very clear?
Philip Kirkpatrick: I think if you revisit the Act in relation to independent schools you will need to revisit the Act in relation to all fee-charging charities, and I am particularly concerned about the effect that would have on our care services. Our care services are by definition expensive, they are things that rely on a certain amount of private payment and a certain amount of Government payment in. So if you are looking at charities that charge fees you must, as indeed the Charity Commission has, look at care homes, for example, to work out whether they are also charitable. It is interesting that the challenges to the Charity Commission have-
Q177 Paul Flynn: Like Winterbourne for instance?
Philip Kirkpatrick: There have been a number of them. I don’t think that was one of the cases that was looked at as a matter of public benefit. It really needed to be looked at for other reasons, as we know.
Q178 Chair: May I ask two very technical questions? One is, if Parliament produced a taxonomy of organisations that should be charities, would that be a very complex task?
Francesca Quint: It would be very difficult because you would be trying to deal with the future as well as the present, which is evolving.
Q179 Chair: So it is not possible and should not be attempted?
Francesca Quint: I don’t think that that is possible.
Q180 Chair: Secondly, related to the Scottish question, at the moment for a charity to operate through the United Kingdom they have to register as a charity in all the different jurisdictions that are now devolved.
Francesca Quint: And now Northern Ireland as well. It is absolutely ridiculous, in my view.
Q181 Chair: Could we have a system where if you register in one jurisdiction that passports you into operating in the other jurisdictions? Wouldn’t that in fact promote a harmonisation of public benefit across all jurisdictions?
Francesca Quint: It certainly would. It would be extremely helpful if the various different interested, powerful organisations agreed. One of the problems is as soon as the Scots got their devolution and were able to have their own charity regulator they decided they were going to have a different definition from the definition that was being adopted for England and Wales and that they would apply their own rules in a specifically Scottish way. That is a cultural effect of having devolution. The awkward thing is that the tax relief is dependent on English charitable status law and therefore a Scottish charity could in theory be a charity in Scotland but not entitled to tax relief nationally. It would therefore be extremely helpful if there were one definition across the UK for charitable status, including public benefit, and for the purposes of tax relief.
Q182 Chair: In your view does that mean un-devolving the whole question of charity law?
Francesca Quint: No. It would simply mean that the same test would be applied in each of the three jurisdictions.
Philip Kirkpatrick: It would be ideal to do it but I think it would be an attack on the devolutionary principle. The Scottish test is different from ours. There is one fundamental difference, in that if you are connected with the state you cannot be a charity in Scotland. That would have a huge effect on a number of charities here.
Q183 Chair: What about the idea that if you are registered in England you can be a charity in Scotland as well; if you are registered in Scotland you can be a charity in England? Would that work?
Philip Kirkpatrick: Yes, but it would be a different view on the devolutionary principle, I think. It would work, and it should work.
Q184 Lindsay Roy: That indeed was the recommendation of the Calman Commission, that there should be one definition. Am I right?
Philip Kirkpatrick: Yes.
Q185 David Heyes: Whether you subscribe to the view that there is a need for more legislation to clarify this issue of public benefit or whether you are agin that and don’t believe there is scope for it, we are where we are and it is unlikely that there is going to be any legislation in the short to medium term, certainly in my view. The Charity Commission still has to operate. They have an objective to promote awareness and understanding of the operation of the public benefit guidance. In the situation we are in now how should they best go about doing that?
Francesca Quint: They are in the process at the moment of revising their guidance. They have consulted widely on it. They have been a little bit ambitious because they have envisaged online guidance that not everybody can navigate particularly well. I think they still have some work to do on the draft that I saw last month. The best thing, in my view, that they could do is provide the guidance in as simple form as they can and indicate what is the minimum that is going to be acceptable so people know what is expected of them and just make it available to everyone and encourage debate on it.
Q186 David Heyes: Mr Kirkpatrick, you have raised the prospect of just sitting back and allowing the case law to emerge.
Philip Kirkpatrick: Only rather than Parliament trying to tie down public benefit, which as Francesca has said, would fossilise it. Certainly there should be guidance. This is something that Parliament, I think quite rightly, ducked and therefore probably should not criticise the Charity Commission too much for finding difficult. We all know it is difficult. The second stab is much better than the first. I think they are going too far. They are including in their current guidance, which trustees have to have regard to, things that really are not relating directly to the public benefit and they are also again, I think, in a number of areas developing new principles that are not there in the case law. I think what they have to do is be really committed to putting into this guidance the principles that are in case law that can be agreed. Hopefully the consultation process will deliver that. I don’t think it did deliver it the first time round when a lot of us put in submissions in relation to it and found those submissions rejected because the commission was fairly sure at that time what its view of public benefit was.
Q187 David Heyes: Is there an inference from what you say that you fear the Charity Commission has not learned from their experience on the tribunal judgments?
Philip Kirkpatrick: There are a couple of elements in the revised guidance where I do think that is the case, yes.
Q188 David Heyes: Can you expand on that?
Philip Kirkpatrick: In one, I think they are developing new ideas applicable to trustee duties, for example proposing that there is a duty to act fairly, which I don’t think exists in case law, and a duty to be transparent. These are very different from the real duties of trustees, which are to act reasonably and prudently and not irrationally. So they are pushing the trustee duty away from that which I think you can find in case law. I think they are also being a little bit too restrictive on how we define what is for public benefit, the levels of proof that are required that something will produce public benefit rather than can reasonably be expected to. I worry that that will restrict the development of new case law and its interpretation of new and registration of new charities.
Francesca Quint: We have only seen the draft guidance so far and a lot of comments have been made. I was at a meeting recently about the guidance that is being produced in Northern Ireland and some of the Charity Commission people were there. One of the things that the Charity Commission in England had taken on board from the consultation was the need to differentiate between the statutory guidance, which is the guidance that the Act requires them to provide, and any other guidance such as good practice that they would provide under their general powers, which they can also do. I think the next version of the guidance is going to differentiate between those two things, so I think they have taken on board the sorts of points that Philip has mentioned.
Q189 Chair: Can I press on a point, which I think is a really important one: what are the lessons that the Charity Commission should learn from the Upper Tier Tribunal’s judgment? May I summarise it this way, that it is wrong to interpret the new Act as changing the law? The new Act has sought to transport the jurisprudence of previous judgments into the current law and therefore it is wrong for the Charity Commission to try to import new principles into their guidance that are not already reflected in the existing jurisprudence of the courts that preceded the Act. Is that a correct summary?
Philip Kirkpatrick: I would agree with that but I would add one more. I think the Commission did not recognise sufficiently the discretion given to trustees to determine how to pursue their charitable purposes.
Q190 Chair: That would be reflected in the previous jurisprudence?
Philip Kirkpatrick: Yes.
Francesca Quint: In my view, that is the nub of it. The Commission did not respect the trustees enough. The Commission regarded itself as knowing better than the trustees sometimes.
Q191 Chair: Mr Burgess, carrying your scars of battle?
Matthew Burgess: I was going to agree with your summary. The duty to issue guidance is a duty to issue guidance that promotes an awareness and an understanding. That is what it is meant to do. If it does not promote an awareness and understanding then it has failed in its task. It failed in its task the first time round. I hope it does not fail the second time.
Francesca Quint: I think they have an almost impossible task.
Q192 Chair: In view of the political disagreements that you have seen in this Committee?
Francesca Quint: Yes, that is a different aspect, but from a purely legal point of view they have an extremely difficult task to reflect in plain English centuries of case law.
Q193 Chair: In thousands of pages of judgments?
Francesca Quint: Yes.
Chair: I understand the point.
Philip Kirkpatrick: Often contradictory.
Q194 Charlie Elphicke: Mr Kirkpatrick, your firm provided a written submission to this Committee and said that the current restrictions on political activity are reasonable and proportionate, but then you say that some of them ought to be lifted and the law liberalised. Can you elaborate on that?
Philip Kirkpatrick: I think one has to be clear here that the law in relation to this is not clear. What we have is a document CC9 the Charity Commission’s guidance, which is guidance on the commission’s view about what the law is. We think that is very good guidance, we think it is a vast improvement on the guidance that they previously had and enables charities to largely do that campaigning that they need and should do. There is one issue as to whether a charity can spend all or most of its resources in political campaigning of one kind or another. I am not clear that the law says they can’t and I think the law should be clarified to enable that, although it is a very delicate issue, quite a complex one, and there will be some organisations where the spending of all their resources on campaigning on one issue will indicate that they are not a charity at all, they exist for a political purpose. But there is a real difficulty that flows right across most Charity Commission guidance, public benefit guidance, campaigning guidance, and that is sometimes a conflation of purposes for which charities exist and activities that they undertake. I think that has become a problem with the guidance on campaigning.
Q195 Charlie Elphicke: The report by the Institute of Economic Affairs says that these sort of charities are all sock puppets and they go on to say, "This campaigning subverts democracy, debases the concept of a charity" and the current guidelines have "led to a free-for-all with some charities seemingly able to engage in political lobbying on a permanent basis". Do you agree with that view?
Philip Kirkpatrick: Only the last part of it, that it enables some charities to engage in political lobbying on a permanent basis, and only some charities. When I take, for example, a charity that exists to abolish slavery, I can imagine that most of its activities would be involved in engagement with people at the UN, engagement with legislators in other countries, seeking changes to the law, seeking proper enforcement of the law, all of which would be political campaigning. I think an organisation like that that genuinely pursues a charitable purpose should not be regarded as a political body and non-charitable for doing that. There are other situations where that would not be the case.
Q196 Charlie Elphicke: There are charities like Shelter that do not provide any shelter. The NSPCC went through a phase of just pure campaigning; they have now got back to more core mission. I think they took over Childline and are now engaged again in practical stuff. Do you think there is an element that the public will be concerned about charities that talk the talk rather than walk the walk?
Philip Kirkpatrick: I think there is always public concern about charities in one way or another. The public is engaged with charities because charities are engaged in all forms of human life. But taking Shelter as an example, I don’t think Shelter has provided shelter ever since Cathy Come Home, which set the whole thing off. They provide a huge amount of advice and they seek to ensure that there is a legislative framework that protects their beneficiaries, which I think is entirely justifiable, a proper use of charitable resources, and has been ever since they have existed. I don’t think it has changed.
Q197 Charlie Elphicke: Finally, if you are going to liberalise and basically say any old campaign can be a charity, do you think in that case political parties might well be charities?
Philip Kirkpatrick: No. You have to exist for a charitable purpose, and clearly political parties exist for a number of purposes, which may well be and ought to be, and I am sure are, for the public benefit. There would be no political party that thought it existed other than for the public benefit, but it is not seeking to deliver a defined charitable purpose.
Charlie Elphicke: Most of us are very concerned to alleviate poverty and promote education and better healthcare.
Q198 Robert Halfon: Agreed. Given what you have said that you think all charities should be able to do political campaigning and the law be liberalised, would you consider the Charity Commission has made arbitrary rulings allowing some organisations to become charities and some not on grounds of political activity? For example, the CSJ, the Centre for Social Justice, had problems in becoming a charity but the IPPR was allowed to be a charity and the Smith Institute and other examples.
Paul Flynn: What do these acronyms mean?
Robert Halfon: The Institute for Public Policy Research and the Centre for Social Justice.
Chair: The Adam Smith Institute is a charity, the IAA is charity.
Robert Halfon: When you are going under the line you are going under you make no distinction between pressure groups and charities and therefore all pressure groups should be charities, because they are all campaigning for something that people like, whether it is to do with the environment or whatever it may be.
Chair: What is the objective test?
Robert Halfon: Surely a charity should be about doing practical things, helping people, not just setting up a big lobby organisation and spending millions of pounds on public relations and public affairs and being in Parliament lobbying MPs or whatever it may be. Surely the real test of a charity is what it does on the ground to make a difference to people’s lives.
Q199 Chair: All right, what is the objective test?
Philip Kirkpatrick: The objective test is, do you exist for a charitable purpose and is that for the public benefit, and do you then act in the public benefit. Charities have never been as simple as you are only charitable if you are doing practical things on the ground. The charity law has always accepted the concept of indirect benefits so a grant funder, for example, is doing no practical work on the ground. This is one of the most difficult areas of charity law where there is no clarity as to what the law is. Many people, possibly most of the people in this room, would disagree with my analysis of what the law is on this and think the Charity Commission has it absolutely right, but the law is not clear and I think it should be. The example I give of the slavery charity, which would not really have necessarily any practical things it can do-it might choose to alleviate the suffering of particular slaves-should be able to act by lobbying, by trying-
Q200 Robert Halfon: Yes, but why does it need to be a charity? It could quite easily be a pressure group, and there are many pressure groups who are not allowed to become charities. Surely charities for the public good really means making a difference to people’s lives on the ground, not just coming into Westminster and spending millions on public relations. That is not a charity in my view.
Philip Kirkpatrick: Not all pressure groups exist for charitable purposes.
Q201 Chair: Is the Independent Schools Council a charity?
Matthew Burgess: We are not, no, but we are a not-for-profit company.
Q202 Chair: If you are campaigning for independent schools, and many independent schools are charities, that would seem a reasonable charitable purpose, would it not, Mr Kirkpatrick?
Philip Kirkpatrick: If their purpose is to advance education and they do that for the public benefit, and they do that by various means, mainly lobbying perhaps, that could be charitable. But if, in fact, that hides a political purpose that seeks a particular change in the law or a particular thing that is not itself a charitable purpose, that would take it outside. It is a hugely complex area.
Q203 Chair: Is this a matter that Parliament needs to address with legislation, in your view?
Philip Kirkpatrick: If Parliament doesn’t address it through legislation, if there are organisations that wish to challenge the current guidance then it may to come to court. I would like to see legislation that deals with it, which encourages the Charity Commission to produce guidance on the limits of what I am suggesting. What I am not suggesting is an unlimited power.
Q204 Charlie Elphicke: Is there a deeper issue here? Just very briefly, if a member of the public puts a pound in a rattling tin and that money is then spent on press officers and Bell Pottinger to lobby a bunch of politicians, would that member of the public not be a bit concerned and a bit disgusted and feel perhaps a bit cheated?
Philip Kirkpatrick: It depends whether the person putting the money in the tin knows what it is for. The expenditure of charities is never closely analysed by the public at large, it is analysed by large funders or by committed givers. It is very rarely analysed by-
Q205 Robert Halfon: Following on from that, do you not think it should be required by law for all charities to be absolutely transparent how much they are spending on public affairs and lobbying on political campaigns, which is not possible to see at the moment? I can guarantee to you, people who donate to Shelter think that they help the homeless on the streets, which would be a very noble cause, but they don’t realise that they spend all their money just on political campaigning, often with a particular view. People do not realise that that is the case. That should be made known.
Philip Kirkpatrick: I think that is a very interesting point. First of all, I would say that I think Shelter is a very noble cause in what it does but we have examples-
Q206 Alun Cairns: Just out of interest, are they clients?
Philip Kirkpatrick: They have been. I am not sure if we are acting for them at the moment on anything.
Alun Cairns: That says it all.
Robert Halfon: You need to be transparent, not use your links with various organisations. I think that is a disgrace.
Chair: Order, order.
Philip Kirkpatrick: I think that is quite a shocking thing to say. Shelter is a noble cause, the charities out there are doing tremendous work, and I don’t say Shelter is a noble cause because I have in the past acted for them. I think that is really quite unfair.
Q207 Robert Halfon: You were paid by them?
Philip Kirkpatrick: I am not paid by them.
Robert Halfon: You said you acted for them.
Philip Kirkpatrick: Yes, we did act for them.
Robert Halfon: So you were paid by them.
Philip Kirkpatrick: Yes. I am not saying it for that reason. I think that is a very unfair comment. But I do think that your suggestion that organisations that spend money on political lobbying ought to explain what they are doing to the public is right. We do do that in relation to fundraising costs, for example, so I don’t see why we shouldn’t do it. If people are concerned about that, and there is every reason why the public should be concerned and should be knowledgeable about it, then it should be explained. I am all in favour of transparency.1
Q208 Robert Halfon: So you think there should be a law that says it should be exact and transparent how much these charities are spending on political campaigning, and there should be some consistency in the fact some organisations are not allowed to become charities who do political campaigning as you describe but some others are?
Philip Kirkpatrick: I think it is something that could be introduced, for example in the statement of recommended practice on charity accounting or in the accounting regulations. It is something that would need thought. I think it is a very interesting idea, yes.
Q209 Chair: Anything to add from our other panellists?
Francesca Quint: The other thing about that is that it is very difficult to assess the impact. Sometimes you can have a direct result from campaigning, which you can then, as a charity, claim something you have achieved, for example the RSPCA and the Hunting Act. But on the other hand quite a lot of political campaigning and lobbying helps to create an opinion, helps to influence people, make people more aware of problems without your being able to say, "This is the effect of what we have done and it was money well spent." So I think it is quite a subtle assessment to make to see whether a charity has made use of its resources in a sensible way in using some of them for campaigning.
Q210 Chair: But you agree with the transparency point?
Francesca Quint: I certainly agree the more transparency the better.
Q211 Chair: You have been very informative for us and we are very grateful. I have two very brief supplementary questions. We are about to come on to the whole question of religious organisations. Would you say that the same lessons that you think the Charity Commission should learn from the Upper Tier Tribunal case in the case of independent schools should apply to their approach to the matters of public benefit in religious organisations, in that they should not be trying to import new principles, they should be simply carrying over principles from previous jurisprudence? Would that be your view?
Francesca Quint: The awfully difficult thing is that nowhere has any judge spelled out exactly what the public benefit of a religious organisation is. There have been cases, for example the Synagogue case in the 1960s, where the judge said, "Right, they don’t let other people come into their services but the fact that when they are not at synagogue they take part in the community and their code of conduct affects what they do as they interact with other people itself is beneficial because they are taught to be good in the synagogue and when they come out they remain good and so they have a good influence on the community, an indirect benefit."
Q212 Chair: So that should be the principle?
Francesca Quint: That is one principle. Other cases have said advancing religion, which is what it is-not to be a religious charity, but to advance religion-doesn’t include private prayer, as was held in the case involving a closed community of nuns. The fact that they prayed very hard and that they believed that their prayers were helping everybody did not cut any ice with the courts or the House of Lords who said, "Well, we can’t test that." Therefore they were not a charity.
Q213 Chair: For brevity’s sake, does Mr Kirkpatrick agree with that?
Philip Kirkpatrick: I do.
Q214 Chair: Marvellous. Finally, Mr Kirkpatrick, the Bates Wells and Braithwaite evidence very strongly defends the voluntary principle of trusteeship, and we are aware this is potentially very contentious. Would you like to enlarge on that in any particular way? Do you think we would be making a great mistake recommending acceptance of Lord Hodgson’s recommendations on this point?
Philip Kirkpatrick: I think it would be a mistake; a great mistake is probably putting it too strongly. I am nervous of the idea that just because you are a large charity you are more responsible than the trustees of a smaller charity, the suggestion that larger charities should be able to pay their trustees for being trustees whereas smaller ones need to get consent. So I am nervous about the creation of this idea of a two-tier scheme. I think the current system works quite well. There is no principle that trustees can’t be paid. There is no charity law principle that trustees can’t be paid. It is a simple law that applies to all fiduciaries that you cannot be paid for the things you do unless you are authorised in some way.
One thing I am also concerned about, which I just have not seen coming out of any of the arguments, is that if you are a paid trustee the courts will accept a much higher standard of care from you than if you are a volunteer trustee.
Q215 Chair: You mean the court will demand a much higher standard?
Philip Kirkpatrick: The court will demand a much higher standard of care. I haven’t really seen that coming across in any of the debates. I think that needs to be understood.
Q216 Chair: But if you are a trustee you are a trustee. Should there be a distinction?
Philip Kirkpatrick: There should. I think the courts need to be lenient with volunteer trustees who are doing their best to do good for society and those who are being paid can be expected to have a higher standard.
Q217 Chair: Anything to add, Francesca Quint?
Francesca Quint: I would only say that I agree with that in general. As a trustee myself of a large charity I have sometimes felt, "Oh, I should be paid for doing this," when I have spent a lot of my spare time explaining the law to them, but in fact that was not why I became a trustee and I wouldn’t have felt terribly much as though I was doing the best I could for the charity if I wanted to be paid.
Q218 Chair: But you could charge for your professional services even though you are a trustee?
Francesca Quint: Yes, but it wasn’t the tradition of the charity I was in and I wouldn’t have wanted to ask. The other thing I would say is I believe there has been some research done that shows what happens if you do pay trustees and the result is that they attend more meetings. It doesn’t mean to say that they necessarily perform better.
Philip Kirkpatrick: I have seen examples of boards that are fully paid where the payment of trustees seems to me to be an underlying problem with the governance of the organisation. It is not a simple question.
Q219 Robert Halfon: In your firm, how many charities who do just political campaigning does your company advise and give assistance to?
Philip Kirkpatrick: I really couldn’t say. We act for thousands of charities right across the spectrum from campaigning organisations to independent schools to poverty relief.
Q220 Robert Halfon: You must have a general idea of roughly how many charities primarily indulge in political campaigning that you advise?
Philip Kirkpatrick: I don’t think I have any charity clients that primarily engage in political campaigning. I would think that many of the larger charities do quite a lot of it but almost none primarily, I would think.
Q221 Chair: I think Mr Halfon is asking whether you might be conflicted in that you derive a significant part of your income from advising such charities?
Philip Kirkpatrick: The charities we advise are absolutely across the spectrum of the charitable landscape.
Q222 Chair: What sort of proportion of your income would be reflected by political campaigning in charities?
Philip Kirkpatrick: At a wild guess, 3%.
Chair: Can I just state for the record that members’ questions are their own and that the Chairman of the Committee as a whole is not responsible for people’s questions? Thank you very much for your evidence.
Examination of Witnesses
Witnesses: Garth Christie and Bruce Hazell, Elders, Plymouth Brethren Christian Church, and Nicola Evans, Senior Associate, Bircham Dyson Bell, gave evidence.
Q223 Chair: I welcome you to this session on religious organisations and charitable law. Could each of you identify yourselves for the record, please?
Bruce Hazell: Bruce Hazell, representing the Plymouth Brethren Christian Church.
Garth Christie: Garth Christie, doing the same.
Nicola Evans: Nicola Evans from Bircham Dyson Bell.
Q224 Robert Halfon: Good afternoon, thank you for coming. Did you ever have the opportunity to make it clear to the Charity Commission that members of the public were free to attend your services?
Garth Christie: Yes, we did have that opportunity. We have made that clear repeatedly in our discussion and in the submissions to the Charity Commission, and indeed in September 2011 I personally attended a meeting with the Charity Commission where I stood up and told them of very recent examples. I am from Horsforth, Leeds so I am associated with the Horsforth Gospel Hall Trust, and I was down there representing them. We regularly would have visitors attending our services, they are very welcome and I made this very clear to the Commission. In fact I gave them an example of an Iraqi family that had visited the Sunday previously, that have been coming to our services for over 10 years now, and they had been tortured, murdered and been the subject of persecution because of their Christian beliefs in Iraq and fled to the UK, and we have helped that family in a charitable way. Does that answer the question?
Q225 Robert Halfon: Have you been given the opportunity to make the Charity Commission aware of the charitable work you have done in areas across the country? I know the work you have done in my area and I have seen that for myself, in what you have done in giving people food who have no religious connection with the Brethren whatsoever and so on, but have you given the Charity Commission examples of other charitable work that you do?
Garth Christie: Yes, we produced this document here Public Benefit: the Plymouth Brethren Christian Church, and that is full of examples that should be part of our evidence. Everyone here is welcome to a copy. It is full of examples of what we have done for the wider community. We don’t normally do this with our members, but over the last three months we asked our members to declare what they were doing personally by way of private giving to various charities. It came to just over £330,000. That would be from our charities and from members of our churches.
Q226 Robert Halfon: Has the Charity Commission made clear to you the area they believe you have failed in that means you can’t be classed as a charity?
Garth Christie: Not at all, we are totally confused. The refusal to register what was put forward as a test case charity, after discussion with them, came as a bolt out of the blue, if you like. What we feel is that we have been, to use an example, sitting in an exam and being asked for an answer but not being told what the question is. Does that make sense?
Q227 Robert Halfon: Have you asked why it is that the Charity Commission recognises Druids as a charitable organisation but refuses to recognise the Brethren?
Garth Christie: No, as far as I am aware we haven’t personally asked them that question, but it does demonstrate the inconsistency. Just for the information of people here, there are just over 16,000 Brethren in the UK, just over 300 churches or meeting halls, and I do believe the Druids are an organisation of about 350 members. I am not saying numbers should come into it, but the whole focus of what we do, our belief, our confidence, our guidance for life, is the Holy Bible, the teachings of the Lord Jesus and the apostles, and we try to take that fellowship out into the wider community.
Q228 Robert Halfon: Bigger Tesco-type charities, and especially ones that spend lots of money on political campaigning, can afford to spend hundreds and thousands on tribunals. What has been the total cost of the tribunal process to the Brethren so far and how hard has it been as a religious organisation to raise that kind of money?
Garth Christie: We started a dialogue with the Charity Commission seven years ago; it took seven years to end up in a refusal. We think that is far too long. The costs so far run into many hundreds of thousands of pounds. If we ended up going all the way to Strasbourg, which we are prepared to do because we think there is a principle involved here, we don’t know what the end costs should be. What concerns me, Mr Halfon, is that because of the size of our organisation, if you break that down per head it is manageable, but of course that is then a resource that can’t be used for other charitable activities, so it is wasted money as far as we are concerned. What concerns me is that across this nation there are many hundreds, thousands of small independent free churches full of genuine Christians, genuine believers, and if they were put under the pressure that we have been put under by the Charity Commission they would have to shut the door, it would be curtains for them.
Q229 Robert Halfon: Final question. Given the Charity Commission’s recognition of the Druids, do you accept the view of some people that there is anti-Christian bias in the Charity Commission and that the Brethren have not been treated fairly?
Garth Christie: I guess the Charity Commission, to be fair to them, have been given what would seem like an impossible task. Our belief is that it is Parliament’s matter to make the law clear and that law should be based on court cases and history that has been built up over hundreds of years. We had a High Court judgment as recently as 1981 that proved, one, that we are a charity and, two, that we are for the public benefit. So suddenly here we are, not all that long after, back into the same fight, and we would like this law to be so clear that in 30 years’ time we are not in this tangle again.
Q230 Alun Cairns: I wanted to pick up on a point that Mr Halfon mentioned. I am familiar with the work that the Christian Brethren do, certainly in South Wales, partly in my constituency, but largely in Cardiff. You mentioned in response to Mr Halfon that until you published this you were not necessarily familiar with the detail of the breadth of the work that was done. Has publishing a document like this detracted from the work that has gone on because you have had to focus your efforts on seeking to provide the evidence rather than getting on with the work that you would do instinctively?
Garth Christie: What has been a huge distraction, probably more than you are alluding to, is the many hours I spend. I am a business owner but I probably spend 95% of my time in charitable work. What has been a huge distraction, particularly for me personally, is the many hours, weeks and months that this tussle with the Charity Commission has caused, which I would far prefer to be using to help the public.
Q231 Lindsay Roy: The Brethren has done some excellent work in my constituency in Scotland. Does it still hold charitable status in Scotland?
Garth Christie: I am doing a lot of talking. Does one of my colleagues want to answer that question? The answer is yes, isn’t it?
Bruce Hazell: Yes. What we are concerned about is that a trust could be a charity in Edinburgh for example, but in London that same type of trust would have its charitable status called into question.
Q232 Lindsay Roy: Do you know why that is the case? Why is it accepted in Scotland and not in England?
Bruce Hazell: We would like to explore that further, as to why that should be. There should not be inconsistency across the border.
Garth Christie: The answer would be, Mr Roy, that we would believe the law, as set down by Parliament, is being interpreted fairly in Scotland but we have run into this problem in England.
Bruce Hazell: Furthermore, we are concerned that if there is this inconsistency, how far will it spread? They are looking at the Charity Commission in Australia, New Zealand and what will be the implications of this uncertainty?
Q233 Lindsay Roy: Are you suggesting the Charity Commission should look to Scotland to learn some lessons?
Bruce Hazell: Exactly. England needs Scotland.
Lindsay Roy: Good. I believe that too.
Q234 Paul Flynn: In your evidence you say, "In accordance with our belief, based upon the Holy Bible, we practise separation." Where does that occur in the Bible?
Bruce Hazell: Can I answer that one, Mr Flynn? I would like to point you to the King James version of the Bible.
Paul Flynn: Please do.
Bruce Hazell: It has been said to be commanded to be read in churches and in Matthew’s gospel, the beginning of the Lord’s service on earth here, it says, "Man shall not live by bread alone, but by every word which goes out through God’s mouth." Then John being the last writer, Mr Raven spoke of John’s gospel. He was a man who worked in the Admiralty and lived in Greenwich near where we live. He spoke of Christ coming in as the light of the world and the prayer in John 17, when the Lord says, "I pray not that thou shouldest take them out of the world, but that thou shouldest keep them from evil. They are not of the world, even as I am not of the world." When the Lord was here, he was the scriptures. He was everything. He knew the prophets. The only thing they had against him was that he said that he was the son of God. He was crucified, and after his death, burial and resurrection, when he went on high, the Holy Spirit came at Pentecost. That was the inauguration of Christianity. What we hold is to the beginning, and St Paul’s teachings, the doctrine and teachings that are contained in the Holy Scriptures. That is our sole guide in our practice and in our lives.
Q235 Paul Flynn: Sorry to interrupt you, this is very interesting, but I haven’t noticed anything in the excerpts from the Bible that you have read that says that you should remain separate. What are your views?
Garth Christie: Look at 2 Timothy 2, where it says, "Nevertheless, the foundation of God standeth sure, having this seal. The Lord knoweth them that are his". That means the Lord will know true believers, and that, "Everyone that nameth the name of Christ depart from iniquity." That would be our basis.
Q236 Paul Flynn: So you regard anyone who is not a member of your group, Plymouth Brethren, Trinity Brethren, as people living in iniquity?
Garth Christie: Absolutely not.
Q237 Paul Flynn: That seems to be what you are reading out to us, are you not?
Garth Christie: It is saying, "Let everyone that nameth the name of Christ depart from iniquity." The world is full, as I am sure you will appreciate Mr Flynn, of many true believers of the Lord Jesus Christ.
Q238 Paul Flynn: Can I give you an example of people who set up a church in order to get the tax breaks from their charitable status? They call themselves Pastafarians. They believe in a superior being who is a great blob of spaghetti in the sky. I raised this with the Charity Commission and they said they probably would be accepted as a charity because they believe in a superior being. When they are approached and told that it is ridiculous, they say, "Well, the idea of an old man with a grey beard in the sky is equally ridiculous." Nothing against old men with grey beards.
Charlie Elphicke: They are ridiculous.
Paul Flynn: We are in an extraordinary position in that you come here as people doing work, which in your eyes is good work, and you are struggling to get charitable status, and we have just seen the greatly privileged public schools who have obtained charitable status. Do you think it is because you have never had a member of the Plymouth Brethren in the Cabinet or in politics? Do you take part in politics, or are you separate from that?
Bruce Hazell: We pray for the upholding of the Government. We believe that God sets up kings, deposes kings. We respect authority as ordained of God. If I could just finish what I was saying to you, Mr Flynn.
Q239 Paul Flynn: Why doesn’t God give you charitable status?
Bruce Hazell: If I could just finish. We were speaking about the apostle Paul and his teachings. What he said in his epistle to the Galatians was, "Far be it from me to glory, save in the cross of our Lord Jesus Christ, through whom the world is crucified to me, and I unto the world". That is the way that Paul lived. After his conversion, he preached Jesus as the son of God. That is simply what we are holding to as the truth, as contained in the scriptures. If I could just give you John, as the last writer, says, "I have set before thee an open door which no one can shut because ours are little powers and has kept my word and has not denied my name". The word of scriptures means so much to us. Right at the end of the book, it says, "And if anyone takes from the words of this prophecy, God shall take away his part from the tree of life and out of the Holy City, which are written in this book".
Q240 Paul Flynn: I won’t quote from the Bible, where there occurs things that you and everyone would find unacceptable, particularly in the Old Testament. If we can get down to who you are. I had a group in my constituency called the Exclusive Brethren. They no longer meet, they no longer exist I don’t think. Who exactly are you? Are you the same as the Exclusive Brethren? Why do you call yourselves Plymouth Brethren? There was another name mentioned over there. What distinguishes you from other religious sects?
Bruce Hazell: In 1828 Mr John Nelson Darby was born in Westminster. He was baptised in St Margaret’s Church. He went to Westminster School. He lived in Plymouth and in the early part of this century we were known in America as the Plymouth Brethren Number 4. While the word Exclusive Brethren in the 1960s would have been put to us, I think there is a misunderstanding and I would like to clear up that myth. It is exclusive from evil, as I have read to you from the Bible, and we are known as the Plymouth Brethren Christian Church.
Q241 Paul Flynn: If you are exclusive and you believe in separation, that suggests that there is a division between your group and the rest of society, which would possibly be a reason why you should not be given a charitable status.
Garth Christie: We go out into society and we preach the gospel on the streets. I do not have the figure here, but I think as an organisation we probably give away more free literature on the streets through the street preaching. That has a beneficial effect.
Q242 Paul Flynn: In your view, yes. Why do you want charitable status so much? Why does it matter?
Garth Christie: We have always had it.
Q243 Paul Flynn: What advantage is it?
Garth Christie: All sorts of advantages.
Q244 Paul Flynn: Can you list them? We just heard from the public schools man that there were no financial advantages to charitable status. I am perplexed by that answer. Do you see it as a financial advantage?
Garth Christie: Certainly, one of the things that has helped us is the financial advantage. Being a charity there is no denying that. Members put in tax money. As believers in the Lord Jesus we are totally righteous in our business affairs, we do not evade tax and that sort of thing. We declare what we earn, and then we take advantage of the gift aid provisions, that the Government has set up to encourage charities, to fund our churches and to fund the good works that we then go out into the wider community with.
Q245 Chair: I do not think the Charity Commission has a particular grudge against you as individuals.
Garth Christie: Thank you.
Chair: Nor does it question whether you, as individuals, act for the benefit of the public, or indeed that your interpretation of Christianity demands that of you. The question is whether you as an organisation act in the public benefit. Can you give an example of how your organisation acts in the public benefit, a field that the Charity Commission have ignored?
Bruce Hazell: The provision of meeting rooms and gospel halls, which are places of public worship, are open to the public. We distribute gospel tracts and Christian literature; we have regular street preachings in towns and cities throughout the UK. There are over 500 street preachings each week with 1,800 preachers, and 30,000 gospel tracts are given away every week across the UK. There is maintenance and support of families; we care for young people, care for old and disabled people, visiting old people’s homes and nursing homes. There is employment of 4,500 non-Brethren. We have opened our hall in London. We have opened it twice for people to come in. The first time there were over 400 Bibles given away, over 200 people came. The second time there were 160 people; there was hot food and drinks, free Bibles and gospel booklets.
Q246 Chair: It could be argued, Mr Hazell, that the Conservative Party also does this sort of thing, that we care about our people, we visit old people’s homes, we disseminate literature about the Conservative Party, we think the Conservative Party is a good organisation, but it does not make us a charity. What is the point that the Charity Commission is missing that makes you eligible as a charity?
Bruce Hazell: If I can quote Florence Nightingale, "The old Romans were in some respects superior to us. They had no idea of being good to the sick and the weak, that came in with Christianity. Christ was the author of our profession. We honour Christ when we are good nurses. Kindness to sick man, woman and child came in with Christ.".
Q247 Chair: That applies to you as individuals. How does it apply to you as an organisation?
Bruce Hazell: As we gather in these places of public worship and we represent a section of the public, the teachings that are in our meetings, they are disseminated as we go out in our businesses, shopping, travel, to hospitals, and to our neighbours.
Q248 Chair: So as an organisation you organise these activities?
Bruce Hazell: That is right.
Paul Flynn: I am sure your teachings are benign, but I think if I was lying in hospital ill and you visited me it is the most likely thing to give me a relapse than almost anything else I can imagine, someone standing at the end of the bed reading texts to me.
Robert Halfon: Everyone is entitled to their point of view, but can we treat the witnesses with respect?
Q249 Paul Flynn: The people that you visit in hospitals are they members of your organisation, of the Brethren, or do you visit members of the general public?
Bruce Hazell: That is a very interesting question Mr Flynn. We would visit members of the Brethren, obviously.
Paul Flynn: But you believe in separation.
Chair: Please let Mr Hazell answer.
Bruce Hazell: There would be many persons that would not be members of the Brethren that we would have spoken to, given tracts to, given succour to, in the last days of their life.
Q250 Paul Flynn: In spite of what Mr Halfon is saying, there are many people that would find your attentions, preaching in the street, handing out literature, visiting them in hospital, unwelcome.
Bruce Hazell: We would not resile from it, it is our life, Mr Flynn.
Chair: A very straight answer.
Q251 Robert Halfon: Going back to the Chair’s question, is it not the issue that, compared to other religious organisations that have been given charitable status, you, the Brethren, have been singled out unfairly. Would you agree with that point or not?
Garth Christie: We certainly feel we have been singled out. One of our primary concerns would be if this is successful, going back to what Mr Flynn is saying, Christianity has been the backbone, you might say, of society in the United Kingdom and Christianity is under pressure in the secular society. People are entitled to their own views but for those that believe in the Lord Jesus Christ and love him, that view should be respected. The fact that somebody else might be from another religious persuasion, or of no religious persuasion, that is part of this great multicultural society in which we live. I would like to come back to the fact that we would be one of the biggest donors, as an organisation, for the British Heart Foundation. When I say as an organisation, it would be what the members are encouraged to do and for the British Heart Foundation we have recently collected over 2,200 bags that we have submitted to them. We could give you a whole list. In this publication, which the Charity Commission have, you will find a whole list of the different things we do for the wider community. I have probably lost sight a little of the question.
Q252 Robert Halfon: As someone of the Jewish faith, could you confirm that I would be welcome to come to your service on a Sunday morning and sit in your church?
Garth Christie: Absolutely.
Bruce Hazell: You would be welcome, Mr Halfon, as indeed would all the members of the Committee.
Garth Christie: Anyone who would like to attend one of our services, even Mr Flynn, you are very welcome to come along.
Bruce Hazell: We would be glad to see you.
Q253 Robert Halfon: I recently attended an event you did, just literally outside my constituency, at which you were providing food for many hundreds of people, particularly those from disadvantaged backgrounds. Could you describe the event and what you did?
Bruce Hazell: We had some leaflets printed and we had younger members of the Brethren go into the high streets, and they would have had a sign on them saying, "Free lunch", and they would have been giving out the leaflets. Interestingly enough, just recently we had one in the London hall. As they came in, they did not say, "Where is the free lunch?", they said, "We want the free Bible." It was really wonderful to see them sit down and we talked to each other.
Q254 Robert Halfon: Can I confirm that those people who turned up at the event, and I saw there were many people there, were not asked whether or not they were members of the Brethren or had a particular faith before they were given food or welcomed?
Garth Christie: Absolutely.
Bruce Hazell: Interestingly enough, on our last one we did a little questionnaire. We did not want to intimidate anybody, but they very happily filled it in. What came out was really a demonstration of the love of God to the world. They said they were longing for more of this to be done so that the message of God’s salvation could be spread. That is what we are doing, really. We are under the shelter of the blood of Jesus and we just like to proclaim that to all men.
Garth Christie: This just a little story that might interest you. I am based in Leeds; I preach in the centre of Leeds. We were having an open-air preaching. We did not know at the time that a man going by was actually converted by a preacher on the street. That man went on to become a missionary in Africa, so he is doing his bit to move on God’s work. We only heard about it when he came back to England, where we picked up the story. So you do not know, the Lord speaks in the gospels about the sower scattering the seed, it falls where it will. That is God’s great work.
Q255 Charlie Elphicke: Nicola Evans, as a lawyer what really is the difference in what we have heard between the Plymouth Brethren and the standard Church of England or the Catholic Church? From a charity law point of view, what is the real difference? I am struggling to see that there is any difference at all here.
Nicola Evans: I would similarly struggle. Essentially, as you have already heard this morning, in determining whether an applicant for registration is a charity, it is the test that has been set out in the Charities Act 2006. The first question is, is the purpose within the list of purposes, or descriptions of purposes, in the Act. In this case, we are looking at advancement of religion. The second question is whether that purpose is for the public benefit. This is where we look to case law. As you have already heard this morning, it is not necessarily straightforward but there is some help in the case law. As we have also heard, in 1981 there was a case of a Brethren charity that was heard in the High Court and it was determined that it was a charity, for reasons that you have heard. For example, the fact that they go out and preach and that people are welcome to their services were reasons why the High Court found in their favour. The position we have now is that, apparently from something in the Act, that case law, and indeed other case law, may now be in doubt. That seems to be where we have an area of doubt arising. This seems to be because of the apparent removal of the presumption in the Charities Act, because the Charities Act preserved the meaning of public benefit found in the case law but said that it was subject to the removal of the presumption. The question is that, if any of that case law is thought to rely upon a presumption, that case law may no longer be good precedent. That is where the area of doubt comes in.
Q256 Charlie Elphicke: Just to follow up on that, does that therefore mean that a charity linked to the Church of England, or indeed a Catholic Church charity, would have similar problems with the Charity Commission in principle? Is this a case of the Charity Commission, under the old regime of Dame Suzi Leather, lashing out and attacking someone they think is weak in order to open up the thin end of the wedge?
Nicola Evans: I think, as has already been mentioned today, the Charity Commission has been given a very difficult task here and it is trying to interpret the law, the same as we all are. I think the difficulty is that when you have a question of case law that you think was established, as we have already heard, there are a lot of areas of doubt in charity law. But, at least in some cases, there were some areas that we thought were not in doubt. When you have a question that case law that you thought clarified an area may no longer be good law, it does raise the question of what else is unclear. So it is difficult to answer your question about whether a charity of another faith group, for example, may have similar problems. The answer is quite possibly yes, depending on how the law is interpreted.
Garth Christie: Could I just read you out what was included in the refusal letter2 we got from Kenneth Dibble from the Charity Commission. This was the letter when our charitable status test case was refused. He says, "This decision makes it clear that there was no presumption that religion generally, or at any more specific level, is for the public benefit, even in the case of Christianity or the Church of England. The case law on religion is rather ambiguous. Our view is that the definition is rather dated. It is our job to define it adequately". We would feel that was a job for Parliament rather than for the Charity Commission.
Q257 Charlie Elphicke: Do you feel in your heart of hearts, as the Charity Commission has carried on in your dealings with them, that they have a policy or an approach that effectively discriminates against faith groups?
Garth Christie: I would not be qualified to answer that question. You might say why did we not do more upfront? We followed the Act and we were reassured that it was not the intention of Parliament that the situation we find ourselves in today should have ever happened. The Minister at the time was Mr Ed Miliband, and answering a question he said, "I want to reassure her that removing the presumption that the advancement of religion provides public benefit is not intended to lead to a narrowing down of the range of religious activities that are considered charitable, nor is the process intended to be onerous for individual religious institutions". We found it a very onerous road we have had to tread.
Q258 Charlie Elphicke: That is the intention of Parliament. Moving to the Charity Commission and their dealings with you, the concern of many of us is that they are actively trying to suppress religion in the UK, particularly Christian religion, with a kind of North London, Hampstead secularist approach. Would you share those concerns that many of us hold?
Garth Christie: I think we would share the concern. Could I just read you something that Dame Suzi Leather said as Chair of the Charity Commission, which also gave us reassurance, so we do feel that we have been a little bit misled. She stated in her address to the church’s main committee in December 2007, "Religion is at the very foundation of charitable activity. Firstly, let me state categorically that advancing religion is, and continues to be, a recognised charitable purpose". She went on to say, "Please be assured there will be no political correctness ordered by the commission. We have no right, reason or desire to interfere with either the forms of worship or the teachings or ideas they further, unless, unsurprisingly, they are against the law". You can probably sympathise a little bit as to how we feel today.
Q259 Charlie Elphicke: That is not true then, is it? What Dame Suzi Leather wrote to you is actually untrue, inaccurate and misleading given the events that have followed, is it not?
Bruce Hazell: Could I please add something here. Discrimination is a strong word; we do believe that this is an attack upon Christianity.
Q260 Charlie Elphicke: Would suppression be better?
Bruce Hazell: This amounts to suppression of religion, where charities have been given different treatment. Over a period of seven years, what we understood to be a constructive dialogue, there was an application for registration on behalf of the more than 200 trusts in 2009, and in 2011 the Charity Commission indicated they were going to make a reference, that would have included the Attorney General, to the Upper Tier Tribunal. After the two cases-the ISC case and the Benevolent Funds case-that was dropped, so we had no other option but to put in an appeal. After this long period of time and delay we feel that we have not been fairly treated.
Garth Christie: I would also go on to say that we believe this has human rights implications, bearing on the freedom of religion.
Q261 Charlie Elphicke: One last thing. The Charity Commission seem to claim that the reason they turned down the Exclusive Brethren is because it is exclusive, and no one else is allowed into a service. Yet you are saying that everyone is welcome to come in and join in our services. Even a Jewish person, like Mr Halfon, is welcome to come and join in those services. Is it then not the case that the Charity Commission are just incompetent, and they have got muddled, or are they wicked and have deliberately decided to skew the decision? Which do you feel it is, and do you not just find it generally odd given the evidence that has been given to this Committee?
Chair: You do not have to answer that question.
Garth Christie: I think we would be on safe ground if we just say that we agree that it does seem very odd.
Q262 Kelvin Hopkins: One very broad question. I have been waiting for some time to ask if we could not overcome all these problems by simply going to the German system where they have a church tax? The money is shared out according to the registered membership of the different churches, and humanists like myself are not required to pay the tax. That would solve all the problems. Churches would receive some taxation funding, given by people who support the churches, and others who do not support churches would not have to pay.
Chair: I have to say that question is slightly beyond the scope of our inquiry.
Nicola Evans: I would say it is something to be considered but it would mean a fairly fundamental change to how charity law has been created and evolved in this country. It is probably not something to be entered into lightly but worth considering.
Q263 Chair: Can I ask about the process that has led you into this situation? Maybe it is a question for Nicola Evans. Supposing the Charity Commission did legitimately have a view about religious organisations and their charitable status that was not reflected in decisions so far made about religious organisations, that they believe that the 2006 Act has moved things on, or public opinion has moved on, on how public benefit should be interpreted. How would they best go about implementing that view unless it is their chosen method, which is to test this matter through the tribunals?
Nicola Evans: The Charity Commission can only apply the law. My understanding in this case is that their difficulty is the point I made earlier about the presumption, and because of the reference in the Act to the fact that the previous case law, insofar as it relies upon a presumption, may no longer be good law. That is what is giving them the problem. It is not necessarily a point about a religious charity per se, it is a question of they think the case law is based on a presumption. They can only apply the law. One of the difficulties here-and maybe this is something that is within the scope of the inquiry-is that at the moment the process for trying to clarify an area of law seems to rely upon it being done at individual charities’ expense.
Q264 Chair: What is the alternative way they should adopt?
Nicola Evans: We think possibly one way that the Charities Act intended was by creating the tribunal. One difficulty is that, as you have already heard, this sort of very case heavy case is very "High Court", if you like, in nature. It is quite difficult to fit that within a tribunal structure that is any more economical.
Q265 Chair: As at present there is no other way for the Charity Commission to test the law?
Nicola Evans: The only other way is also to talk to the tribunal, which is by way of a reference.
Q266 Chair: Are they allowed to apply to the tribunal for a declaration?
Nicola Evans: In essence, what happens is either the Charity Commission, with the permission of the Attorney General, or the Attorney General himself, refers a question for clarification to the tribunal.
Q267 Chair: This would have avoided picking on an individual charity, dragging an individual organisation into dispute and all the time and money that that involves? There is an alternative process that the Charity Commission could have pursued?
Nicola Evans: Yes, although the references, as you have already seen, do tend to involve charities because if a charity thinks that they may be affected by the decision they can apply to be joined. Of course, if you think you may be affected, you may feel you ought to apply to be joined. It is not perfect in terms of not using charity money, but it is a mechanism.
Q268 Chair: But if all religious organisations thought themselves in danger from the implications of a ruling, they might not leave an individual organisation on its own?
Nicola Evans: Possibly, yes. One thing that we have been looking at in terms of possible recommendations is whether the Attorney General may take a greater role, for example whether there may be a process by which he could produce an opinion in the event of a lack of clarity in the law. If the Charity Commission followed that opinion then essentially that may pre-empt an appeal to the tribunal, unless the charity wanted to appeal the decision.
Q269 Chair: Have they exchanged information with you so that you know what their legal advice is in terms of counsel’s opinion, or do you not seek that?
Nicola Evans: They being?
Chair: The Charity Commission.
Nicola Evans: I am actually not representing in the tribunal case.
Q270 Chair: Have you seen such advice?
Garth Christie: Yes, we do have a lawyer here. Is he allowed to speak?
Chair: I am afraid not at the moment, no.
Garth Christie: I do have a list here that we would like to submit to you. It covers some specific recommendations for the Committee, which we would like to leave with you. What we feel is urgently required is clarity in the law, expediency in the Charity Commission-it has now been seven years for us, and we would suggest a recommendation that an application like ours should have a time limit on it, say three or six months-and greater checks and balances in the current process.
Chair: If you wish to leave that note with us as supplementary evidence, we would welcome that.
Q271 Greg Mulholland: I am not sure we are getting to the nub of the issue here, and how helpful some of the discussion has been. In the end, the problem seems to be, when I listened earlier to the discussions with the Independent Schools Council, that there simply is not an adequate set of criteria for establishing what a charity is. If I can put it to you and ask for a fairly simple answer-I happen to be someone who is religious, but would you accept that advancement of religion alone is not sufficient to achieve charitable status? A good example would be entirely closed orders of religious monks or nun who have no contact whatsoever with the outside world and simply pray. I would believe the praying is a good thing, religious people might think that, but I do not think that is a charitable benefit. If you agree with the fact that advancement of religion alone is not sufficient for charitable status, do you not also agree that there should be a list of criteria that any organisation has to fulfil to be given charitable status?
Bruce Hazell: If I could answer that, Mr Mulholland. We do feel it that we have to come here today and go over the detail of the faith that serves because we do believe as a section of the public and attending our services, our meetings, that does demonstrate public benefit on its own. You referred to the cloistered nuns, but we would go out from those services, meetings, and proclaim the word of God to all mankind. We do believe that as a public place of worship, and the advancement of religion, there is public benefit in that.
Q272 Greg Mulholland: Are you disagreeing when you say that you believe that the advancement of religion alone should grant charitable status?
Garth Christie: I may not have understood the question too well, but you might, for instance, have an extremist group who has views to incite violence. Obviously the Charity Commission has a role to fulfil because we would be of the view that anyone who was inciting violence is clearly not for the public benefit and clearly they should not be charitable. We follow that. But as somebody who is doing something for the promotion of religion, you might get an organisation who are printing Bible tracts or something like that-I am probably getting out of my depth here, Nicola.
Q273 Greg Mulholland: Forgive me, your view is perfectly valid, I am not saying it is not, but you are saying the advancement of religion alone is sufficient for charitable benefit, and I think you would probably understand some people would question that. If you are saying that, why have you produced what is very helpful about what the Brethren do in terms of what anyone would regard as charitable works, for example, in terms of giving people dinners and having that broader community benefit? Those two positions do not seem to really fit with each other.
Garth Christie: We feel that we are on safe ground because we are clearly, and I think we have demonstrated this morning, doing a lot for the public benefit. But let’s say there was an independent free church, a chapel tucked up in the Yorkshire Dales, and that chapel has a small congregation of 20 elderly people. I do not think, because of the new Charities Act, that a chapel like that should be under any threat of losing its charitable status.
Q274 Greg Mulholland: But again, 20 people in a chapel in the Yorkshire Dales will do a huge range of things inspired by their religion in their local community. That is how it operates. I must say the public benefit document you produced was very helpful, and of course you will be well aware that there is a big lack of understanding about the Brethren. I have learnt a lot about the Brethren that I knew little about before. I now know about the split in the 1840s when the Exclusive Brethren split from the Open Brethren, and they are quite different. It is important to know that this is focused on an Exclusive Brethren gospel hall. I am not for one minute saying that an Exclusive Brethren gospel hall is the same as cloistered nuns who deliberately choose to have no input with people outside. That is not the position, so this is not me trying to pin you. I know people from my local Exclusive Brethren hall who do indeed engage in society. But I am asking you from a point of principle, you are clearly and helpfully showing that you do broader community works, so if that is the case do you not believe that there should be a clearer and more helpful-I am not saying definition, I accept that is difficult-set of things that it could be expected for any good charitable organisation, religious or not, to be performing that then benefits the community? I believe it would. Could that be a helpful way of avoiding this whole situation? If you then produce your document that fits within that.
Bruce Hazell: Can I answer this, Chair? This public benefit document was a submission to the Charity Commission, so they were aware of the scope of what we did. This is why we are at a loss to know why we are here today. We believe the problems now facing the Plymouth Brethren Christian Church stem from a lack of clarity arising from the Act, combined with the statutory obligation placed on the Charity Commission to produce public benefit guidance. We do feel that section 4(2) of the Charities Act 2011, which has replaced section 3(2) of the 2006 Act, should be repealed. In the meantime, section 4(2) and the Commission’s public benefit guidance should be suspended pending a review by the Law Commission on the meaning of charity and the obligation of the Charity Commission to produce public benefit guidance.
Nicola Evans: Coming back to your point about whether you should have some criteria, albeit not a definition, as you have heard this morning, the concern I would have with that is that it could be inflexible and not grow with the law. You are saying that of course you want something that is clear. I think we would say that we thought the case law was clear. It seems to be this point about the presumption that has raised a doubt that we did not know was there. In this case, there is High Court authority that was very clear that said the Brethren live in the wider world, they let people in to worship, so that passes the test. In a sense we already had some criteria; the difficulty now is that that is in doubt. Even if you had a list of criteria, I am not sure it would necessarily solve the problem because we thought we had that here.
Q275 Greg Mulholland: Do you think perhaps some of the problem here is that you have not reached out sufficiently in the past? I do not mean that as a terrible criticism, I think we all need to look at ourselves in that situation. Many MPs have enjoyed meeting people from their local Brethren community and have heard about the works they are doing benefiting the community. It is unfortunate that we have been hearing this now as a result of this and not in the past. Do you think that from now you will have that communication and you will continue to demonstrate the work you are doing is benefiting the wider community?
Garth Christie: We are not a group that is apt to go round seeking publicity. When Christ himself was on earth He said, "I am among you as the one that serves". He served in a very lowly way that was missed by many, and so we are not here to make a lot of razzamatazz about what we are about, the public benefit that we told you about this morning. For example, I grew up in Leeds as a young fellow; I probably started attending what we call the open air preachings at the age of 16. It is something we have always done.
Bruce Hazell: Could I just add to what Mr Christie is saying, Chair? We referred to Mr John Nelson Darby. He would have helped direct tens of thousands of Francs to the Franco-Prussian war effort in 1871. The Brethren would have helped in the construction of Montgomery’s caravan during the war. I have a letter here from a member of the Brethren in 1957, distributed to the inhabitants of Luton, inviting them to the preaching. We put contact details on every one, at the back of every gospel tract now, and that has flowed right through to the present day. We feel that the binding precedent as set in the Holmes case in 1981 should not be called in to question through the abolition of presumption, when we feel it was only an assumption anyway. It has left a lack of clarity.
Greg Mulholland: We certainly agree with that.
Q276 Paul Flynn: You will see that this House is at prayer at the moment and it is a Christian prayer, an English church Christian prayer. It is not the Church of Wales, Church of Scotland, Catholic Church, or a Muslim church. There are huge advantages given to Christianity in this country, it is part of the tradition. You answered Mr Elphicke’s question suggesting that Christianity is being discriminated against or persecuted. I believe you represent perhaps 1%, 0.5%, of the Christian population of the country. If there was discrimination, if there was any sense in what you say, shouldn’t it show itself somewhere else, when in fact Christianity enjoys, as it always has, a hugely privileged position in this country?
Garth Christie: We are not here in any way to be critical of the Charity Commission. As we said earlier, we think they have been given a thankless task and really we think it is for Parliament to make the law clear on these points. It might interest you, I noticed a quote from a former Chairman of this Select Committee, Tony Wright, who said, "Reading all the documents and guidelines is like juggling with jelly, trying to bring religion under the orbit of this public benefit test".
Q277 Paul Flynn: I remember that. We have been on this Committee for a very long time. Isn’t it true that it is because of your personality, your character, and your belief in separation and exclusivity that you are different to 99.5% of the rest of the Christians in the country? You do attract that attention that suggests you are not worthy of charitable status.
Garth Christie: Would you not agree that is our human right? Would you agree with that, Mr Flynn?
Paul Flynn: Absolutely, entirely. I have no desire to interfere with your rights. I think it is ridiculous to suggest that Christians are being persecuted as you and Mr Elphicke agree.
Garth Christie: Persecution is not a word that either of us has used here this morning.
Q278 Paul Flynn: Discrimination?
Garth Christie: Mr Elphicke can probably remember the term he used.
Chair: Mr Elphicke used the term suppression, but it was not a term that you used yourself.
Q279 Charlie Elphicke: I understand why you are being generous to the Charity Commission, because you hope to negotiate with them. You hope they will see the light and be converted on the road to the Upper Tribunal, and I have to say I do not think they will. I think they are committed to the suppression of religion. I do not believe they believe in the freedom of religious association.
Chair: That is your opinion.
Charlie Elphicke: I have to say that I do think you should be a bit firmer and tougher because you are the little guys who have been picked on to start off a whole series of other churches that will follow you next. You should be strong.
Chair: Mr Elphicke is giving you his advice, not asking a question. Have you any comment?
Garth Christie: We appreciate your advice, Mr Elphicke. We will be strong, we will not be backing down.
Q280 Chair: Can I just finally ask, is it really the burden of your case in front of this Committee, whatever the merits or demerits of the Charity Commission view, that this process of testing the law on a relatively vulnerable organisation, putting you through huge time and expense is a rotten way to decide what the Charity law means? If I am correct, you are saying that there are alternative means of establishing what the law means without necessarily dragging a small organisation through this very difficult time.
Bruce Hazell: We would like to give you some recommendations, Mr Jenkin, and we can assure you that we are fighting for the community.
Q281 Chair: Is there anything that Ms Evans would like to add on that point I am making?
Nicola Evans: I would agree. Although, as I say, there is a reference process, it is not perfect. If there could be some facility that could pre-empt litigation rather than for every area of doubt having to go through an expensive litigation process, that would be very helpful.
Q282 Chair: Or for Parliament to make its views clearer?
Garth Christie: Correct.
Q283 Robert Halfon: Is it not the case that the many hundreds of thousands of pounds you have to spend on legal cases, you could have spent on charitable activities in the community?
Garth Christie: Absolutely true.
Q284 Robert Halfon: And is that not a tragic waste of money.
Garth Christie: Absolutely and totally.
Q285 Chair: Thank you very for much coming today. Nobody can possibly say you have not had a fair hearing today, even if some of the questions have been quite robust. We are very grateful for your robust responses. Thank you very much indeed.
Garth Christie: We are very glad for your time. We do not mind any of the questions. We welcome scrutiny, that is not a problem to us. If any of the members have further questions they would like to send in or approach us about, we welcome it. We have nothing to hide.
Chair: Thank you very much indeed.
 Note from witness: Mr.Kirkpatrick states that his firm does still act for Shelter but that he personally has not undertaken work for them for many years.
 The Plymouth Brethren have submitted supplementary written evidence (CH 51) concerning this letter. Additional written evidence has also been received from the Charity Commission (CH 48). The letter from Kenneth Dibble has been published on the PASC website.