United Grand Lodge of England v Revenue & Customs [2014] UKFTT 164 (TC)

FTT-Tax
United Grand Lodge of England v Revenue & Customs
[2014] UKFTT 164 (TC) · 2014-02-03
[23]“23. Everyone, therefore, is entitled to hold whatever beliefs he wishes. But when questions of 'manifestation' arise, as they usually do in this type of case, a belief must satisfy some modest, objective minimum requirements. These threshold requirements are implicit in article 9 of the European Convention and comparable guarantees in other human rights instruments. The belief must be consistent with basic standards of human dignity or integrity. Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection. The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. As has been said, it must be a belief on a fundamental problem. With religious belief this requisite is readily satisfied. The belief must also be coherent in the sense of being intelligible and capable of being understood. But, again, too much should not be demanded in this regard. Typically, religion involves belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational justification. The language used is often the language of allegory, symbol and metaphor. [Our emphasis] Depending on the subject matter, individuals cannot always be expected to express themselves with cogency or precision. Nor are an individual's beliefs fixed and static. The beliefs of every individual are prone to change over his lifetime. Overall, these threshold requirements should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the Convention: see Arden LJ [2003] QB 1300 , 1371, para 258.[24]“24. This leaves on one side the difficult question of the criteria to be applied in deciding whether a belief is to be characterised as religious. This question will seldom, if ever, arise under the European Convention. It does not arise in the present case. In the present case it does not matter whether the claimants' beliefs regarding the corporal punishment of children are categorised as religious. Article 9 embraces freedom of thought, conscience and religion. The atheist, the agnostic, and the sceptic are as much entitled to freedom to hold and manifest their beliefs as the theist. These beliefs are placed on an equal footing for the purpose of this guaranteed freedom. Thus, if its manifestation is to attract protection under article 9 a non-religious belief, as much as a religious belief, must satisfy the modest threshold requirements implicit in this article. In particular, for its manifestation to be protected by article 9 a non-religious belief must relate to an aspect of human life or behaviour of comparable importance to that normally found with religious beliefs. Article 9 is apt, therefore, to include a belief such as pacifism: Arrowsmith v United Kingdom (1978) 3 EHRR 218 . The position is much the same with regard to the respect guaranteed to a parent's 'religious and philosophical convictions' under article 2 of the First Protocol: see Campbell and Cosans v United Kingdom 4 EHRR 293 . 117. The meaning of religion in Article 132 is of course an autonomous EU meaning.

(b) of the Directive 2004/83/EC (enacted in 2004):

“ (b) the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief; “ 118. That formulation seems to us to differ little from that suggested by Lord Bingham in construing the Convention, that typically (but not always) religion involved belief in the supernatural, that it was not always subject to lucid explanation or rational justification, and that it used the language of “allegory symbol and metaphor”. 119. In R ex parte Hodkin and the Church of Scientologyv Registrar General of Births and Deaths [2012] EWHC 3635 Ouseley J considered whether a scientology chapel was a “place of religious worship”
. Ouseley J did not find himself able to depart from a previous finding of the Court of Appeal that the chapel was not a place of “worship” but he said that he would accept scientology as a religion - accepting the persuasive judgements of the High Court of Australia in Church of the New Faith v Commissioner of Pay-Roll tax (Victoria) [1983] 154 CLR 120, a case which concerned whether scientology was a “religious institution” for the purpose of payroll tax. He said:
“50. The Australian Payroll Tax case also contains a full and careful analysis of the nature of religion and Scientology to explain the High Court’s conclusion that, under the relevant legislation in Victoria, the beliefs, practices and observances of the Scientologist Church of the New Faith were a religion. The judgment is a valuable legal exposition of what constitutes a religion and whether it applies to Scientology. It is sufficient for these purposes to set out the headnote: “ Per Mason A.C.J. and Brennan J. For the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion. “Per Wilson and Deane JJ. No single characteristic can be laid down as constituting a formularized legal criterion of whether a particular system of ideas and practices constitutes a religion, but the following criteria are helpful: that the particular collection of ideas and/or practices involves belief in the supernatural, i.e. a belief that reality extends beyond that which is capable of perception by the senses; that the ideas relate to man’s nature and place in the universe and his relation to things supernatural; that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance; that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or groups; and that the adherents themselves see the collection of ideas and/or practices as constituting a religion. “Per Murphy J. The categories of religion are not closed, but the following bodies are religious: any body which claims to be religious and whose beliefs or practices are a revival of, or resemble, earlier cults; any body which claims to be religious and to believe in a supernatural Being or Beings, whether physical and visible, a physical invisible God or spirit, or an abstract God or entity; any body which claims to be religious and offers a way to find meaning and purpose in life. “Per curiam . The test of religion should not be confined to theistic religions.” 120. The parties’ submissions on this issue were made before the Supreme Court gave its judgment on the appeal from Ouseley J (see [2013]UKSC] 17). That Court held that Ouseley J had been right to conclude that scientology was a religion. Lord Toulson quoted the judgements in the Payroll Tax Case . He said, at [57]: “Of the various attempts made to describe the characteristics of religion, I find most helpful that of Wilson and Deane JJ. For the purposes of PWRA, I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science. I prefer not to use the word “supernatural” to express this element, because it is a loaded word which can carry a variety of connotations. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula.”
The parties provided their submissions on the High Court judgment. We did not seek further submissions from the parties in the light of the Supreme Court’s judgment given the acceptance in that judgment of the guidance afforded by the Payroll Tax Case which had commended itself to Ouseley J. 121. None of these judgments require worship to be a necessary part of the practice of religion or treat it as an indicium of religion. 122. It seems to us that these judgments, read as a guide to the meaning of “religious “ in an English statute, and when taken with the views expressed by Lord Bingham in the context of the Convention, are the best available guide to the meaning of “religious” in Article 132. 123. Miss Shaw says that in order for a body to have aims of a religious nature it must aim to practise or promote religion. She says that in contrast, Freemasonry does not exist to advance, teach or preach a religion. However, it seems to us that UGLE’s aims do include the promotion of Freemasonry and the teaching of its concepts: it would not “survive” if it were not promoted and its concepts not taught in the lectures and ceremonies. Thus if Freemasonry were properly classified as a religion for the purposes of Art 132, then UGLE would have some aims which were of a religious nature. 124. Mr McGurk says that the practice of ritual cannot be described as canons of conduct. We agree that the mere conduct of ritual does not constitute a religion, but ritual of some form is an activity which suggests religion, and if it inspires or is aimed at the acceptance of serious canons of conduct, that weighs in favour of its being a religion. 125. The Grand Principles of Freemasonry are intelligible and concern important matters. They are taught in the language of allegory and metaphor. There is belief in the supernatural. Many of the descriptors used by Lord Bingham are present. 126. But if one tests Freemasonry against Mason ACJ’s and Brennan J’s criteria: belief in a supernatural being and the acceptance of conduct to give effect to that belief, it seems that Freemasonry –just- falls short. That is because (i) as we understand those criteria the supernatural being is the same for all adherents, whereas the nature of the supernatural being accepted by Freemasons may differ according to their particular faith; and (ii) the canons of conduct promoted by Freemasonry are freestanding and not adopted to give effect to the belief. 127. We say “just” because if religion does not demand a belief in a superior being the lack of belief in a single being, and the lack of purpose for the canons of behaviour cannot disqualify a system of belief from being a religion. 128. Of the indicia adopted by Wilson, Murphy and Deane JJ, Freemasonry possesses many, but notably does not possess the quality of proclaiming itself a religion, indeed the opposite. 129. Freemasonry also seems to us to fall just short of Lord Toulson’s description of a religion. Whilst Freemasonry requires belief in a supreme being and teaches its adherents how to live their lives, that rule of life did not, on the evidence before us, arise in conformity with a spiritual understanding, but by reason, in part through ritual, of a code of behaviour. Its moral system did not arise form and was not adequately connected with a non secular or spiritual understanding of man’s relationship with the universe. 130. We conclude, with some hesitation and on balance (and subject to the last sentence of the penultimate paragraph of the next section), but no doubt to the relief of both parties, that the aims of UGLE do not include any significant aims of a religious nature. Aims of a Philosophical Nature 131. The Concise Oxford English Dictionary defines “philosophical” as (1) “ 1 . of or according to philosophy, 2 . skilled in or devoted to philosophy or learning; learned. 3 wise serene or temperate. 4 calm in adverse circumstances; and “philosophy” as: (2) 1 . the use of reason and argument in seeking truth and knowledge of reality… 2a .a particular system of beliefs or set of beliefs reached by this. b a personal rule of life. 3 advanced learning in general. 4 serenity, calmness.” 132. Miss Shaw says that the Three Grand Principles are a personal rule of life, a philosophy of life; and that following those principles is the aim of Freemasonry as shown by the activities and aspirations of Freemasons as such. 133. Mr McGurk suggests that by an organisation with “philosophical” aims is meant a body whose object is to discuss and investigate philosophy. Put another way he says that philosophy is thinking about thinking, or is rationally critical thinking about the nature of the world or the justification of belief, not a rule of conduct. 134. He says that even if “philosophical” is intended to permit the inclusion of bodies whose objects pertain to a particular system of philosophy, the Three Grand Principles cannot be said to be components of a system of philosophy because they are common to almost all civilised normative systems – there is nothing about them which is unique to Freemasonry. Had he put it another way in another country he might have said that motherhood and apple pie is not a philosophy. 135. Lord Denning in R v Registra General ex parte Segerdal [1970] 2QB 697 considered that scientology was “more of a philosophy…rather than a religion”. Its services were instructions on philosophy. Although Lord Denning was not construing an EU Directive, this gives us some comfort that the meaning of philosophy as a rule of life is not rare or arcane and is a potentially fair meaning of the word. 136. In the context of para ( l ) it seems to us that “philosophical” can fairly bear the meaning of appertaining to a rule of life. “Philosophical” lies alongside “religious” and “political”, each of which is concerned with the holding of beliefs and conforming conduct. 137. Further, if “religion” has a meaning which requires some belief in one or more deities or that its practitioners must accept it as a religion or a code of conduct which flows from the numinous, the right to freedom of thought, conscience or religion would suggest that the Directive would not discriminate against cogent and serious belief systems which lacked deities or self-referential description by excluding them from exemption (see Lord Bingham cited above). 138. We also note the formulation adopted by the ECHR in Campbell and Cosans v UK 7511/76; 7743/76, that in the context of the human rights Convention "philosophical convictions" denoted such convictions as were worthy of respect in a democratic society and were not incompatible with human dignity. 139. We conclude that a body whose aims are to promote or practice a rule of life is capable of having philosophical aims for the purpose of Art 132(1)( l ). 140. But in order for a rule of life to qualify it must be possible to say that there is some public interest in the exemption. In the case of a belief system it seems to us that the public interest lies generally in enabling freedom of belief and the public interest requirement would act only to disqualify a plainly obnoxious system (see Lord Bingham’s examples) rather than to require a measurable public benefit. 141. Mr Humberstone’s evidence and much of the documentary evidence was that Freemasonry encouraged not only belief in the three Grand Principles but putting them into practice:
“a system of belief…which offers a framework for the better regulation of our lives”
. We accept that the Grand Principles are generally accepted norms of good behaviour, but that does not in our view prevent them from being a philosophy: the means of their expression, and the emphasis on putting them into practice was enough in our view to make them a philosophy. Poverty, Chastity and Obedience may be more exacting, but love, charity and integrity do not come easily to most of us. Nor was there in the evidence before us anything which suggested that this was in any way an obnoxious system which was against the public interest. 142. The absorption into a Mason's conduct of the Grand Principles may be called self-improvement. Those two words give the impression of something inward looking and without public benefit. But the internalisation of any moral principles may be so regarded, and we do not consider "philosophical" as requiring proof of the benefits of the acceptance of a particular rule of life. Further the clearly expressed desire to promote Freemasonry and to permit it to survive seen in the speeches of the Grand Master indicates to us a proselytising of the code to others - something which was not wholly inward-looking. 143. We concluded that the aims of UGLE included aims of a philosophical nature. If we have misinterpreted the meaning of “philosophical” we would have found that “religious” was wide enough to encompass the tenets of Freemasonry. 144. Whilst greater emphasis may have been placed on the charitable aspect of its philosophy in recent years we detected no change in the relative importance of UGLE’s aim of promoting the teachings of Freemasonry over the period since 1977. If anything it had been displaced somewhat by the aim of promoting charitable actions. Aims of a Philanthropic Nature 145. In RIBI the tribunal said this of the meanings of “philanthropic” and “philanthropy” “Philanthropy is given this meaning in the Shorter Oxford Dictionary:
“Love towards mankind; practical benevolence towards men in general; the disposition to promote the well-being of one’s fellow men.” “Philanthropic means “Characterised by philanthropy; benevolent, humane”, The Oxford dictionary gives the same meaning and additionally “actuated by love of one’s fellow men”
. In Re McDuff [1986] 2 CH 451 …Stirling J said that “an act cannot be philanthropic unless it indicates goodwill towards mankind at large.” At page 464 Lindley LJ could not put any definite meaning on the word:
“All I can say is that a philanthropic purpose must be a purpose which indicates goodwill towards mankind in general” ”. 146. Neither party dissented from these interpretations. It seems to us that, particularly in view of the requirement that the exemption have a public interest, that acts which are intended to benefit only a defined class rather than mankind in general may not be, or be wholly, philanthropic, particularly if that class is small. 147. But we accept that one of the fundamental responsibilities of Freemasonry is the provision of time and money for relief. The practice of Relief is in our view an aim of Freemasonry. We accept that UGLE's aims therefore included the promotion of this practice. 148. We also accept that in practice Freemasons devoted substantial amounts of time and money to charitable works and that UGLE assisted, directed and promoted such activity. 149. Thus we find that Relief was an aim of UGLE. The question is whether or to what extent that aim was philanthropic. 150. The provision of time to good causes (unrelated to Freemasonry in any way) was in our view a philanthropic activity: it was benevolence towards mankind in general. Its encouragement by UGLE proclaimed a philanthropic aim. 151. Whilst it has been accepted that the objects of UGLE’s charities were such as to make them charitable at law, we had some concern that, because of the actual distribution of funds by the charities, the objects of Masonic contribution to the charities, and UGLE’s administration of them, might display – at least to some extent – a principal purpose of benefitting fellow masons or the dependents of fellow masons and thus not to that extent indicate goodwill towards mankind in general, but to a particular subset of mankind. The intimate involvement of UGLE’s officers in the direction of the charities indicated that UGLE’s aim was to encourage charitable donation for the purposes in which the charities’ funds were expended. And if the object of the contributions was not wholly for the general benefit, the object of UGLE in promoting those contributions might not be wholly philanthropic. 152. Some 25 or 30% of charitable monies was expended on persons without any Masonic connection. If, as seems to us to be the case, that division of distributions was the expectation of UGLE, then at least to that extent there was a philanthropic purpose. 153. Some 50% of charitable monies were expended on the dependents of masons, although there was some indication that it may have dropped to this level when the welfare state assumed greater responsibility for ill fortune. There are some 1 million dependents of masons. It seems to us that such a number of potential beneficiaries permits one to say that there was benefit to mankind. But if the gift was encouraged with some measure of expectation that the charities would provide for the donor’s own dependents [2] should the need arise at some time in the future, the object of the gift, and its encouragement, may have a sufficient touch of self interest to prevent it from being philanthropic. If what was promoted was giving which was not philanthropic it seems to us that to that extent UGLE’s aims were not philanthropic. 154. The remaining 25% of the charitable spend was on masons. The same reasoning applies but with greater force. It is not that benefitting others who happen to be masons does not display goodwill towards mankind in general, but that if that is coupled with a hope or expectation of personal benefit, some of the aim loses that quality of benevolence. To the extent monies were paid with the hope or expectation of self-insurance their payment does not seem to us to be an act of philanthropy, and the aim of encouraging such giving does not appear to be a philanthropic aim. 155. But any expectation of future benefit, if there was such, must have been limited. For there could be no certainty of benefit since the availability of funds would depend on the actions of other masons in the future. 156. Overall we consider that not all of UGLE’s promotion of charitable giving can be treated as having a philanthropic aim. 157. It seemed to us that this was an area in which the evidence suggested there had been a change since the turn of the century. There was evidence that the Welfare State had to some extent taken the place of Masonic provision; this and the reorganisation of the charitable and benevolent funds, and the move towards an outward looking body of persons serving their communities suggested to us that the proportion of self interest may have declined since that time. Aims of a Civic Nature 158. In Expert Witness , Chadwick LJ accepted that “civic aims” could mean or include aims “pertaining to citizenship” as well as to municipal affairs. In that case the object for which the Institute was incorporated was for the advancement of justice through fair and unbiased expert evidence. He said that the proper administration of justice was a “central element in the social contract between the state and its citizens” and held that the Institute fell within the exemption. Longmore LJ, responding to the suggestion that this made the definition impossibly wide, said that for a body to have aims of a civic nature: “that body must have objects which promote the relationship of citizens, not among themselves, but with the state of which they are citizens.” 159. Miss Shaw says that participation in a local community to build a better society is just as much part of the social contract as the administration of justice. Mr McGurk replies that it is the “relationship of citizens …with the state” which is crucial to a civic aim. 160. We agree with Mr McGurk. By excluding relationships between citizens from the ambit of civic aims, Longmore LJ was not simply excluding social clubs, but bodies whose aims did not relate to the citizen’s relationship with the state. 161. It seems to us that neither Freemasonry nor UGLE’s activities have any substantial aim which relates to the relationship between the citizen and the state. The charitable activities of Freemasons were largely unrelated to any relationship of citizens with the state, the fellowship and ritual enjoyed by Freemasons had nothing to do with the state, and acceptance of, and living by, the three Grand Principles touched only slightly on a person’s relationship with the state. UGLE’s coordination, regulation, encouragement and promotion of these activities involved or affected no separate relationship of citizens with the state. 162. The closest any of the evidence came to showing a civic aim was the statement in the Aims and Relationships enjoining obedience to the law and loyalty, and the charge read to new Lodge masters. To our minds these injunctions were about the relationship between individual Freemasons and the state rather than the relationship between citizens in general with the state (although they affected a substantial number of citizens) and thus were less clearly of a civic nature. There was however little evidence that this requirement figured prominently in the activities of UGLE. 163. We conclude that at most only a small part of UGLE’s aims were civic in nature. 164. We detected from the evidence before us no change in relation to the importance of this aim in the period since 1997. Other Aims? 165. It seemed to us that the practice of Freemasonry also had social aims and aims of self-improvement. It was a “body of men brought together for intellectual social and moral improvement”
. It provided the benefit of Fellowship, in part through the cohesive effects of shared ritual and some shared secrecy. There was also some evidence of an aim of self improvement in the learning and responsibilities undertaken. The evidence of the way in which Freemasons were prepared for and helped in the roles they performed, and some of the answers to the question Why become a Freemason? – see para 28ff above - supported the impression given that the aims of Freemasonry were not limited to the pursuit of a rule of life, philanthropy and civic duty. 166. We have also noted the role of ceremony and ritual and UGLE's part in its regulation. Mr McGurk argued that “the practice of ritual is performative” while there may be value in doing or partaking in the practice, it is inward looking and not done for the public benefit. We consider that to some extent ceremony and ritual can be an end in itself as well as a way of creating Fellowship or reinforcing the Masonic philosophy. We therefore find that some part of UGLE’s aim was the promotion of Masonic ritual and ceremony. Conclusion 167. We accept that included among UGLE’s aims are those of a philosophical, philanthropic and, to some smaller extent, civic nature. But it has other aims as well. 168. It seemed to us that some of these other aims were aims in themselves and not simply insignificant or ancillary to the qualifying aims. It is true that social intercourse helps people pursue common goals, but common goals also bind people together. Whether one serves the other is a question of degree. Our impression is that the relationship was not simply one of service to the qualifying aims. 169. To some extent also the pattern of the distribution of the charitable spend by the Masonic charities suggested to us at least the vestiges of mutual insurance – the care for masons and their dependents. Thus there was some element reflecting an aim of encouraging mutual benevolence, which we do not regard as wholly philanthropic. 170. The distinction between UGLE and RIBI is this. RIBI’s aim was tro promote Rotary, and Rotary’s aim was to foster service and acquaintance as an opportunity for service. UGLE’s aims by contrast include service to the community but also in our judgment include fostering fellowship for its own sake and care for other masons. 171. Whether or not UGLE’s aims fell within Art 132 (1)( l ) therefore depended on whether these other aims were shown to be minor or ancillary to the qualifying aims.. 172. It seems to us that in the period before 2000 they were not. In that period it appeared that Freemasonry had been more inward-looking and more concerned therefore with mutual benefit and mutual society. The evidence was not sufficient to conclude that the pursuit of those concerns was not a minor aim. 173. In the period after 2000 there was evidence that Freemasonry became more outward looking. We have described the evidence which indicated that Freemasonry was more open and willing to communicate its practices to the world at large and to reach out into the communities in a way it had not done before. But the evidence did not satisfy us that the aims of the encouragement of fraternity, self improvement and mutual care had become merely incidental or ancillary to the philanthropic, philosophical and civic aims of UGLE. 174. We therefore conclude that UGLE had a variety of different aims, some of which came within Article 132 and some of which did not. In our opinion, the aims which did not fall within the exemption were not insignificant and were of sufficient magnitude to cause UGLE to fall outside the words of the exemption in Article 132. Accordingly we dismiss the appeal. Rights of Appeal 175. This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. CHARLES HELLIER TRIBUNAL JUDGE RELEASE DATE: 3 February 2014 [1] Mentioned in the Grand Master’s 2010 address [2] See also “interests of the family are paramount” in the quote from the booklet earlier in the decision

Cited in 3 later judgments